There is a newer version of the New York Consolidated Laws
2006 New York Code - Provisions Applicable To Public Employees Who Are Absent On Military Duty.
§ 243. Provisions applicable to public employees who are absent on
military duty. 1. Definitions. As used in this section:
(a) The term "public employee" shall mean an officer or employee
holding a position by appointment or employment in the state of New York
or in the cities, counties, towns, villages or school districts thereof,
or in any other political or civil division of the state or of a
municipality, or in any public or special district, or in the service of
any public authority, public benefit corporation, commission or board,
or in any other branch of the public service.
(b) The term "military duty" shall mean military service in the
military, naval, aviation or marine service of the United States
subsequent to July first, nineteen hundred forty, or service under the
selective training and service act of nineteen hundred forty, or the
national guard and reserve officers mobilization act of nineteen hundred
forty, or any other act of congress supplementary or amendatory thereto,
or any similar act of congress hereafter enacted and irrespective of the
fact that such service was entered upon following a voluntary enlistment
therefor or was required under one of the foregoing acts of congress, or
service with the United States public health service as a commissioned
officer, or service with the American Red Cross while with the armed
forces of the United States on foreign service, or service with the
special services section of the armed forces of the United States on
foreign service, or service in the merchant marine which shall consist
of service as an officer or member of the crew on or in connection with
a vessel documented under the laws of the United States or a vessel
owned by, chartered to, or operated by or for the account or use of the
government of the United States, or service by one who was employed by
the War Shipping Administration or Office of Defense Transportation or
their agents as a merchant seaman documented by the United States Coast
Guard or Department of Commerce, or as a civil servant employed by the
United States Army Transport Service (later redesignated as the United
States Army Transportation Corps, Water Division) or the Naval
Transportation Service; and who served satisfactorily as a crew member
during the period of armed conflict, December seventh, nineteen hundred
forty-one, to August fifteenth, nineteen hundred forty-five, aboard
merchant vessels in oceangoing, i.e., foreign, intercoastal, or
coastwise service as such terms are defined under federal law (46 USCA
10301 & 10501) and further to include "near foreign" voyages between the
United States and Canada, Mexico, or the West Indies via ocean routes,
or public vessels in oceangoing service or foreign waters and who has
received a Certificate of Release or Discharge from Active Duty and a
discharge certificate, or an Honorable Service Certificate/Report of
Casualty, from the Department of Defense, or who served as a United
States civilian employed by the American Field Service and served
overseas under United States Armies and United States Army Groups in
world war II during the period of armed conflict, December seventh,
nineteen hundred forty-one through May eighth, nineteen hundred
forty-five, and who was discharged or released therefrom under honorable
conditions, or who served as a United States civilian Flight Crew and
Aviation Ground Support Employee of Pan American World Airways or one of
its subsidiaries or its affiliates and served overseas as a result of
Pan American's contract with Air Transport Command or Naval Air
Transport Service during the period of armed conflict, December
fourteenth, nineteen hundred forty-one through August fourteenth,
nineteen hundred forty-five, and who was discharged or released
therefrom under honorable conditions; or service in police duty on
behalf of the United States government in a foreign country, if such
person is a police officer, as defined by section 1.20 of the criminal
procedure law, and if such police officer obtained the prior consent of
his or her public employer to absent himself or herself from his or her
position to engage in the performance of such service; or as an enrollee
in the United States maritime service on active duty and, to such extent
as may be prescribed by or under the laws of the United States, any
period awaiting assignment to such service and any period of education
or training for such service in any school or institution under the
jurisdiction of the United States government, but shall not include
temporary and intermittent gratuitous service in any reserve or
auxiliary force. It shall include time spent in reporting for and
returning from military duty and shall be deemed to commence when the
public employee leaves his position and to end when he is reinstated to
his position, provided such reinstatement is within ninety days after
the termination of military duty, as hereinafter defined.
Notwithstanding the foregoing provisions of this paragraph, the term
"military duty" shall not include any of the foregoing services entered
upon voluntarily on or after January first, nineteen hundred forty-seven
and before June twenty-fifth, nineteen hundred fifty; and, on or after
July first, nineteen hundred seventy, the term "military duty" shall not
include any voluntary service in excess of four years performed after
that date, or the total of any voluntary services, additional or
otherwise, in excess of four years performed after that date, shall not
exceed five years, if the service in excess of four years is at the
request and for the convenience of the federal government, except if
such voluntary service is performed during a period of war, or national
emergency declared by the president.
(c) The term "termination of military duty" shall mean the date of a
certificate of honorable discharge or a certificate of completion of
training and service as set forth in the selective training and service
act of nineteen hundred forty, and the national guard and reserve
officers mobilization act of nineteen hundred forty or, in the event of
the incurrence of a temporary disability arising out of and in the
course of such military duty, the date of termination of such
disability. The existence and termination of such temporary disability,
in the case of a public employee occupying a position in the classified
civil service or of a person on an eligible list for a position in such
service, shall be determined by the civil service commission having
jurisdiction over such position and, in the case of a public employee
occupying a position not in the classified civil service, shall be
determined by the officer or body having the power of appointment.
(d) The term "position" shall mean the office or position held by a
public employee at the time of his entrance upon military duty.
2. Leave of absence and re-employment. (a) Every public employee shall
be entitled to absent himself or herself from his or her position while
engaged in the performance of military duty, except for those police
officers who are required by paragraph (b) of subdivision one of this
section to obtain the prior consent of their public employers before
absenting themselves from their positions for military service, who
accordingly shall be entitled to absent themselves from their positions
only after obtaining such prior consent, and shall be deemed to have a
leave of absence for the duration of such military duty. Such public
employee shall be reinstated to his position as soon as possible
provided he makes application for such reinstatement within ninety days
after the termination of his military duty, or at any time during his
terminal leave. Thereafter, he may be so reinstated, at any time after
such ninety-day period and within one year after the termination of his
military duty, in the discretion of the appointing officer or body.
(b) A public employee who resigned from his position during his
military duty, or within six months prior to the commencement of such
military duty, may, in the discretion of the appointing officer or body,
be reinstated to his position within one year after the date of his
resignation, excluding from said period the time he was on military
duty. Every public employee reinstated under the provisions of this
subdivision or pursuant to subdivision one-a of rule sixteen of the
rules for the classified civil service for the state or pursuant to any
comparable rule of a municipal civil service commission, shall be deemed
to have been on a leave of absence for the duration of his military
duty.
3. Substitutes. A position held by a public employee who is absent on
military duty shall, so far as practicable, be continued in existence
but shall be deemed temporarily vacant and shall be filled only when the
public interest so requires. Any appointment to fill such vacancy shall
be designated as a substitute appointment and the request for
certification, the certification and the indicia of appointment shall
show that the person is being appointed as a substitute. Any public
employee, who accepts appointment as a substitute shall be granted a
leave of absence from his former position until the termination of such
appointment and the temporary vacancy resulting from such leave of
absence shall be filled in like manner only when the public interest so
requires and any appointment to such position shall also be designated
as a substitute appointment and the request for certification, the
certification and the indicia of appointment shall show that the person
is being appointed to such position as a substitute. Every such
substitute appointment shall be for a period not exceeding the leave of
absence of the former incumbent and shall be made in accordance with the
provisions of law applicable to such position, provided, however, that
such substitute appointment may be continued for a period in excess of
one year, notwithstanding the provisions of section fifteen of the civil
service law. Such substitute employee shall acquire no right to
permanent appointment or tenure by virtue of his service as a substitute
and such service may be terminated at any time in the discretion of the
appointing officer or body. His rights, if any, with respect to
appointment or tenure, shall not, however, be impaired in any way by his
acceptance of an appointment as a substitute and his name shall remain
on any eligible or other list and he shall be certified as eligible for
any other appointment authorized by law during the existence of such
list.
The appointment of a substitute shall terminate (a) upon the return of
the former incumbent to his position or (b) upon the death or permanent
total disability of the former incumbent or (c) upon failure of the
former incumbent to return to said position within ninety days after the
termination of his military duty or (d) upon the appointment or
promotion of the former incumbent to another position as authorized by
subdivision six of this section, and, upon the happening of any of such
events, said position may then be filled in the manner provided by law.
4. Pensions. Any public employee who is a member of any pension or
retirement system may elect, while on military duty, to contribute to
such pension or retirement system the amount which he would have
contributed had his employment been continuous and upon making such
contribution he shall have the same rights in respect to membership in
the retirement system as he would have had if he had been present and
continuously engaged in the performance of the duties of his position.
Time during which a member is absent on military duty shall not
constitute an interruption of continuous employment, but such time shall
not be counted or included in determining the length of total service
unless such member contributes to the retirement system the amount he
would have been required to contribute if he had been continuously
employed during such period. Such contribution, or any part thereof, may
be paid at any time and from time to time, while in military duty, or
within five years after the date of his restoration to his position or
before December thirty-first, nineteen hundred sixty-two, whichever date
is later, or in the event of the death of the member while in military
duty such contribution, or any part thereof, may be paid by the named
beneficiary or the legal representative of the member's estate within
one year following proof of such death. A member of the New York state
employees' retirement system or of the New York state policemen's and
firemen's retirement system, other than a member of the state police in
a collective negotiating unit established pursuant to article fourteen
of the civil service law, who is in the employ of the state on March
thirty-first, nineteen hundred seventy, who failed to make such
contributions during the prescribed period of time may nonetheless
obtain credit for time during which he was on military duty by
depositing with such retirement system an amount equal to the
contribution he would have made had he made a timely election, with
regular interest, on or before March thirty-first, nineteen hundred
seventy-two, provided, however, such member may elect to deposit such
amount over a period of time no greater than the period for which credit
is being claimed, in which case such payments must commence no later
than March thirty-first, nineteen hundred seventy-two. If the full
amount of such payments is not paid to the retirement system, the amount
of service credited shall be proportional to the total amount of the
payments made. A member of the New York state policemen's and firemen's
retirement system who is a member of the state police in a collective
negotiating unit established pursuant to article fourteen of the civil
service law, who is in the employ of the state on March thirty-first,
nineteen hundred seventy-one, who failed to make such contributions
during the prescribed period of time may nonetheless obtain credit for
time during which he was on military duty by depositing with such
retirement system an amount equal to the contribution he would have made
had he made a timely election, with regular interest, on or before March
thirty-first, nineteen hundred seventy-two, provided, however, such
member may elect to deposit such amount over a period of time no greater
than the period for which credit is being claimed, in which case such
payments must commence no later than March thirty-first, nineteen
hundred seventy-two. If the full amount of such payments is not paid to
the retirement system, the amount of service credited shall be
proportional to the total amount of the payments made.
A member of the New York state teachers' retirement system, whose
service terminates on the expiration of his contract, and for whom there
is no employer to cover the cost of his accruing pension rights while in
military service following the cessation of his contract, may pay in
addition to his own contributions, an amount equal to the percentage of
his salary which his employer would have paid had he remained under
contract, which contributions shall be paid into the pension
accumulation fund of the aforementioned retirement system and be treated
as if they had been continued by his employer except that in the event
of his death as a member prior to retirement or on his withdrawal of his
accumulated contributions from the system, the amounts so paid by him
shall be returnable, with regular interest, as if they were a part of
his accumulated contributions. Such contributions or any parts thereof
may be paid at any time and from time to time while in military duty or
within five years after the member has returned to public school
teaching in New York state or before December thirty-first, nineteen
hundred sixty-two, whichever date is later.
Any such member, while on military duty, or his beneficiary, as the
case may be, shall be entitled to all benefits of the retirement system
of which he is a member except accidental disability retirement and
accidental death benefit.
Any public employee holding a position by appointment who is or was a
member of any pension or retirement system and who, while such member
and while on military duty, applied for retirement as a member of such
system to take effect within thirty days prior to the date of expiration
of his appointment and who shall accordingly have been retired pursuant
to such application but thereafter and within thirty days after the
effective date of such retirement shall have been reappointed to his
said position and shall have applied thereafter, before or upon his
release from military duty, for membership in such pension or retirement
system, shall be deemed to have had continuous membership in such
pension or retirement system and shall be entitled to all the rights,
benefits and privileges under his contract of membership as it existed
at the time of such retirement, provided he shall (1) return any
pension, annuity and retirement allowance payments received by him
during the period of such retirement, (2) consent to the termination of
his right to receive pension, annuity or retirement allowance payments
on the basis of such retirement, (3) pay into the appropriate fund of
such pension or retirement system the amount he would have contributed
thereto, if he had not so retired, on the basis of the salary he was
receiving when he so retired, and (4) pay into the appropriate fund of
such pension or retirement system the amount which his employer would
have paid thereto on his account if he had continued as a member during
such period of retirement.
4-a. Notwithstanding the provisions of subdivision four of this
section, in any case where any member of any pension or retirement
system maintained under any provision of the administrative code of the
city of New York, or under section twenty-five hundred seventy-five of
the education law, did not, within five years after the date of the
restoration of such member to his position, pay the contribution
required by such subdivision four to be paid within such period, as a
prerequisite to obtaining service credit in such system for the period
of his military duty, such contribution, or any part thereof remaining
due, may be paid on or before June thirtieth, nineteen hundred
fifty-seven, provided that any such member who, on or before such
last-mentioned date, retires or is retired, without having paid such
contribution, shall not be entitled to make such payment.
4-b. (a) As used in this subdivision, the following terms shall mean
and include:
(1) "New York city veteran of world war II". Any member of the New
York city employees' retirement system in city-service who, after his
last membership in such system began, served as a member of the armed
forces of the United States during the period beginning on December
seventh, nineteen hundred forty-one and ending on December thirty-first,
nineteen hundred forty-six, and was honorably discharged or released
under honorable circumstances from such service.
(2) "New York city veteran of the Korean conflict." Any member of the
New York city employees' retirement system in city-service who, after
his last membership in such system began, served as a member of the
armed forces of the United States during the period beginning on the
twenty-seventh of June, nineteen hundred fifty and ending on the
thirty-first day of January, nineteen hundred fifty-five, and was
honorably discharged or released under honorable circumstances from such
service.
(b) Notwithstanding any provision of subdivision four of this section
to the contrary, any New York city veteran of World War II or New York
city veteran of the Korean conflict who did not, within the applicable
period of time prescribed by subdivision four of this section, comply
with the requirements of such subdivision for obtaining service credit
in the New York city employees' retirement system for the period of his
military duty, may, by a written application duly executed and filed
with the board of estimate of the city of New York, prior to July first,
nineteen hundred sixty-nine, elect to purchase such service credit. If
such veteran shall pay to such retirement system, prior to July first,
nineteen hundred sixty-nine, the amount which he would have contributed
thereto if he had been continuously employed during such period of
military duty, he shall have in such retirement system the service
credit which he could have obtained for such period of military duty if
he had complied with the requirements of such subdivision four within
the period of time therein prescribed.
5. Rights upon restoration to position. A public employee restored to
his position after the termination of his military duty or after the
termination of his substitute appointment shall thereafter be entitled
to the rate of compensation he would have received had he remained in
his position continuously during such period of military duty or during
such period of service as a substitute and shall be deemed to have
rendered satisfactory and efficient service in such position during the
period of his leave of absence and shall not be subjected directly or
indirectly to any loss of time service, increment, or any other right or
privilege, or be prejudiced in any way with reference to promotion,
transfer, reinstatement or continuance in office. If a public employee,
by reason of injuries sustained or disease contracted while on military
duty, as hereinbefore defined, is incapable of efficiently performing
the duties of his position after the termination of his military duty,
he may, with the approval of the civil service commission having
jurisdiction of such position, be transferred to any vacant position in
the same jurisdictional classification and in the same governmental unit
for which he has applied in writing and for which he has been found
qualified, after such tests as the commission may deem appropriate,
provided the rate of compensation for such position is not greater than
the rate of compensation for the position to which such public employee
was restored. If a promotion examination is held while a public employee
entitled to participate therein is on military duty, such public
employee shall be given a comparable examination, provided he makes
request therefor within sixty days after restoration to his position. If
he passes such examination his name shall be placed upon a special
eligible list provided that his name would have been reached for
certification between the date when he entered upon such military duty
and the date that he was officially notified that he had passed such
examination. Such special eligible list shall remain in existence for a
period of two years from the date that the name of such person is placed
thereon and such special eligible list shall be certified before
certification shall be made from any subsequent or eligible list,
whether open competitive, promotion or preferred which has been
established for the same position, or from the original eligible list
for such position. A public employee thus appointed after passing a
comparable examination as herein provided, shall, for the purpose of
computing seniority credit and training and experience credit upon
promotion and seniority in the event of suspension or demotion, be
deemed to have been appointed on the earliest date upon which any
eligible, who was lower on the regular promotion eligible list, was
appointed.
6. Appointment while on military duty. Any appointing officer or body
may, in his or its discretion, fill a vacancy by the appointment or
promotion of a public employee or any other person legally eligible for
such appointment or promotion, notwithstanding the absence of such
person or employee in military duty but such appointment or promotion
shall not serve to increase in any degree any civil compensation which
he may have been receiving pursuant to section six of chapter six
hundred eight of the laws of nineteen hundred fifty-two. Such employee,
upon the termination of his military duty shall have the same rights,
privileges and obligations as if he had served continuously in such
position from the date of his appointment thereto.
7. Status of existing lists. Any person whose name is on any eligible
list shall, while in military duty, retain his rights and status on such
list. If the name of any such person is reached for certification during
his military duty, it shall be placed on a special eligible list in the
order of his original standing, provided he makes request therefor
following termination of his military duty and during the period of his
eligibility on such list. Such list shall be certified before
certification shall be made from a subsequent open competitive or
promotion eligible list for the same position or from the original
eligible list for such position. Such names shall remain on such special
eligible list for a period of two years after the termination of such
military duty. Any such person thus appointed shall, for the purpose of
computing seniority credit and training and experience credit for
promotion and date of membership in the retirement system and seniority
in the event of suspension or demotion, be deemed to have been appointed
on the earliest date upon which any eligible, who was the lower on such
original eligible list, was appointed, provided, however that service
credit shall be computed from the actual date of appointment. The
retirement system contributions of any such person who made any
contribution to the retirement system pursuant to article fourteen or
fifteen of the retirement and social security law, and who was appointed
on or after July twenty-seventh, nineteen hundred seventy-six shall not
be refunded.
7-b. Status of applicants called for military duty before taking all
parts of an examination. Any person who has passed one or more of
several parts of an examination for a position for which competitive
examinations are required, and who has been prevented from taking or
completing the remaining part or parts of the examination for such
position by reason of his service in military duty shall be afforded an
opportunity to take a comparable examination as to such remaining part
or parts, provided he makes request therefor during the period of ninety
days following termination of his military duty. If he passes such
examination his name shall be placed upon a special eligible list
provided that his name would have been reached for certification between
the date when he entered upon such military duty and the date that he
was officially notified that he had passed such examination. Such
special eligible list shall remain in existence for a period of two
years from the date that the name of such person is placed thereon. Such
special eligible list shall be certified before certification shall be
made from a subsequent eligible list whether open competitive, promotion
or preferred for the same position or from the original eligible list
for such position. Any such person thus appointed shall, for the purpose
of computing seniority credit and training and experience credit for
promotion and seniority in the event of suspension or demotion, be
deemed to have been appointed on the earliest date upon which any
eligible was appointed who was lower on such original eligible list or
lower in relative order of rating thereon than such person would have
been had his name been entered thereon.
8. Service and efficiency ratings. A public employee who is absent on
military duty shall be credited with the average of the efficiency
ratings which he received for the three periods immediately prior to his
absence on military duty but such rating shall not be less than a
passing grade for the period of such absence, nor shall it be less than
the rating which he received for the period immediately prior to his
absence on military duty. In computing seniority and service
requirements for promotion eligibility, such period of military duty
shall be counted as service in the position held by such employee.
9. Probationary service. If a public employee or other person enters
military duty before the expiration of the probationary period in any
position to which he may have theretofore been appointed, or to which he
may thereafter be appointed or promoted pursuant to subdivision six of
this section, the time he is absent on military duty shall be credited
as satisfactory service during such probationary period.
9-a. Probationary service of teachers. Notwithstanding the provisions
of subdivision five of this section and subdivision four of section two
hundred forty-two of this chapter, in any case where a teacher, as
defined in section thirty-one hundred one of the education law, enters
military duty before the expiration of the probationary period to which
he may have theretofore been appointed, the time he is absent on
military duty shall be credited as satisfactory service during such
probationary period. If the end of such probationary service occurs
while the teacher is on military duty or within one year following the
termination of such military duty, the period of such probationary
service may be extended by the local board of education for a period of
not to exceed one year from the date of termination of such military
duty, but in no event for a period of probationary service in the actual
performance of teaching services, exclusive of such military service,
beyond that required by the school district at the time of his entry
into military service.
10. Physical examination. If a physical examination is required for
employment in or promotion to any position in the public service, the
physical disability of a candidate incurred by reason of injury
sustained or disease contracted while in military duty, as hereinbefore
defined, or during the world war shall not be deemed to disqualify him
for such position unless the disability is of such a nature as to
prevent him from efficiently performing the duties of such position.
10-a. Age requirements. If maximum age requirements are established by
law, or rule or by action of a civil commission for examination for, or
for appointment or promotion to, any position in the public service, the
period of military duty as hereinbefore defined, the period of service
after June twenty-seventh, nineteen hundred fifty, voluntarily entered
upon between January first, nineteen hundred forty-seven, and June
twenty-seventh, nineteen hundred fifty, if such service otherwise falls
within the definition of military duty, and the period of terminal leave
granted by the military authorities of a candidate or eligible shall not
be included in computing the age of such candidate or eligible for the
purposes of such examination or appointment or promotion; provided,
however, that neither shall the total time deducted hereunder in
computing the age of a candidate or eligible exceed six years.
11. Preferred lists. If the position occupied by a public employee is
abolished prior to the termination of his military duty his name shall
be placed forthwith upon a preferred list, as herein provided. Public
employees in the competitive class of the civil service shall have their
names placed upon a preferred eligible list, pursuant to the provisions
of section thirty-one of the civil service law and public employees
subject to section twenty-five hundred thirty-five of the education law
shall have their names placed upon a preferred list as provided in such
section.
12. Military re-employment lists. If the position occupied by a public
employee, who is not included in the provisions of subdivision eleven of
this section, has been abolished or is no longer in existence upon the
termination of his military duty such employee, upon filing a written
request within ninety days after the termination of his military duty,
shall have his name placed forthwith, upon a military re-employment
list, as herein provided, for the position last held by him or any
similar position. The military re-employment list for public employees
in the classified civil service, other than in the competitive class,
shall be established by the civil service commission having jurisdiction
of such position and such list for public employees who are not in the
classified civil service shall be established by the officer who makes
payment of the wages or salary for such position. Separate lists shall
be established for positions in the non-competitive and the labor class
of the classified civil service. After the establishment of a military
re-employment list, it shall be made available to appointing officers
and bodies and no position shall be filled until the appointing officer
or body certifies to the civil service commission or to the disbursing
officer, as the case may be, that no person on such military
re-employment list, who formerly held the same or a similar position, is
qualified to fill and willing to accept appointment to such vacancy. The
civil service commission or the disbursing officer, as the case may be,
shall refuse to approve the payroll for such position until such
certificate is filed. Appointments from a military re-employment list
may be made without regard to the order of standing on said list.
Eligibility for appointment from such military re-employment list shall
not continue for a period longer than four years from the date of
termination of military duty. Refusal to accept an offer of appointment
to a position similar to the last held by such public employee shall
cause the removal of his name from such list. Upon a failure or refusal
to comply with the provisions of subdivisions eleven and twelve of this
section, the supreme court is empowered, upon the filing of a petition
or other appropriate pleading, by the public employee entitled to the
benefits of such provisions, to specifically require compliance
therewith, and may, as an incident thereto, compensate such employee for
any loss of wages suffered by reason of such unlawful action. The court
shall order a speedy hearing in any such case and shall advance it on
the calendar. Nothing in this subdivision shall be construed to apply to
positions in the exempt class of the classified civil service.
13. Temporary positions. The provisions of subdivisions three and five
of this section shall not be applicable to a public employee holding a
temporary position, but such employee shall, nevertheless, be placed
upon a military re-employment list, as provided in subdivision twelve of
this section and, so far as practicable, shall be restored to a position
similar to that held at the time such employee entered military duty.
14. Public employees appointed for a definite term. A public employee
appointed for a definite term shall be deemed to have a leave of absence
until the end of his term of office and until his successor has been
appointed, but not thereafter, for the purpose of determining his rights
under this section.
15. Elective officers. The provisions of subdivision four of this
section shall be applicable to an elective officer and he shall be
deemed to continue in his office until his successor has been elected,
but not thereafter, for the purpose of determining his rights under such
subdivision. No other provisions of this section shall be applicable to
elective officers.
16. Salaries. Nothing in this section shall be construed to give any
public employee any claim for salary or compensation during his absence
on military duty.
17. Certificates as to service. A certificate signed by the commander,
total army personnel center as to persons in the army or in any branch
of the United States service while serving pursuant to law with the army
of the United States, signed by the commander, naval military personnel
as to persons in the United States service while serving pursuant to law
with the United States navy, and signed by the commandant, United States
marine corps, as to persons in the marine corps, or in any other branch
of the United States service while serving pursuant to law with the
marine corps, signed by the chief, air force military personnel center
as to persons in the United States service while serving pursuant to law
with the United States air force or signed by an officer designated by
any of them, respectively, for the purpose, shall when produced be prima
facie evidence as to any of the following facts stated in such
certificate: That a person named has not been, or is, or has been in
military service; the time when and the place where such person entered
military service, his residence at that time, and the rank, branch, and
unit of such service that he entered, the dates within which he was in
military service, the monthly pay received by such person at the date of
issuing the certificate, the time when and the place where such person
died in or was discharged from such service. It is the duty of the
foregoing officers to furnish such certificate on application, and any
such certificate when purporting to be signed by any one of such
officers, or by any person purporting upon the face of the certificate
to have been so authorized, shall be prima facie evidence of its
contents and of the authority of the signer to issue the same.
18. Rights and privileges of public employees and other persons while
engaged in essential war work. Every public employee, or other person to
whom this section is applicable, who has been or may be discharged or
relieved from military duty on condition that he engage in work
essential to the prosecution of the war, shall be entitled, while
engaged in such work, to all the rights and privileges to which he would
have been entitled, under the provisions of this section, had he
continued to perform military duty. A certificate of the war manpower
commission, or of the United States employment service, or of the proper
authorities in the armed forces of the United States, or of any other
authorized federal agency, that any such public employee, or other
person to whom this section is applicable, is or has been, for the
period stated in such certificate, engaged in such work, shall be
required in order to confer upon such employee or person the rights and
privileges accorded by this subdivision, and such certificate shall be
presumptive evidence of such facts.
19. Leaves of absence and re-employment of certain teachers and school
supervisors. A member of the teaching or supervising staff in a school
district other than a school district employing a superintendent of
schools shall be entitled to absent himself from his position while
engaged in the performance of military duty and shall be deemed to have
a leave of absence for the duration of such military duty. Such person
shall be reinstated to his position provided he makes application for
such reinstatement within ninety days after the termination of his
military duty, notwithstanding that his contract with the school
district shall have expired.
20. Payment of pension contributions by city of New York. A. As used
in this subdivision:
(1) the term "New York city member" shall mean any public employee (a)
who was granted a leave of absence for the period of his military duty
pursuant to the provisions of subdivision two of this section and who
was on April eleventh, nineteen hundred forty-seven, or shall become
prior to January first, nineteen hundred fifty-two, a member of any
pension or retirement system to which the city of New York, the
Triborough bridge and tunnel authority, or the New York city housing
authority is required by law to make contributions on account of such
employee, or (b) who was on April eleventh, nineteen hundred
forty-seven, or shall thereafter become a member of any such system and
who is or shall be entitled to seniority credit and training and
experience credit under the provisions of subdivision seven, seven-a or
seven-b of this section by reason of appointment from an eligible list
or special eligible list, but such term shall not include any public
employee whose rights as to civil compensation are or were governed by
section six of chapter six hundred eight of the laws of nineteen hundred
fifty-two;
(2) the term "system" shall mean any pension or retirement system
referred to in subsection (1) of paragraph A of this subdivision.
B. Except as otherwise provided in paragraphs C, D and E of this
subdivision, any New York city member shall have as to any period of
military duty performed by him the same rights and shall be entitled to
the same benefits in respect to his membership in any system as he would
have had if he had been present and continuously engaged in the
performance of the duties
(1) of the position from which he was granted a leave of absence
pursuant to the provisions of subdivision two of this section, if he is
not entitled to seniority and training and experience credit as provided
by subdivision seven, seven-a or seven-b of this section, and was not
appointed to a position while on military duty as provided by
subdivision six of this section, or
(2) if he was granted such leave and received an appointment as
provided by subdivision six of this section, of the position from which
he received such leave of absence, up to the date of such appointment,
and thereafter as if he had been present and continuously engaged in the
performance of the duties of such position to which he was appointed, or
(3) if granted such leave of absence and entitled to credit as
provided by subdivision seven, seven-a or seven-b of this section, of
the position from which he was granted such leave of absence, up to the
date upon which he is deemed to have been appointed as provided in such
subdivision seven, seven-a or seven-b and thereafter as if he had been
present and continuously engaged in the performance of the duties of the
position with respect to which the date on which he is deemed to have
been appointed is specified by such subdivision seven, seven-a or
seven-b, or
(4) if he did not receive such leave, but is entitled to credit under
such subdivision seven, seven-a or seven-b, of the position to which he
is deemed to have been appointed on the date specified therein, and as
if he had actually been appointed and had entered upon the performance
of the duties of such position upon such date.
C. No New York city member shall be entitled to any of the rights,
benefits or credit conferred by this subdivision with respect to
(1) any period of military duty, or portion thereof, during which the
military base pay of such member or his compensation for military duty
performed other than as a member of the armed forces, exceeded the civil
compensation of the position or positions with respect to which his
rights and benefits for the corresponding period or portion thereof are
determined by the provisions of paragraph B of this subdivision, or
(2) any period of military duty or portion thereof prior to the date
upon which any member, who was not granted a leave of absence pursuant
to the provisions of subdivision two of this section, is deemed to have
been appointed by virtue of the provisions of subdivision seven, seven-a
or seven-b of this section.
As to any period of military duty or portion thereof referred to in
subsection (1) of this paragraph, the rights of any such member with
respect to membership in any system shall be governed by the provisions
of subdivision four of this section.
D. Time during which any New York city member was absent on military
duty shall not constitute an interruption of continuous employment and,
except as provided in paragraph C of this subdivision, such time shall
be counted and included in determining the length of total service.
E. Upon the death or retirement of a New York city member, but not
otherwise, the city of New York, the Triborough bridge and tunnel
authority, or the New York city housing authority (whichever shall have
first employed such member after the termination of his military duty)
shall pay into the appropriate fund of the system in which such member
held membership at the time of his death or retirement, the amount of
all contributions which such member would have been required to make if,
during the period of his military duty, he had been present and had
continuously performed the duties of the position or positions with
respect to which his rights and benefits during the corresponding period
or portion thereof are determined by the provisions of paragraph B of
this subdivision; provided that such city or authority shall not pay
into any such fund any contributions payable or accruing for any period
of military duty or portion thereof, referred to in paragraph C of this
subdivision. Each such member shall be credited with such contributions
paid in his behalf by such city or authority for all pension or
retirement purposes; provided that (1) any portion of any retirement
allowance, pension, death benefit or other benefit or right derived from
such contributions paid in behalf of such member by such city or
authority, shall be such amount as the payment required by this
paragraph, made at the time herein specified, shall provide, (2) such
member shall not under any circumstances have the right to withdraw the
amount of such contributions, or any interest thereon, as a part of his
accumulated deductions or otherwise, and (3) such contributions shall be
excluded in determining the amount of any loan which any such member
shall be entitled to make.
F. In any case where any New York city member has heretofore paid or
shall hereafter pay to any system any contributions which the city of
New York, the Triborough bridge and tunnel authority, or the New York
city housing authority is required to pay to such system by the
provisions of this subdivision, such contributions shall be regarded as
excess contributions which are (1) creditable in lieu of regular
contributions (a) upon the return of such member to his position after
the termination of his military duty, or (b) upon his becoming a member
of such system, if he did not become a member thereof until after the
termination of such duty, or (2) payable in addition to other benefits
upon separation meanwhile with benefit.
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