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Employment Development Department
Employment Development Department

Total and Partial Unemployment TPU 305

Military Service

A. Claimants in Active Military Service

Section 8521(a) of Title 5 of the U.S. Code defines "federal service" as active service in the armed forces or the Commissioned Corps of the National Oceanic and Atmospheric Administration (NOAA) if with respect to that service, the individual was discharged or released under honorable conditions (and if an officer did not resign for the good of the service) and was discharged or released after completing a full term of active service. If the individual was discharged or released before completing a term of active service, to be eligible, the individual must have been discharged or released for the convenience of the Government under an early release program; because of medical disqualification, pregnancy, parenthood, or service incurred injury or disability; because of hardship; or, if the service was continuous for 365 days or more days, because of personality disorders or inaptitude. Claimants who are currently in active military status are considered to be fully employed, and whether or not they are actually performing services, they are in receipt of wages and are not entitled to file a claim. (For denial of right to file claim, see the Federal Claims Manual, Section 651.1.)

  1. Week Claimed While on Leave

    The claimant may already have a claim on file at the time he/she is inducted into military service. Any week claimed which certifies to a full week during the period of time when the claimant is in active military service will be denied under Code Section 1252, as the claimant is not unemployed.

  2. Week Claimed for Week of Induction

    The week in which the claimant was inducted is a potentially payable week if he or she is otherwise eligible and does not have excess earnings. For purposes of benefit amount reduction under Section 1279, military service wages for other employers.

  3. Unexpired Leave Payment After Separation From the Service

    If a claim is filed after the claimant is separated from the service, compensation for unexpired leave paid after separation is not considered as wages. Section 1253.15 of the Code provides:

    "An unemployed individual who has been discharged from any branch of the United States armed services and who is in all respects otherwise eligible for . . . benefits shall not be deemed ineligible in any week for which he has unexpired leave time for which he has been compensated upon his discharge."

B. Claimants in Inactive or Reserve Status

UI Code Section 1252 provides, in part:

"(c) For the purpose of this Section only ’wages’ includes any and all compensation for personal services whether performed as an employee or as an independent contractor or as a juror or as a witness, but does not include any payment received by a member of the National Guard or reserve component of the armed forces for inactive duty training, annual training, or emergency state active duty."

UI Code Section 1279 provides, in part:

"(c) For the purpose of this Section only ’wages’ includes any and all compensation for personal services whether performed as an employee or as an independent contractor or as a juror or as a witness, but does not include any payments, regardless of their designation, made by a city of this State to an elected official thereof as an incident to public office, nor any payment received by a member of the National Guard or reserve component of the armed forces for inactive duty training, annual training, or emergency State active duty."

A claimant who performs services as a member of the National Guard or of a reserve component of the armed forces for inactive duty training, annual training, or emergency State active duty is performing services as an employee. There is an employer-employee relationship between the member and the National Guard or military reserve unit.

The remuneration the claimant receives for performing these services is wages since it is compensation for personal services under a contract of hire. The wages are not deductible from the weekly benefit amount of the claim, however.

  1. Part-Time (Weekend Duty) Work:

    The wages paid to the claimant for performing services for inactive duty training, annual training, or emergency State active duty are not deductible from the claimant’s weekly benefit amount because they are exempted from deduction under the provisions of Section 1252 and Section 1279 of the UI Code.

    Thus, any wages the claimant earns during a week for part-time work with the National Guard or military reserve unit are not deductible from the unemployment insurance benefits.

  2. Full-Time Work:

    If an individual performs services for the National Guard or military reserve unit on a full-time basis l40 or more hours per week) and claims benefits for this period, however, the claimant would not be eligible for benefits because the claimant is fully employed.

    The claimant would be denied benefits under the provisions of Section 1252, not because the wages are deductible, but because the claimant is not "unemployed" as defined in Section 1252 of the UI Code. The claimant is not "unemployed" because he or she performed services on a full-time basis.

  3. Wages for Purging Disqualification, Clearing Lag Test:

    As stated above, the remuneration received by a member of the National Guard or a reserve unit is not wages for purposes of Section 1252 and Section 1279 of the UI Code. It is, however, wages for other purposes under the UI Code. It can be used to clear a lag test (Section 1277) and it can be used for purposes of purging a disqualification issued under Section 1256 or Section 1256.5 of the UI Code.

  4. Effect of Inactive or Reserve Duty on Availability:

    The fact that a claimant works less than full-time for the National Guard or military reserve unit during a week for which he or she claims benefits, does not raise a question of availability as the claimant was working in an employer-employee relationship. Part-time work for an employer does not generally raise an issue of availability.

    An issue would arise if the claimant states he or she is not seeking other work or places some restrictions on his or her availability because of being a member of the National Guard or military reserve unit. The availability issue would be resolved applying the principles set forth in Sanchez and in P-B-459.