Opinion
No. 1455 C.D. 2012
04-25-2013
Ka Young Lee, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Ka Young Lee (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), dated June 19, 2012. The Board reversed a Referee's decision, thereby determining Claimant to be financially ineligible for unemployment compensation benefits pursuant to Section 404 of the Pennsylvania Unemployment Compensation Law. We now affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804. Section 404 of the Law, pertaining to rates and amount of compensation, establishes the manner in which the unemployment compensation amount shall be calculated for an eligible employee. A claimant's unemployment compensation benefit is calculated based upon his wages earned during his "base year," which is defined as "the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year." Section 4(a) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 753(a).
Claimant filed for unemployment compensation benefits after being discharged from the United States Army (Employer). The Allentown UC Service Center (Service Center) issued a determination finding Claimant financially ineligible for unemployment compensation benefits. Claimant appealed to a Referee. Following a hearing at which only Claimant appeared and testified, the Referee reversed the Service Center's determination. Employer appealed to the Board, and the Board reversed, concluding that Claimant was financially ineligible for benefits.
In so doing, the Board issued the following findings of fact, which are not challenged on appeal:
1. The claimant filed an application for unemployment compensation (UC) benefits effective January 8, 2012.
2. The claimant's base year is the fourth quarter of 2010 through the third quarter of 2011.
3. The claimant's only employment in her base year was with the US Army.
4. The claimant's first full term of service was three years.
5. According to the claimant's DD-214, she did not complete her first full term of service.
6. According to the claimant's DD-214, she was discharged from the US Army under honorable conditions.(Certified Record (C.R.), Item No. 14.)
7. According to the claimant's DD-214, the reason for discharge was unacceptable conduct.
A DD-214 is a federal military document entitled "Certificate of Release or Discharge from Active Duty" that lists, among other things, the type of separation from military service, the reason for the discharge, and the character of service. Rosler v. Unemployment Comp. Bd. of Review, 542 A.2d 624, 625 (Pa. Cmwlth. 1988).
In reaching its conclusion that Claimant was financially ineligible for benefits, the Board cited Section 404(c) of the Law, 43 P.S. § 804(c), which provides for the determination of Claimant's financial eligibility in accordance with the table set forth in Section 404(e) of the Law, 43 P.S. § 804(e). The Board also cited federal statutory and regulatory provisions regarding compensation to be paid by a state to a federal employee. The Board determined that pursuant to 5 U.S.C. §§ 8502(b) and 8521(a), Claimant's employment with and wages from Employer are excluded as employment and wages under the Law, because Claimant's employment did not constitute "Federal service." It reached that determination based on information contained in Claimant's DD-214, which indicated that Claimant was discharged from military service under honorable conditions, but that she was released for "unacceptable conduct" prior to completing her first full term of active service. The Board reasoned that "[b]ecause Claimant was not released prior to completing her first full term of active service due to convenience of the government, medical disqualification, hardship, or personality disorder, her earnings are not includable in her base year." (Id.) Thus, Claimant was financially ineligible for benefits under the provisions of Section 404 of the Law.
5 U.S.C. § 8502(b) provides "[t]hat compensation will be paid by the State to a Federal employee in the same amount, on the same terms, and subject to the same conditions as the compensation which would be payable to him under the unemployment compensation law of the State if his Federal service and Federal wages assigned under section 8504 of this title to the State had been included as employment and wages under that State law." (Emphasis added.)
5 U.S.C. § 8521(a) defines the term "Federal service," as follows:
(1) "Federal service" means active service (not including active duty in a reserve status unless for a continuous period of 90 days or more) in the armed forces or the Commissioned Corps of the National Oceanic and Atmospheric Administration if with respect to that service--
(A) the individual was discharged or released under honorable conditions (and, if an officer, did not resign for the good of the service); and
(B)(i) the individual was discharged or released after completing his first full term of active service which the individual initially agreed to serve, or
(ii) the individual was discharged or released before completing such term of active service--
(Emphasis added.)(I) for the convenience of the Government under an early release program,
(II) because of medical disqualification, pregnancy, parenthood, or any service-incurred injury or disability,
(III) because of hardship (including pursuant to a sole survivorship discharge, as that term is defined in section 1174(i) of title 10), or
(IV) because of personality disorders or inaptitude but only if the service was continuous for 365 days or more[.]
Claimant requested reconsideration by the Board on the basis that the reason for separation set forth on her DD-214 is being reviewed by the Army Review Board for the Correction of Military Records (Army Review Board). According to Claimant, she is seeking to have the reason for separation changed to "medical disqualification," thereby making her eligible for unemployment compensation benefits. Claimant also petitioned this Court for review of the Board's order. By order dated July 26, 2012, the Board denied the request for reconsideration. Claimant did not petition for review of the Board's order denying reconsideration.
During the hearing before the Referee, she testified that military medical staff discovered that she has a brain tumor, which was causing her to suffer headaches. (C.R., Item No. 10 at 5-6.) She was seeking a medical discharge at the same time the administrative discharge occurred. (Id.)
On appeal to this Court, Claimant argues that the Board erred in accepting the information contained in her DD-214 as conclusive evidence of the reason for her discharge from Employer. In support of that position, Claimant argues that her DD-214 is incorrect, that the Army Review Board is currently reviewing her request to correct her DD-214 to reflect a discharge for medical reasons, and that substantial evidence does not exist to support the DD-214's narrative that she was discharged for "unacceptable conduct." Claimant contends that, while she was undergoing the process of being medically discharged, she was discharged unfairly for a minor misconduct. She further contends that the real reasons she was discharged involved Employer's efforts to downsize its force and resentment by a superior for her filing an equal opportunity complaint.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
The Code of Federal Regulations provides that information contained in a military document furnished to an ex-servicemember, including information regarding the type of discharge and the narrative reason for separation from active service, shall be final and conclusive for all purposes of the federal government's Unemployment Compensation for Ex-servicemembers program (UCX Program), including for purposes of appeal and review. See 20 C.F.R. §§ 614.21, .23. In Rosler v. Unemployment Compensation Board of Review, 541 A.2d 624 (Pa. Cmwlth. 1988), we interpreted these regulations and concluded that information contained in a claimant's DD-214 constitutes federal findings that are "final, conclusive, and beyond this Court's power to review." Rosler, 541 A.2d at 627. Thus, we must reject Claimant's argument that the Board erred when it accepted the narrative reason for Claimant's separation contained in her DD-214 as a binding federal finding that was conclusive on appeal. The Board, therefore, did not err when it concluded that Claimant was financially ineligible for unemployment compensation, because she had no earnings that could be included in her base year wages.
We note that Claimant first notified unemployment compensation authorities that her DD-214 was under review by the Army Review Board in her request for reconsideration, which the Board denied. The decision to grant or deny a request for reconsideration is a matter of administrative discretion, and the Court's review of the Board's decision to deny reconsideration is limited to determining whether the Board abused its discretion. See Georgia-Pacific Corp. v. Unemployment Comp. Bd. of Review, 630 A.2d 948, 957 (Pa. Cmwlth. 1993). Claimant did not appeal the Board's denial of her request for reconsideration, and, therefore, whether the Board abused its discretion in denying her request for reconsideration is not before the Court. Moreover, Claimant does not assert that the Board abused its discretion.
We also note, however, that 20 C.F.R. § 614.22, pertaining to corrected federal findings, sets forth procedures for a state agency to follow when an individual has requested that a military agency correct findings in a military document. Specifically, that section provides, in part, as follows:
(b) State agency procedure when request made.
(1) If a determination of entitlement has not been made when an individual notifies a State agency of a request for correction under paragraph (a) of this section, the State agency may postpone such determination until the individual has notified the State agency of the action of the Federal military agency on the request.
(2) If a determination of entitlement has been made when an individual notifies a State agency that a request for correction of Federal findings has been made, or if an individual notifies a State agency prior to a determination of entitlement that a request has been made but such determination is not postponed by the State agency, the individual may file a request for redetermination or appeal in accordance with the applicable State law.
(3) Except as provided in paragraph (c) of this section, no redetermination shall be made or hearing scheduled on an appeal until the individual has notified the State agency of the action of the Federal military agency on a request for correction under paragraph (a) of this section.
(c) State agency procedure when request answered. On receipt of notice of the action of a Federal military agency on a request for correction of its findings, a State agency shall:
(1) Make a timely determination or redetermination of the individual's entitlement, or
(2) Promptly schedule a hearing on the individual's appeal.
If such notice is not received by a State agency within one year of the date on which an individual first filed a claim, or such notice is not given promptly by an individual, a State agency without further postponement may make such determination or redetermination or schedule such hearing.20 C.F.R. § 614.22 (emphasis added). Thus, based upon the regulation cited above, it appears that Section 614.22 may have provided the Board a basis to postpone ruling on Claimant's request for reconsideration once Claimant notified the Board that it was seeking to have the DD-214 corrected by the Army Review Board. We also note that Section 614.22 contemplates that an agency will make a redetermination upon receipt of a corrected finding, if received within one year of notification of a request for correction having been made. --------
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 25th day of April, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge