Claimant’s benefits subject to WEP where civil service pension not based wholly on service as member of uniformed service
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Monday, May 4, 2020

Claimant’s benefits subject to WEP where civil service pension not based wholly on service as member of uniformed service

By Payroll and Entitlements Editorial Staff

The windfall elimination provision (WEP) reduces the Social Security benefit received by an individual who works in both covered and noncovered employment so that the worker does not receive the benefits "windfall" that would otherwise result. However, members of the armed forces are not subject to the reduction. Congress created an exception to the WEP for any monthly periodic payment "based wholly on service as a member of a uniformed service." A typical military pension does not reduce a claimant’s Social Security retirement benefits from covered employment under the WEP, even if the claimant earned the military pension through noncovered employment. Here, the claimant worked as a dual status technician and served in the National Guard. The claimant paid Social Security taxes on his National Guard wages, but not on his dual technician pay. The claimant argued that he was eligible for the exception to the WEP. The SSA determined that the claimant’s civil service pension from noncovered employment as a dual status technician triggered the WEP. The court agreed. The claimant’s Social Security retirement benefits were subject to the WEP because his civil service pension from his work as a dual status technician was not based wholly on service as a member of the uniformed service. The claimant’s federal civilian employment as a dual status technician was not wholly as a member of the National Guard because the claimant did not simultaneously act wholly in two distinct capacities. Dual status technicians do not fall within the sweep of the uniformed services exception of the WEP. Therefore, the claimant’s Social Security retirement benefits were subject to WEP reduction. The decision of the district court was affirmed (Steve Kientz v. Commissioner, CA-10, No. 18-3240, April 1, 2020).

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