Exclusion from WEP for military retirees did not apply to National Guard dual status technician
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Wednesday, September 2, 2020

Exclusion from WEP for military retirees did not apply to National Guard 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." The claimant retired from his position as a National Guard dual status technician. Upon his retirement, the claimant was eligible for three types of retirement benefits: a civil service retirement system (CSRS) pension, a military pension, and Social Security retirement benefits. 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 should apply to shield his retirement benefits from reduction under the WEP. Specifically, the claimant contended that he was entitled to the uniformed-services exception because he was required to serve in the National Guard (a uniformed service) for the duration of his employment as a dual status technician. The court concluded that the uniformed services exception is ambiguous as applied to dual status technicians. However, the court reasoned that, because the Commissioner’s interpretation of the uniform ed-services exception was reasonable, it was entitled to deference. The judgment of the district court was affirmed (Linda Jackie Larson v. Saul, CA-9, No. 18-35985, June 21, 2020).

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