Allen E. Tackett v. W. Va. Consolidated Public Retirement Board, 16-0963

Allen E. Tackett served in the WV Army National Guard from 1963, including six months active duty in 1963 and ~848 additional days of active service, and became a State employee covered by PERS in 1995.
West Virginia Code § 5-10-15 (2005) mandates credit for active military service during periods of armed conflict; § 5-10-14(a)(1) provides that no less than ten days in a calendar month may be credited as a month of service.
The Consolidated Public Retirement Board (Board) initially credited Tackett six months (1963) and treated Title 32 service as noncreditable; the circuit court reversed and remanded, instructing the Board to determine additional creditable periods.
The Board applied a “fifteen-day” (half-month) rule to award credit, then later (after hearing examiner and Wood decision) adopted a ten-day standard and awarded Tackett 36 months total credit.
Tackett appealed the Board’s calculation method and sought attorney’s fees; the circuit court affirmed the Board’s use of a ten-day standard but did not adjudicate the fee request, directing the parties to confer.
The Supreme Court of Appeals affirmed the calculation of service credit under the ten-day standard and remanded the unresolved attorney’s fees question to the circuit court for prompt resolution.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper method to calculate PERS active military service credit (per‑month credit rule)	Tackett: Board should not use its fifteen-day rule; if not fifteen, then credit must be on an hourly basis because § 5-10-15(a)(1) requires credit for "any time served." He objected to being limited other than by a precise hourly calculation.	Board: No statute or regulation prescribed a calculation method; the Board's reasonable method (ten‑day minimum per W. Va. Code §5-10-14) is entitled to deference and final determination power under §5-10-15(a)(6).	Court: Affirmed circuit court; Board's ten‑day standard is a reasonable adaptation in absence of express rule and entitled to deference.
Award of attorney's fees for compelling credit	Tackett: Seeks fees incurred to obtain service credit.	Board: No authority cited for awarding fees in administrative appeals under the State Administrative Procedures Act; prior mandamus authority is inapplicable.	Court: Circuit court had not ruled on fees (not a final decision); remanded fee question to circuit court for resolution.

West Virginia Consol. Pub. Ret. Bd. v. Wood, 233 W.Va. 222, 757 S.E.2d 752 (2014) (periods of "armed conflict" not limited to specifically listed engagements; factual determination governs)
Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996) (standard for appellate review of administrative orders)
Myers v. W. Virginia Consol. Pub. Ret. Bd., 226 W.Va. 738, 704 S.E.2d 738 (2010) (administrative appeal standards reaffirmed)
Jones v. W. Virginia Pub. Employees Ret. Sys., 235 W.Va. 602, 775 S.E.2d 483 (2015) (de novo review for statutory interpretation issues)
Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453 (1975) (agency construction given great weight unless clearly erroneous)
James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995) (defining finality for appealability of circuit court decisions)