MILITARY LEAVE

A question came in about military leave, and we thought it would be a good subject for a blog post.

In a prior post, we discussed who is eligible for military leave points. You can read more here: who-is-eligible-for-military-leave-points.html We encourage you to read this prior post carefully, but the takeaway is that our interpretation is that only participants are eligible for military leave points. This is an important distinction. 

It is useful to now provide the text of the applicable section of the statute:

​(i)  A participant whose volunteer fire service is interrupted by full-time extended obligatory military service or by a single voluntary enlistment not to exceed four years in the armed forces of the United States shall be considered on military leave. During such period of military leave, the participant shall receive active volunteer service credit of fifty points for each full year, prorated for service of less than a year.

If we try and break this down, we have two possible scenarios where a participant will be considered to be on military leave:

1. full-time extended obligatory military service;
2. single voluntary enlistment not to exceed four years in he armed forces of the United States.

Before we attempt to define these two scenarios, it is important to note that we are not attorneys, and you are strongly encouraged to check with your local attorney on this matter. We cannot give legal advice, and the information in this post should be reviewed with your attorney.

Using the web site made available by the NYS legislature, a search for the term “obligatory military service” results in only the LOSAP statutes (for both fire departments and ambulance squads), which means this term doesn’t exist in other sections of statute. We could not uncover any other clues to how “obligatory military service” should be interpreted in other sections of NYS law. With this guidance lacking, it is generally agreed that obligatory military service means a situation where an individual is involuntarily kept beyond his/her initial term of service. This is sometimes referred to as a “stop-loss policy”. Another situation could be the draft, if it was ever re-instituted. Knowing that these two situations are rare, it is unlikely that a sponsor or fire department will run across it.

The second of these two scenarios is a bit easier – it contemplates a more traditional situation where someone enlists for a period not to exceed four years. So if one of your volunteers enlists in the military for a four-year period, he/she is considered on military leave and should receive 50 points for each complete  year. We’ll deal with the pro-ration part later.

That seems easy enough, but what about situations like:

1. An enlistment that is for more than four years?
2. Reservists?
3. A career military person who also happens to be a volunteer firefighter?

These scenarios are contemplated in the statute, in particular #2 and #3.

The generally accepted procedure when it comes to military leave is that a volunteer cannot receive more than four (4) years of service credit as a result of military service. There could be many exceptions to this general rule. One would be if someone was put on military leave on July 1, 2019 and earned 25 points before leaving. Therefore this person would have 50 points for 2019, and one year of service credit. Then the individual remains on military leave in 2020, 2021 and 2022, for three more years and a total of four (4) years of service credit. However, the individual returns from the military on June 30, 2023, immediately goes back to active service with the fire department, earning 25 points during the 2nd half of 2023. Therefore, this individual could end up with five (5) years of service credit due to points awarded for military leave, but only really have been on military leave for four (4) years.

The situation with a reservist is more difficult to manage. Some have taken the approach that a volunteer cannot be awarded with more than 200 military leave points in a career (50 x 4). But tracking that creates some challenges. In general, it seems more reasonable to stick with the generally accepted procedure of not allowing a participant to be granted more than 4 years of service credit as a result of military leave. This means that in the example just given, the individual would only be granted four (4) years and not five (5).  

Someone who is in the military for a career and is also a volunteer is another difficult situation to manage. Although it isn’t as common, there are several military bases here in New York, and career military personnel could volunteer during his/her off-duty time. There is no clear answer on what to do in this situation, but the statute doesn’t seem to apply to this scenario, which would lead me to believe that military leave points should not be awarded in this situation.

The last thing to consider is how to pro-rate for periods of less than a year. There is no one correct way to pro-rate, though it is preferred that one method is selected for the plan and used consistently. Since there is no prescribed method, it seems reasonable to use a daily rate of about 0.1369863 points per day. Therefore, if someone is on military leave for 3 months of a year, and those three months make up 92 days, then the person would receive 12 points. [Note – a firefighter cannot earn a fraction of a point so we don’t have to be concerned about the fractional period.] 

This also would help with someone who is in the reserves and might be gone for, say, two weeks. This would allow the participant to be credited with one (1) point (again, fractions of a point not awarded) for this time. 

But if we stick to the generally accepted practice of capping military leave service credit at 4 years, consider this scenario – say a volunteer was a reservist and was on military leave for 4 weeks, thus being eligible for 3 points. If that volunteer earned 48 points on his own during the year, the 3 military leave points pushes that person over the 50-point threshold. That then would be considered 1 of the 4 eligible military leave service credit years.

Last, many LOSAP plan documents might stipulate that the volunteer must return as an active volunteer firefighter after the expiration of the military leave in order to be credited with those military-leave points and service credit. This is based on the idea that the term “interrupted” in the statute implies that there is a continuation of volunteer service after military leave expires. I’m not convinced that the word “interrupted” implies that, but many plan documents stipulate that a volunteer must return, and sometimes earn an additional year of service credit, before military leave points are actually awarded. 

As you can see, managing firefighters on military leave can be tricky. Here are the important takeaways:

1. Review with your local attorney.
2. Only participants are eligible for military leave.
3. In general, service credit for military leave is limited to four (4) years.
4. There is no right or wrong answer for pro-ration, but it is most reasonable to pro-rate by days on military leave.
5. Whatever pro-ration method is selected, document it so it is consistently used in the future.
6. Check your plan document to see if there is a “return rule”.
7. Consult with your attorney. (can’t repeat that enough!)