                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Allen E. Tackett,
Petitioner Below, Petitioner                                                     FILED
                                                                            November 17, 2017
vs) No. 16-0963 (Kanawha County 14-AA-93)                                     EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
West Virginia Consolidated Public Retirement Board,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Allen E. Tackett, a former member of the West Virginia Army National Guard
and a former state employee, by counsel Ray Shepard, appeals the September 16, 2016, order of
the Circuit Court of Kanawha County that calculated his active military service credit for his
Public Employees Retirement System (“PERS”) benefits, but failed to rule on his motion for
attorney’s fees. Respondent West Virginia Consolidated Public Retirement Board (“the Board”),
by counsel Ronda L. Harvey, filed a response. Petitioner filed a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the Court finds no substantial
question of law and no prejudicial error with regard to the manner in which the circuit court
calculated petitioner’s active military service credit for his PERS benefits. Therefore, a
memorandum decision affirming that portion of the September 16, 2016, order regarding the
calculation of petitioner’s active military service credit is appropriate under Rule 21 of the Rules
of Appellate Procedure.

        Petitioner was employed full-time in the private sector from 1963 until 1995.
Additionally, in January of 1963, petitioner joined the West Virginia Army National Guard
(“National Guard”). Petitioner served six months of active military duty training during a period
of armed conflict from February 8, 1963, through August 8, 1963. Thereafter and throughout
petitioner’s thirty-two years of private sector employment, he remained a member of the
National Guard and served approximately 848 days of active military service.

       In September of 1995, petitioner became the Adjutant General of the West Virginia
National Guard and, as such, a State employee covered by PERS. Prior to retiring from the
Adjutant General position on February 1, 2011, petitioner applied for retirement benefits and
active military service credit under West Virginia Code § 5-10-151 for his military service prior

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        Petitioner retired in 2011, and the calculation of his active military service credit is
governed by the 2005 version of West Virginia Code § 5-10-15. See Acts of the Legislature,
(continued . . .)
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to September 1995. West Virginia Code § 5-10-15 mandates military service credit for any
member of PERS who “enters the active service of the armed forces of the United States during
any period of . . . armed conflict” when the member is honorably discharged and submits
appropriate documentation.

        On September 30, 2011, the Board entered an order giving petitioner six-months of active
military service credit for his service in 1963, and the opportunity to establish additional periods
of active military service pursuant to Title 10 of the United States Code. However, the Board
found that petitioner’s National Guard service, performed pursuant to Title 32 of the United State
Code, did not constitute active military service entitled to retirement credit. Petitioner appealed
the Board’s September 30, 2011, decision to the circuit court, which reversed the Board and
found that petitioner’s National Guard service, performed pursuant to Title 32, did constitute
active military service for purposes of calculating retirement benefits. The circuit court remanded
the case to the Board with instructions to determine which of petitioner’s additional periods of
active military service were entitled to credit. The Board did not appeal the circuit court’s order.

        By letter dated February 18, 2013, the Board credited petitioner with twelve additional
months of Title 32 active military service. In the letter, the Board noted that the active military
service credit rules are spelled out in West Virginia Code § 5-10-14 and West Virginia Code of
State Rules § 162-5-4, and require that a member be in service for one-half or more of a calendar
month in order to receive PERS credit for that particular calendar month. The Board further
concluded that to serve “one-half or more of a calendar month,” petitioner would have to have
served fifteen days or more of active military service to receive one month of active military
service credit (the “fifteen-day standard”).

        Petitioner promptly protested the Board’s use of the fifteen-day standard by citing to
West Virginia Code § 5-10-14(a)(l), which provides that “[i]n no event may less than ten days of
service rendered by a member in any calendar month be credited as a month of service” (the
“ten-day standard”). Petitioner also argued that the fifteen-day standard was inconsistent with
West Virginia Code § 5-10-15(a)(1), which mandates that military members receive credited
service “for any time served in active duty in the armed forces of the United States”; and West
Virginia Code § 5-10-15(a)(2), which provides that military members “shall receive credited
service for the time spent in the Armed Forces of the United States, not to exceed five years.”

        By letter dated April 15, 2013, the Board acknowledged the ten-day standard found in
West Virginia Code § 5-10-14(a)(l), but affirmed its application of a fifteen-day standard on the
ground that the ten-day standard “simply sets the minimum amount of service the Board can
require before crediting a month of service.” The Board further found that it “requires more than
ten (10) days of service for a PERS member to receive credit for a particular calendar month
when the ten (10) days does not constitute half of a calendar month.”




2005, c. 201. West Virginia Code § 5-10-15 was amended in 2015; however, the amendment of
that section does not affect the outcome of this case. See Acts of the Legislature, 2015, c. 204.


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       On September 11, 2013, the hearing examiner stayed the case pending a decision in West
Virginia Consolidated Public Retirement Board v. Wood, 233 W.Va. 222, 757 S.E.2d 752
(2014). This Court issued Wood on March 28, 2014. In Syllabus Point 9 of that case, the Court
found that

       [t]he phrase “period of armed conflict” as utilized in West Virginia Code § 5-10­
       15(b)(1) (2013), is not limited to the military engagements specifically identified
       in the statute but also includes other periods of armed conflict in which the United
       States has engaged, as the credible evidence presented in each individual case
       may dictate.

By letter dated May 30, 2014, the Board notified petitioner that, under Wood, he was entitled to
one additional month of active military service credit, for a total of nineteen months of service
credit.

       Thereafter, in a July 22, 2014, recommended decision, the hearing examiner found that
the Board’s fifteen-day standard was clearly erroneous, and that the ten-day standard should have
been used to calculate petitioner’s active military service credit. On August 13, 2014, the Board
adopted the hearing examiner’s recommended decision. Applying the ten-day standard, the
Board awarded petitioner an additional nine months of active military service credit, for a total of
twenty-eight months of service credit.

        Petitioner appealed the Board’s decision to the circuit court. However, on October 19,
2015, before the circuit court ruled on petitioner’s appeal, the Board awarded petitioner an
additional eight months of active military service credit, bringing his total to thirty-six months of
service credit. On appeal, petitioner challenged the Board’s method of calculating active military
service credit. Petitioner also sought an award of attorney’s fees for those fees he had incurred in
compelling the Board to award him service credit.

        By order entered September 16, 2016, the circuit court affirmed the Board’s calculation
of petitioner’s active military service credit. Among its many findings, the circuit court found
that,

       Petitioner asserted that he should receive military service credit for each calendar
       month in which he had ten or more days of inactive and/or active duty military
       service, claiming that pursuant to W. Va. Code § 5-10-14(a)(l), a calendar month
       must be credited if an individual has 10 or more days of service in the month.

With regard to petitioner’s request for attorney’s fees, the circuit court did not rule on that
request, and instead, encouraged the parties to attempt to resolve that issue on their own, as
follows:

               Petitioner bases his claim [for attorney’s fees] on authority applicable to
       mandamus actions. Petitioner brought his challenge to the Board’s decision as an
       administrative appeal, not a mandamus action; therefore, this authority is
       inapplicable. Petitioner cites no authority for the award of attorneys’ fees in the

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       context of an administrative appeal pursuant to the State Administrative
       Procedures Act, W.Va. Code § 29A-5-4. Although [p]etitioner has not prevailed
       in the instant appeal, the Court notes that [p]etitioner did prevail in his first
       appeal, and the Court does not recall if attorney fees were requested then, or
       whether the parties resolved the issue without court intervention. Thus, the
       [c]ourt will hold a ruling on the same in abeyance and directs the parties to meet
       and confer and attempt to resolve this issue. If the fee issue is not resolved, the
       parties may request court intervention.

(Emphasis added.)

        Petitioner now appeals the circuit court’s September 16, 2016, order. “‘On appeal of an
administrative order from a circuit court, this Court is bound by the statutory standards contained
in W.Va. Code § 29A–5–4 and reviews questions of law presented de novo; findings of fact by
the administrative officer are accorded deference unless the reviewing court believes the findings
to be clearly wrong.’ Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).” Syl.
Pt. 1, Myers v. W. Virginia Consol. Pub. Ret. Bd., 226 W.Va. 738, 704 S.E.2d 738 (2010).
Moreover, “[w]here the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Jones v. W. Virginia
Pub. Employees Ret. Sys., 235 W.Va. 602, 775 S.E.2d 483, 487 (2015).

        Petitioner raises two assignments of error on appeal. Petitioner first argues that the Board
erred in using the ten-day standard to calculate his active military service credit. Petitioner
claims he never asked the Board or the circuit court to calculate his active military service credit
using the ten-day standard. Petitioner also claims that both the ten-day and the fifteen day
standard violate West Virginia Code § 5-10-15(a)(1), because they fail to provide military
members with credited service “for any time served in active duty in the armed forces of the
United States.” Petitioner maintains he will receive all service credit due for “any time served”
only if his active military service is calculated on an hourly basis.

        The record on appeal establishes that when petitioner retired, no applicable PERS statute
or regulation mandated a method for calculating active military service credit. Moreover, the
parties agree that neither West Virginia Code § 5-10-15 nor West Virginia Code of State Rules §
162-5-20 (2011) specify how active military service credit should be calculated; therefore, the
method chosen by the Board cannot be contrary to law. Further, the Board’s method “is entitled
to great weight, and will not be disregarded or overthrown unless it is clear that such
construction is erroneous.” Syl. Pt. 3, W.Va. Consol. Pub. Ret. Bd. v. Wood, 233 W.Va. 222, 757
S.E.2d 752 (2014) (quoting Syl. Pt. 7, Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453
(1975)). In addition, West Virginia Code § 5-10-15(a)(6) provides that, “In any case of doubt as
to the period of service to be credited a member under the provisions of this section, the [Board
has] final power to determine the period.”

         In the order on appeal, the circuit court found that the Board’s use of the ten-day standard
in this case was “a reasonable adaptation of the law expressly applicable to other circumstances”
in the absence of an express rule for active military service credit, and that this “reasonable

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adaptation” was entitled to deference. Accordingly, the circuit court concluded that the Board’s
use of the ten-day standard to calculate petitioner’s active military service credit did not violate
W.Va. Code § 5-10-15. We agree and find that the circuit court did not err in affirming the
Board’s calculation of petitioner’s active military service credit under the ten-day standard.
        Petitioner’s second argument is that the circuit court erred in failing to rule on his motion
for attorney’s fees. Under West Virginia Code, § 58-5-1 (1925), only final decisions of a circuit
court are appealable. A final decision is one that “terminates the litigation between the parties on
the merits of the case and leaves nothing to be done but to enforce by execution what has been
determined.” Syl. Pt. 3, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).
Hence, because the circuit court had not finally decided the attorney fee question, we remand
that question to the circuit court.

       For the foregoing reasons, we affirm the circuit court’s September 16, 2016, order as it
regards the Board’s method in calculating petitioner’s active military service credit. However,
we remand the case to the circuit court for prompt resolution of petitioner’s request for attorney’s
fees.

                                                                                          Affirmed.

ISSUED: November 17, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker


DISSENTING:

Justice Robin Jean Davis




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