34 Tex. Admin. Code § 105.4 - Credited Service Under the Uniformed Services Employment and Reemployment Rights Act

(a) An eligible member may receive credited service for service in the uniformed services in accordance with the Uniformed Services Employment and Reemployment Rights Act (the USERRA) (38 U.S.C. §4301 et seq.). Notwithstanding any provision to the contrary, the rights and benefits of an eligible member under the Texas County and District Retirement System (the System) shall not be less than those rights and benefits provided by the USERRA.

(b) The following words and terms, when used in this section shall have the following meanings unless the context clearly indicates otherwise.

(1) Eligible member--An employee of a participating subdivision who is or would be considered to be employed in a position eligible for membership but who leaves employment with that subdivision to perform service in the uniformed services; whose employer was notified of the obligation or intention of the employee to perform service in the uniformed services; who is released or discharged from such service on or after December 12, 1994 under honorable conditions; whose cumulative period of service in the uniformed services with respect to that participating subdivision does not exceed five years not including periods excluded under 38 U.S.C. §1412(c) ; who applies for reemployment with that participating subdivision within 90 days of release or discharge from the uniformed services, or after recovery from an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services (but such recovery period does not exceed two years); and who is reemployed by the participating subdivision.

(2) Uniformed services--The Armed Forces of the United States of America; the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty; the commissioned corps of the Public Health Service; and any other category of persons designated by the President in time of war or emergency.

(3) Service in the uniformed services--The performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and a period for which an employee is absent from a position of employment for the purpose of an examination to determine the fitness of the employee to perform such duty.

(4) Participating subdivision--A subdivision that is participating in the Texas County and District Retirement System at the time the eligible member leaves employment with the subdivision to perform service in the uniformed services; a subdivision that is not participating in the System at the time the employee leaves employment with the subdivision to perform service in the uniformed services but commences participation during the period of the employee's performance of duty in a uniformed service; or a subdivision participating in the System that is a successor in interest to the participating subdivision from which the eligible member left employment to perform service in the uniformed services.

(c) Certification of Eligibility by Participating Subdivision. An eligible member will be credited with current service in accordance with the USERRA upon certification by the participating subdivision on forms provided by the System:

(1) that the eligible member's reemployment application is timely;

(2) that the eligible member has not exceeded the service limitations set forth in the USERRA;

(3) that the eligible member was not released or discharged from the uniformed service under other than honorable conditions;

(4) of the period in which the eligible member performed service in the uniformed services;

(5) that the eligible member did not receive service credit for the period of uniformed service;

(6) of the estimated compensation that the eligible member would have received from the subdivision but for the period of service in the uniformed services; and

(7) of the eligible member's date of reemployment.

(d) Credited Service and Optional Contributions under the USERRA.

(1) Provided the member has not received credited service for the same month under another provision of Texas Government Code, Title 8, an eligible member shall be credited with one month of current service credit for each month or part of a month in which both of the following occur:

(A) the eligible member performed service in the uniformed services, and

(B) the participating subdivision participated in the System.

(2) On or before the last day of the fifth calendar year following the year in which the eligible member was reemployed, the eligible member may, but is not required to, deposit with the System any or all employee contributions that would have been deposited to the member's individual account for each period during which the member performed service in the uniformed services if the eligible member had been employed with the participating subdivision during the period of uniformed service. Deposits under this provision are considered to be employee contributions made in the calendar year of deposit for purposes of employer matching and are subject to the following rules:

(A) The total deposits may not exceed the amount the eligible member would have been required to contribute had the eligible member remained continuously employed by the participating subdivision throughout the period of service in the uniformed services.

(B) The compensation upon which allowable deposits will be calculated is the estimated compensation that the eligible member would have received from the subdivision but for the period of service in the uniformed services.

(C) For purposes of determining the months of credited service and allowable deposits, months of uniformed service and estimated compensation shall be calculated from the later of the date the eligible member entered uniformed service or the date the participating subdivision commenced participation in the System.

(D) Within the allowable period for making deposits and subject to the maximum total amount of deposits, an eligible member may make deposits at any time and in any amount.

(E) Deposits may be paid directly to the System by the eligible member or by the employer through payroll deduction. Optional deposits made under this section are employee contributions and may not be returned until the member terminates from employment with the participating employer.

(F) Deposits will be allocated prospective interest only, and in the same manner as interest is allocated on member contributions to individual accounts.

(G) An eligible member receiving credited service under this section for a specific month may not receive credited service for the same month under any other provision of the Texas Government Code, Title 8.

Notes

34 Tex. Admin. Code § 105.4

The provisions of this §105.4 adopted to be effective December 31, 1997, 22 TexReg 12539; amended to be effective January 27, 2000, 25 TexReg 390; amended to be effective October 18, 2007, 32 TexReg 7266