                 IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                       January 2014 Term               FILED
                                                                   March 28, 2014
                                          ___________
                                                                     released at 3:00 p.m.
                                                                     RORY L. PERRY II, CLERK
                                          No. 13-0403              SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA
                                          ___________

                           WEST VIRGINIA CONSOLIDATED PUBLIC

                                   RETIREMENT BOARD,

                                 Respondent Below, Petitioner


                                                v.


                KEITH A. WOOD, WILLIAM E. WALKUP, TED M. CHEATHAM,

                 HERBERT E. LATTIMORE, JR., and JOHNNY L. R. FERNATT,

                              Petitioners Below, Respondents


                    _________________________________________________

                         Appeal from the Circuit Court of Kanawha County

                              The Honorable Paul Zakaib, Jr., Judge

                                   Civil Action No. 11-AA-143


                                        AFFIRMED

                   ____________________________________________________

                                   Submitted: February 12, 2014
                                      Filed: March 28, 2014


       Lenna R. Chambers, Esq.                             Lonnie C. Simmons, Esq.
       Bowles Rice LLP                                     Elizabeth G. Kavitz, Esq.
       Charleston, West Virginia                           DiTrapano, Barrett, DePiero
       Attorney for Petitioner                             McGinley & Simmons, PLLC
                                                           Charleston, West Virginia
                                                           Attorney for Respondents


       JUSTICE WORKMAN delivered the Opinion of the Court.

2 9

                              SYLLABUS BY THE COURT




              1. “Where 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).



              2. “Interpreting a statute or an administrative rule or regulation presents a

purely legal question subject to de novo review.” Syl. Pt 1, Appalachian Power Co. v. State

Tax Dep’t of W. Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).



              3. “‘Where a statute is of doubtful meaning, the contemporaneous construction

placed thereon by the officers of government charged with its execution is entitled to great

weight, and will not be disregarded or overthrown unless it is clear that such construction is

erroneous.’ Syllabus Point 7, Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453 (1975).”

Syl. Pt. 4, Hawkins v. W. Va. Dep’t of Pub. Safety, 223 W.Va. 253, 254, 672 S.E.2d 389, 390

(2008).



              4. “‘“Interpretations of statutes by bodies charged with their administration are

given great weight unless clearly erroneous.” Syl. pt. 4, Security National Bank & Trust

Company v. First W.Va. Bancorp, Inc., 166 W.Va. 775, 277 S.E.2d 613 (1981).’ Syllabus

                                              i
point 3, Smith v. Board of Education of County of Logan, 176 W.Va. 65, 341 S.E.2d 685

(1985).” Syl. Pt. 7, Lincoln Cnty. Bd. of Educ. v. Adkins, 188 W.Va. 430, 424 S.E.2d 775

(1992).



              5. “A statute that is ambiguous must be construed before it can be applied.”

Syl. Pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).



              6. “The primary object in construing a statute is to ascertain and give effect

to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159

W.Va. 108, 219 S.E.2d 361 (1975).



              7. “Judicial interpretation of a statute is warranted only if the statute is

ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative

intent.” Syl. Pt. 1, Ohio Cnty. Comm’n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983).



              8. “‘In ascertaining legislative intent, effect must be given to each part of the

statute and to the statute as a whole so as to accomplish the general purpose of the

legislation.’ Syl. Pt. 2, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va.

108, 219 S.E.2d 361 (1975).” Syl. Pt. 3, State ex rel. Fetters v. Holt, 173 W.Va. 501, 318

S.E.2d 446 (1984).


                                              ii
              9. The 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.




                                             iii
Workman, Justice:



              This is an appeal by the West Virginia Consolidated Public Retirement Board

(hereinafter “the Board”) from a March 20, 2013, order of the Circuit Court of Kanawha

County. The Board contends that the circuit court erred in reversing the Board’s finding that

five employees of the State of West Virginia covered by the Public Employees Retirement

System (hereinafter “PERS”) were not entitled to certain military service credit available

through West Virginia Code § 5-10-15 (2013), despite their active service during several

recognized periods of armed conflict and their honorable discharge from the United States

military. In the consolidated administrative appeals, the circuit court held that the five

employees were entitled to the military service credit they sought. The Board now appeals

to this Court. Upon thorough review of the appendix record, the arguments of counsel,

statutory requirements, and applicable precedent, this Court affirms the decision of the circuit

court.



                              I. Factual and Procedural History

                                A. The Respondent Veterans

              The respondents in this case are five individuals (hereinafter “Respondents”)

who served in various capacities in the United States military, subsequently entered public

service with the State of West Virginia, and ultimately sought military service credit through


                                               1

PERS. Respondent Keith Wood served on active duty with the United States Army from

January 7, 1978, through September 29, 1992. While he served in the Army, Respondent

Wood had some involvement in the events in Nicaragua, El Salvador, Honduras, Saudi

Arabia, Kuwait, Lebanon, Yugoslavia, Iraq, and Iran. In 1992, Respondent Wood accepted

employment with the State of West Virginia, and he contends that he was informed that he

would receive five years of military service credit in PERS upon his employment.1



              Although his PERS annual statements reflected five years of military service

credit, when Respondent Wood inquired about retirement credit in 2011, he was informed

by the Board that his military service credit had been calculated incorrectly, and that he was

entitled to only eight months of military service credit. In applying for the credit, Respondent

Wood relied upon his actual military service and an alternate estoppel argument, based upon

the letters he received indicating that he was entitled to military credit and his reliance upon

the statements made to him at the time of his initial employment with the State.2 The Board

awarded Respondent Wood only eight months of military service credit, based upon his



       1
       Respondent Wood testified he was approached by former Administration Secretary
Chuck Polan and former Governor Gaston Caperton regarding the position of Aviation
Services Manager within the Aviation Division of the State of West Virginia. Respondent
Wood further testified that upon his expression of reluctance to leave the military, Secretary
Polan specifically told him that he would receive five years of military service credit.
       2
        Respondent Wood is the only veteran in this consolidated appeal who presented an
estoppel argument in addition to his argument that his actual service record warranted the full
five years of military service credit.

                                               2

service during the Persian Gulf War, August 2, 1990, through April 11, 1991. Upon appeal

to the circuit court, Respondent Wood was awarded the full five years of military service

credit based upon his military service record.



              Respondent William E. Walkup served on active duty as a United States

Marine from May 5, 1983, to May 4, 1987, and joined PERS in 1989 as a State employee.

He was first employed by the State as an Interim Manager and Maintenance Director of

Eastern West Virginia Regional Airport and later promoted to the position of Manager and

Director of the Eastern West Virginia Regional Airport. While serving in the Marine Corps,

Respondent Walkup had some involvement in the events in Lebanon, Grenada, and El

Dorado Canyon. Respondent Walkup did not receive any military service credit at the Board

level, but he was awarded four years of military service credit by the circuit court, based

upon his service record.



              Respondent Herbert E. Lattimore, Jr., served on active duty in the United States

Army from May 4, 1975, through February 28, 2001, and became a member of PERS in

2002, as an employee of West Virginia’s Division of Homeland Security and Emergency

Management. While Respondent Lattimore served in the Army, the United States was

involved in conflict events in the Persian Gulf, Vietnam, Mayaguez, Beirut, Panama,

Grenada, Nicaragua, Libya, and Kosovo. The Board informed Respondent Lattimore that


                                              3

he was eligible for eight months of military service credit in PERS for his active duty service

from August 2, 1990, to April 11, 1991. On appeal to circuit court, he was awarded five

years of military service credit, based upon his service record.



              Respondent Teddy M. Cheatham served on active duty in the United States

Army from May 29, 1977, to October 15, 1988, and became a member of PERS in 2006, as

an employee of the State of West Virginia’s Public Employees Insurance Agency. While

Respondent Cheatham served in the Army, the United States was involved in conflict events

in Nicaragua, Somalia, Lebanon, Granada, and Panama.               The Board concluded that

Respondent Cheatham was not entitled to any military service credit in PERS. The circuit

court reversed that decision and held that Respondent Cheatham was entitled to receive the

full five years of military service credit based upon his service record.



              Respondent Johnny L. R. Fernatt served on active duty in the United States

Navy from July 18, 1980, to February 16, 1990, became a member of PERS in 1998, and was

most recently employed as a State Information Systems Manager. While he served in the

Navy, the United States was involved in conflict events in Granada, Kosovo, Somalia, and

Libya. The Board found the Respondent Fernatt was not eligible for military service credit

in PERS. The circuit court reversed that decision and held that Respondent Fernatt was

entitled to receive the full five years of military service credit based upon his service record.


                                               4

                             B. West Virginia Code § 5-10-15

              When West Virginia Code § 5-10-15 was originally enacted in 1961, State

employees participating in PERS were entitled to receive military service credit only if they

actively served in the military during a time of compulsory service.3 In 2000, the West

Virginia Legislature enacted a revised PERS provision, West Virginia Code § 5-10-15b,4

granting up to five years of military service credit to PERS members who served on active

duty during a “period of armed conflict.” See W.Va. Code § 5-10-15(a)(2). The statute

provides that “for purposes of this section” the term “period of armed conflict” is defined as:

              the Spanish-American War, the Mexican border period, World
              War I, World War II, the Korean conflict, the Vietnam era, the
              Persian Gulf War and any other period of armed conflict by the
              United States, including, but not limited to, those periods
              sanctioned by a declaration of war by the United States
              Congress or by executive or other order of the President.

Id. § 5-10-15(b)(1). The statute thereafter sets forth specific beginning and ending dates5 for

each of the named “period[s] of armed conflict,” and provides that credit may be awarded



       3
       Compulsory service in the military, otherwise known as “the draft,” ended on July
1, 1973.
       4
       Initially enacted as West Virginia Code § 5-10-15b, this provision was eventually
merged into West Virginia Code § 5-10-15. For purposes of the issues raised in this appeal,
the guiding statute remains in effect without substantive change. This Court will
consequently refer to West Virginia Code § 5-10-15 in this opinion.
       5
       The Spanish-American War is identified as 1898 to 1903; Mexican border period
from 1916 to 1917; World War I from 1917 to 1918; World War II from 1941 to 1946;
Korean conflict from 1950 to 1955; Vietnam era from 1961 to 1975; and Persian Gulf War
from 1990 to 1991. See W. Va. Code § 5-10-15(b)(2)-(8).

                                              5

for service beyond the end date of an officially recognized conflict if the PERS member was

stationed in a hostile territory. See id. § 5-10-15(b)(2)-(8).



              Upon the inclusion of the “period of armed conflict” language in 2000, the

Board began awarding military service credit for service during the specific “period[s] of

armed conflict” listed in the statute. In October 2001, the Board determined that military

service credit under this statutory provision would also be awarded for all active duty service

occurring after September 11, 2001.



                        C. Decisions of the Board and Circuit Court

              The Board denied the respondents’ requests for military service credit for

service occurring during periods of armed conflict other than those listed in the statute and

post-September 11, 2001, service, and each respondent appealed the Board’s orders to the

circuit court. Those appeals were consolidated into a single civil action. On March 20, 2013,

the circuit court ruled in favor of the respondents and granted each of their military service

credit requests in full. All respondents, except Respondent Walkup, received the full five

years of military service credit made available through the statute, and Respondent Walkup

received four years of military service credit since he served only four years in the military.

The Board appeals that decision to this Court.




                                               6

                                   II. Standard of Review

              In syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459

S.E.2d 415 (1995), this Court held: “Where 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.” Accord, Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va.,

195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative rule or

regulation presents a purely legal question subject to de novo review.”).



              Because resolution of this matter depends upon a determination of the meaning

and proper application of a statutory pronouncement, this Court reviews the circuit court’s

decision de novo.



                                       III. Discussion

                               A. Periods of Armed Conflict

              In its primary and dispositive assignment of error, the Board contends that the

circuit court erred in concluding that the respondents are statutorily entitled to the military

service credit designated in the circuit court order. West Virginia Code § 5-10-15, as

outlined above, provides that military service credit of up to five years shall be granted to a

member of PERS who served in active duty in the armed forces of the United States during

a “period of armed conflict” and was honorably discharged. The phrase “period of armed


                                              7

conflict” as defined in West Virginia Code § 5-10-15(b)(1), encompasses certain identified

military engagements “and any other period of armed conflict by the United States,

including, but not limited to, those periods sanctioned by a declaration of war by the United

States Congress or by executive or other order of the President.”               W.Va. Code §

5-10-15(b)(1) (emphasis supplied).



              The respondents argued in circuit court and contend on appeal that the

Legislature clearly did not intend military service credit to be limited to the specific armed

conflicts identified in the statute. The respondents emphasize that the express language of

the statute does not limit the military actions to those involving an actual declaration of war

by the President or Congress. The respondents also direct this Court’s attention to the

Legislature’s inclusion of a provision requiring liberal construction of the statute, as follows:

“The provisions of this article shall be liberally construed so as to provide a general

retirement system for the employees of the state herein made eligible for such retirement. .

. .” W.Va. Code § 5-10-3a(a) (2013). The respondents maintain that liberal construction

requires the conclusion that unless the statute clearly excludes a particular military campaign

from being considered, all periods of armed conflict must be included in the calculation of

an employee’s military service credit.




                                               8

               In identifying the specific periods of armed conflict in which the United States

has engaged, the respondents presented evidence in the administrative hearings in the form

of Veterans of Foreign Wars (hereinafter “VFW”) listings in the VFW Guide for Post Service

Officers Veterans Benefits. Those listings include the following military engagements:

El Salvador                   January 1, 1981, through February 1, 1992
Lebanon                       June 1, 1983, through December 1, 1987
Grenada                       October 23, 1983, through November 21, 1983
Persian Gulf                  July 24, 1987, through August 1, 1990
Panama                        December 20, 1989, through January 31, 1990
Somalia                       December 5, 1992, through March 31, 1995



               The circuit court agreed with the respondents’ contentions and found that

liberal construction of West Virginia Code § 5-10-15 compelled the conclusion that the

Board must provide military service credit for the periods of armed conflict specifically

identified in the statute, the post-September 11, 2001, period, and the other periods of armed

conflict, as indicated in the VFW manual. The circuit court reasoned: “The Legislature

explicitly never intended the military service credit awarded under the statute to be limited

to the specific armed conflicts listed.”6 The circuit court found that the military actions listed

in the VFW manual were similar in nature to and consistent with the periods of armed


       6
         The circuit court observed the absence of clarity in the statute, noting that “[t]here
is nothing in the statute, for example, to suggest either that a period of armed conflict
necessarily must involve deaths in the field of battle or the firing of a single shot.” The
circuit court further stated that “[t]he statute also is silent on what evidence is required for
a public employee to prove that he or she had actively served in the military during a period
of armed conflict.”

                                                9

conflict specifically identified in the statute.7 It further stated that “[f]or reasons not made

clear either in its regulations or prior rulings, [the Board] has chosen not to provide military

service credit for all periods of armed conflict.” (Emphasis in original). Moreover, the

circuit court recognized that “as indicated by this case, [the Board] has chosen to provide

military service credit for some military campaigns, but not for others. The rationale for

making these distinctions is not apparent in [the Board’s] regulations or web site and was not

explained during the hearing.”



              On appeal, the Board contends that it has properly interpreted the statute to

require military service credit for only those military engagements listed in the statute and

post-September 11, 2001, service.8 Based upon that reasoning, the Board denies military

service credit requests premised upon military service performed during other time periods.


       7
        The Board cites the concept of ejusdem generis for the proposition that only military
actions of similar nature should be included in the calculation of military service credits.
That is a “canon of construction that when a general word or phrase follows a list of specific
persons or things, the general word or phrase will be interpreted to include only persons or
things of the same type as those listed.” Black’s Law Dictionary 535 (7th ed. 1999).

        Evidence presented during the administrative hearings included the fact that potential
utilization of other military actions in the military service calculation had been considered
by the Board or a committee. Yet, as the circuit court observed, “at no point has [the Board]
ever articulated in writing any explanation as to why these periods of armed conflict are not
being recognized by [the Board] for purposes of calculating military service credits.”
       8
        All parties agree that post-September 11, 2001, military service should be included
in the calculation of military service credit, and the inclusion of that time period is not at
issue in this case.

                                              10

The Board argues on appeal that it should be required to award military service credit only

for service during those periods of armed conflict, occurring after the enactment of this

statute, which are similar in scope and nature to the periods listed in the statute. The Board

contends that its approach is consistent with the intent of the Legislature and emphasizes that

the Legislature did not specifically name any military engagements between 1975 and 1990,

despite the fact that it would have been aware of certain intervening military engagements

when it enacted this legislation in 2000.



              With regard to its rationale, the Board contends that the circuit court should

have accorded more weight to the Board’s own interpretation of the requirements of the

statutory provision at issue. See SyI. Pt. 4, Hawkins v. W. Va. Dep’t of Pub. Safety, 223

W.Va. 253, 254, 672 S.E.2d 389, 390 (2008) (“‘Where a statute is of doubtful meaning, the

contemporaneous construction placed thereon by the officers of government charged with

its execution is entitled to great weight, and will not be disregarded or overthrown unless it

is clear that such construction is erroneous.’ Syllabus Point 7, Evans v. Hutchinson, 158

W.Va. 359, 214 S.E.2d 453 (1975).”). Similarly, the Board emphasized that West Virginia

Code § 5-10-15(b)(6) requires doubt to be resolved in favor of the Board’s interpretation:

“In any case of doubt as to the period of service to be credited a member under the provisions

of this section, the board of trustees have final power to determine the period.”




                                              11

              While this Court agrees with the proposition that the Board’s interpretation is

entitled to deference, it is imperative that a reviewing court also consider the possibility, as

the circuit court did in the present case, that the Board’s interpretation is erroneous. As we

noted in syllabus point seven of Lincoln County Board of Education v. Adkins, 188 W.Va.

430, 424 S.E.2d 775 (1992): “‘“Interpretations of statutes by bodies charged with their

administration are given great weight unless clearly erroneous.” Syl. pt. 4, Security National

Bank & Trust Company v. First W.Va. Bancorp, Inc., 166 W.Va. 775, 277 S.E.2d 613

(1981).’ Syllabus point 3, Smith v. Board of Education of County of Logan, 176 W.Va. 65,

341 S.E.2d 685 (1985).” Additionally, as the circuit court in this case recognized, while

West Virginia Code § 5-10-15(b)(6) does provide the Board with authority to determine

military service credit in the case of doubt, the Board “necessarily would have to make such

determination consistent with the broad definition of ‘period of armed conflict’ mandated

by the Legislature and with the liberal construction of this statute required by W.Va. Code

§ 5-10-3a.” (Emphasis in original).9


       9
        “[D]eference is not abdication, and it requires us to accept only those agency
interpretations that are reasonable in light of the principles of construction courts normally
employ.” EEOC v. Arabian American Oil Co., 499 U.S. 244, 260 (1991) (Scalia, J.,
concurring). Regarding deference to be accorded to agency interpretations, courts have also
been astute in observing that deference cannot be provided unless there is a tangible agency
construction to which a court may defer. As the United States Supreme Court explained in
United States v. Mead Corp., 533 U.S. 218 (2001), deference in the federal realm is only
accorded where “Congress delegated authority to the agency generally to make rules carrying
the force of law, and . . . the agency interpretation claiming deference was promulgated in
the exercise of that authority.” Id. at 218, 226-27. “Interpretations such as those in opinion
letters—like interpretations contained in policy statements, agency manuals, and enforcement

                                              12

               In this Court’s determination of the appropriate resolution of this matter, we

recognize that the crucial element of controversy is the matter of statutory construction. As

summarized above, the Board contends that it properly interpreted and applied the statute.

The respondents maintain that the Board’s interpretation is unnecessarily restrictive and that

the circuit court’s rationale and resulting conclusions were correct. Consequently, the issue

presented in this appeal requires this Court to ascertain the meaning of the subject statutory

language and its proper application to the respondents’ requests for military service credit.

Although this Court has consistently observed that clear and unambiguous statutes shall not

be subject to interpretation,10 we have also definitively stated that “[a] statute that is

ambiguous must be construed before it can be applied.” Syl. Pt. 1, Farley v. Buckalew, 186



guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”
Chistensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (referencing Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). When the agency’s position has been
articulated as a litigation position, as in the present case, this Court has declined to accord
deference to the agency’s interpretation. See West Virginia Health Care Cost Review
Authority v. Boone Memorial Hosp., 196 W.Va. 326, 334, 472 S.E.2d 411, 419 (1996)
(observing that “courts customarily withhold Chevron deference from agencies litigating
positions . . . . We see no reason to take a different tack in this instance.”); In re Snuffer, 193
W.Va. 412, 417, 456 S.E.2d 493, 498 (1995) (Cleckley, J., concurring) (“The policy
underlying our grant of special deference to agency decisions and similar official agency
pronouncements does not extend to every agency action. For example, it would not extend
to ad hoc representations on behalf of an agency, such as litigation arguments.”).
       10
         See Syl. Pt. 3, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Protection, 191
W.Va. 134, 443 S.E.2d 602 (1994) (“Where the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.”).

                                                13

W.Va. 693, 414 S.E.2d 454 (1992).          “Ambiguity is a term connoting doubtfulness,

doubleness of meaning of indistinctness or uncertainty of an expression used in a written

instrument.” Crockett v. Andrews, 153 W.Va. 714, 718-19, 172 S.E.2d 384, 387 (1970).



              In defining “period of armed conflict” in West Virginia Code § 5-10-15 (b)(1),

the statute first identifies certain specific periods to be included. Immediately thereafter,

however, the statute also provides that other periods to be utilized in calculation of military

service credit include “any other periods of armed conflict by the United States, including,

but not limited to, those periods sanctioned by a declaration of war by the United States

Congress or by executive or other order of the President.” Id.



              This Court’s reading of the statute compels the conclusion that it is ambiguous

with regard to the meaning of the phrase “periods of armed conflict.” The inclusion of such

broad and unspecific language renders this statute capable of varying interpretations, as

illustrated, in part, by the vehement disagreement among the parties to this action. A statute

which is susceptible of two or more meanings is characterized as ambiguous. See Vanderbilt

Mortg. & Fin., Inc. v. Cole, 230 W.Va. 505, 510, 740 S.E.2d 562, 567 (2013) (“‘A statute

is open to construction only where the language used requires interpretation because of

ambiguity which renders it susceptible of two or more constructions or of such doubtful or

obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.’”)


                                              14

(quoting Hereford v. Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949)); Sizemore v.

State Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (allowing

judicial construction where “language used requires interpretation because of ambiguity

which renders it susceptible of two or more constructions” and the provision is “of such

doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its

meaning.”).



               Having found the subject statutory language ambiguous, this Court is required

to construe the statute and determine its proper application to the facts of this case. In

endeavoring to construe an ambiguous statute, this Court is cognizant that “[t]he primary

object in construing a statute is to ascertain and give effect to the intent of the Legislature.”

Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975);

see also Syl. Pt. 1, Ohio Cnty. Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983)

(“Judicial interpretation of a statute is warranted only if the statute is ambiguous and the

initial step in such interpretative inquiry is to ascertain the legislative intent.”).



               The statute at issue herein distinctly directs that military service credit is

required to be granted to members of PERS who served in the United States military during

particular military engagements. To determine the intent of the Legislature with respect to

precisely which military engagements should be included in the calculation of military


                                                15

service credit, the circuit court correctly examined the express language of the statute, the

statutory requirement of liberal construction, and other documents chronicling periods of

armed conflict in which the United States military has engaged.



               Some evidence of the intent of the Legislature may also be gleaned from the

introductory passage of West Virginia Code § 5-10-15(a)(1), as follows:

                       The Legislature recognizes the men and women of this
               state who have served in the Armed Forces of the United States
               during times of war, conflict and danger. It is the intent of this
               section to confer military service credit upon persons who are
               eligible at any time for public employees retirement benefits for
               any time served in active duty in the Armed Forces of the United
               States when the duty was during any period of compulsory
               military service or during a period of armed conflict, as defined
               in this section.

Moreover, the express language of the statutory definition of “period of armed conflict”

indicates a legislative intent to identify certain military conflicts that must be included in the

military service credit calculation and to include other unidentified periods of armed conflict

in the calculation of military service credit. This language employed by the Legislature is

extremely broad and unrestrictive, necessitating an inquiry into what other periods of armed

conflict should be included in the calculation. An application of the statute including only

the named military conflicts would not confer any meaning to the remainder of the paragraph.

In endeavoring to interpret a statute in a manner which gives meaning to each part, this Court

stated as follows in syllabus point three of State ex rel. Fetters v. Holt, 173 W.Va. 501, 318


                                               16

S.E.2d 446 (1984): “‘In ascertaining legislative intent, effect must be given to each part of

the statute and to the statute as a whole so as to accomplish the general purpose of the

legislation.’ Syl. Pt. 2, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va.

108, 219 S.E.2d 361 (1975).”



              The Board’s contention, on appeal, that a calculation of military service

benefits should include only those military engagements occurring after the statute’s

enactment is suspect. If the Legislature had so intended, it could have employed language

indicating that only subsequent periods of armed conflict could be added to the existing list

or it could have stated that only periods of armed conflict occurring after a certain date could

be added to the existing list. “[C]ourts must presume that a legislature says in a statute what

it means and means in a statute what it says there.” Mangus v. Ashley, 199 W.Va. 651, 658,

487 S.E.2d 309, 316 (1997) (citations omitted). Absent obvious indication of intent to add

only subsequent military engagements, the Board’s argument on appeal is mere speculation,

utterly unsupported by the statutory language. This Court finds the Board’s interpretation

to be in clearly erroneous and severely limited in scope.



              Accordingly, we hold that the 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


                                               17

the United States has engaged, as the credible evidence presented in each individual case may

dictate. The liberal construction to which this statute is entitled compels our conclusion that

any doubt about a particular military engagement’s inclusion within the calculation of

military service credit must be resolved in favor of such inclusion. Applying this holding to

the facts sub judice, we conclude that the circuit court properly interpreted and applied West

Virginia Code § 5-10-15 to include periods of armed conflict not specifically identified in

the statute. The circuit court’s evaluation of the respondents’ military service properly

resulted in the conclusion that Respondents Wood, Cheatham, Lattimore, and Fernatt are

entitled to five years of military service credit and Respondent Walkup is entitled to four

years of military service credit. We affirm the circuit court’s method of calculating the

military service credit to which each respondent is entitled.11


       11
         In addition to the primary assignment of error addressed and resolved above, the
Board also asserts that the circuit court erred in concluding that the Fourteenth Amendment
to the West Virginia Constitution is applicable to the determination of additional periods of
time as “periods of armed conflict.” The Fourteenth Amendment to the West Virginia
Constitution is the “Veterans Bonus Amendment” and provides a mechanism through which
a cash bonus may be paid to veterans of the armed forces who served during conflicts in the
Persian Gulf, Lebanon, Grenada, and Panama. This Court’s review of the circuit court order
reveals that it utilized the Fourteenth Amendment as an example of an additional source of
information in the determination of what military engagements should be included in the
calculation of military service credit. The circuit court examined both the list of military
engagements included in the VFW manual and the list included in the Fourteenth
Amendment to separately calculate entitlement to military service credit. The VFW manual
provided the most comprehensive list of military engagements and thus resulted in the most
credit for the respondents. Consequently, because this Court has affirmed the circuit court’s
reliance upon the VFW manual and the resulting military service credit to the respondents,
we find the circuit court’s reference to the Fourteenth Amendment unnecessary to its ultimate
conclusion and therefore irrelevant in this appeal.

                                              18

                   B. Respondent Wood’s Alternate Theory of Recovery

              The Board also contends that the circuit court erred in addressing Respondent

Wood’s alternate theory of recovery, holding that Respondent Wood would be entitled to

military service credit based on the principles of equitable estoppel. The Board contends that

Respondent Wood failed to demonstrate detrimental reliance on the alleged promises of

military credit and emphasizes that the original promise of credit was based upon a mistaken

impression that Respondent Wood had begun his military service during the draft years.



              Although Respondent Wood presented evidence that he was persuaded to

accept a position with the State due to the promise of five years of military service credit and

was provided with statements showing his entitlement to military credit, this Court affirms

the circuit court’s decision to grant Respondent Wood’s full five years of military service

credit based upon his actual service record. Review of his alternate argument, the merits of

which have been contested by the Board, is unnecessary to this Court’s decision. Such

alternate theory, regardless of its merit, is extraneous and immaterial in light of our

conclusion that the circuit court was correct in granting the military service credit based upon

Respondent Wood’s actual military service record.




                                              19

                   C. Board’s Lack of Articulation of its Interpretation

              The Board also maintains that the circuit court erred by concluding that the

Board had failed to properly articulate its interpretation of West Virginia Code § 5-10-15.

The Board premises this assignment of error upon the circuit court’s observation that the

Board could have enacted a legislative rule explaining the basis for its determinations

regarding the statutory phrase, “period of armed conflict.” This Court finds this assignment

of error meritless. The circuit court, while suggesting that the issues could have been more

efficiently explained and resolved through enactment of a legislative rule, certainly did not

base its conclusions of law or awards of military service credit upon any failure of the Board

to enact such rules. We find no error in the circuit court’s observations on this issue and no

effect upon the ultimate ruling made by the circuit court.



                              D. Prior Inconsistent Decisions

              As its final assignment of error, the Board contends that the circuit court erred

in granting relief to the respondents based on prior Board and circuit court decisions

involving other individuals seeking military service credit. Again, this Court finds no merit

in the Board’s arguments in this regard. While the circuit court evaluated prior military

service credit decisions for purposes of ascertaining the appropriate application of the




                                             20

guiding statute, the circuit court did not rely upon those prior decisions as conclusively

settling the issues or binding the Board to a certain statutory application.12



                                      IV. Conclusion

              Based upon the foregoing, this Court finds that the Circuit Court of Kanawha

County did not err in holding that the respondents are entitled to the military service credit

as awarded in the circuit court’s order of March 20, 2013. That order is consequently

affirmed.



                                                                                    Affirmed

       12
          In a 2009 decision in the Circuit Court of Kanawha County regarding military
service credit eligibility for Mr. Daniel Olthaus, the circuit court granted five years of
military service credit based upon the military campaigns listed in the VFW manual. The
Board contends that it did not appeal that decision because it became moot when it was
determined that Mr. Olthaus lacked the requisite number of years of state service to retire.
In another prior decision, the Board granted military service credit to Mr. Archie Hubbard
in 2008 based on Mr. Hubbard’s military service during the United States’ involvement in
the Grenada military engagement. In addressing that prior decision, the Board essentially
maintains that it should be free to alter its interpretation and application of the statutory
requirements and should not be bound by the decision it made in Mr. Hubbard’s situation.
While those prior cases are illustrative of previous inconsistent interpretations, the circuit
court did not find them binding or dispositive of the present case. Thus, any argument on this
issue is inconsequential at this juncture.

        The Board also expresses a general concern regarding costs of administering the
retirement system if military service credit is permitted for the military engagements
identified in the VFW manual. This Court finds such policy arguments to be more
appropriately addressed to the Legislature. This Court’s obligation is to interpret and apply
the provisions of an ambiguous statute, not to address the financial or public policy
underpinnings of such statutory provisions.

                                              21
