Exclusion from WEP for military retirees did not apply to dual status technician
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Wednesday, June 10, 2020

Exclusion from WEP for military retirees did not apply to dual status technician

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, 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 retired from his position as a National Guard dual status technician. He had received military pay for his active and inactive duty service but otherwise received civil pay and participated in the Civil Service Retirement System (CSRS). The Social Security Administration granted the claimant’s application but reduced his retirement benefits under the WEP because of his CSRS pension. The claimant argued that the uniformed-services exception applied to his CSRS pension based on his work as a dual status technician.

Noting a split among the circuits, the district court determined that the uniformed-services exception was inapplicable and the WEP applied to the claimant’s case. The Sixth Circuit agreed, reasoning that the language of the uniformed-services exception specifies that only "a payment based wholly on service as a member of a uniformed service" does not trigger application of the WEP. The claimant’s CSRS pension was not such a payment. Dual status technicians receive a CSRS pension because they are federal civilian employees who are assigned to a civilian position. Although the job requirements of a dual status technician may overlap with those of other National Guard members, the CSRS payment was not exclusively based on employment as a No. 19-1687, May 11, 2020member of a uniformed service. Moreover, the court found that the application of the exception to the claimant’s military pension bolstered the conclusion that the CSRS pension did not qualify for the uniformed-services exception. The decision of the district court was affirmed (David B. Babcock v. Commissioner, CA-6, No. 19-1687, May 11, 2020).

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