San Jose Municipal Code Part 13 Death While on Military Leave of Absence

As used in this Part 13:

A. "Armed forces of the United States" means the United States Air Forces, Army, Navy, Marine Corps, Coast Guard, and the Army and Navy Nurse Corps, and no other forces or service.

B. "Social Security Act" means those provisions of the Federal Social Security Act which are set forth in Subchapter II of Chapter 7 of Title 42 of the United States Code Annotated.

C. "State Militia" and "Militia of the state of California" mean the California National Guard or California National Guard Reserve, and no other forces, or service.

D. "Survivor of suspended member who dies in military service" means the widow, widower, surviving divorced wife, child, mother or parent, specified in Section 402 of the Social Security Act, if any, of the "suspended member who dies in military service," surviving after the death of the "suspended member who dies in military service," who:

1. Is or will be entitled, upon or at any time after and because of the death of the "suspended member who dies in military service," to collect from the Federal Social Security Program, under and by virtue of the provisions of Section 402 of the Federal Social Security Act, and subject to the provisions of said Social Security Act, the widow's, widower's, surviving divorced wife's, child's, mother's or parents' survivors monthly insurance benefits (other than hospital insurance benefits, annuities, Medicare benefits or other nonmonthly survivors insurance benefits) specified in Section 402 of said Social Security Act; or

2. Would be entitled, upon or at any time after and because of the death of the "suspended member who dies in military service," to collect from the Federal Social Security Program, under and by virtue of the provisions of the above specified Section 402 of the Federal Social Security Act and subject to the provisions of said Social Security Act, the widow's, widower's, survivor's, surviving divorced wife's, child's, mother's or parents' survivors monthly insurance benefits (other than hospital insurance benefits, annuities, Medicare benefits or other nonmonthly survivors insurance benefits) specified in Section 402 of said Social Security Act if the "suspended member who dies in military service" has been entitled to credit, under the provisions of said Federal Social Security Act, for period of city service rendered on or after July 1, 1958 only, for which such "suspended member who dies in military service" was entitled to credit under the provisions of the retirement system established by the provisions of this Chapter 3.36.

E. "Suspended member who dies in military service" means a person whose membership in this retirement system is suspended in time of tar involving the United States as a belligerent under and by virtue of the provisions of Section 3.36.1600, because of the grant to him of a leave of absence without pay, from city employment for monthly compensation, for the purpose of joining the armed forces of the United States or for the purpose of serving with any reserve force or corps of the armed forces of the United States or with the Militia of the state of California, if, being a member of such reserve force or corps or of such State Militia he is ordered by competent military authority to active duty with such reserve force or corps or State Militia, and who does in fact without unreasonable and unnecessary delay join such armed forces of the United States during the existence of said war or does in fact serve in active duty during the existence of said war with said reserve forces, corps or State Militia, and who in addition dies between the first day of October, 1967 and the thirtieth day of January, 1970, inclusive, during said suspension and leave of absence and while in active service in such armed forces of the United States, reserve forces or corps or State Militia and while said war still exists. Said term does not mean or include any such person who died or dies prior to October 1, 1967 or after January 30, 1970.

F. "War involving the United States as a belligerent" shall be deemed to exist:

1. Whenever Congress has declared war until peace has been formally restored or until Congress or the President proclaims or declares that such war or hostilities therein have ceased or terminated, whichever is earlier:

2. Whenever the United States is engaged in active military operations against any foreign power, whether or not war has been formally declared; or

3. Whenever the United States is assisting the United Nations, in actions involving the use of armed force, to maintain or restore international peace and security.

(Prior code §§ 2903.350 - 2903.355.)

Subject to the conditions, limitations and restrictions set forth in this section and those set forth in other sections of this Part 13, each survivor of a suspended member who dies in military service, defined in Section 3.36.1800D, shall be entitled to receive, and shall be paid, from the retirement fund established and maintained pursuant to the other parts of this Chapter 3.36, for and during the time or times only which are hereinafter specified in Section 3.36.1820, a monthly survivorship allowance equal to the difference between:

A. The amount of monthly survivors insurance benefit (other than hospital insurance benefits, annuities, Medicare benefits or other nonmonthly survivor's insurance benefits), if any, which such survivor is or will be entitled to collect from the social security program, for and during the time or times specified in Section 3.36.1820, because of death of the suspended member who dies in military service, under and pursuant to the provisions of Section 402 of and subject to the provisions of the Federal Social Security Act; and

B. The amount of monthly survivors insurance benefit (other than hospital, insurance benefits, annuities, Medicare benefits or other nonmonthly survivor's insurance benefits) which survivor would be entitled to collect from the social security program, for and during the time or times hereinafter specified in Section 3.36.1820, because of the death of the suspended member who dies in military service, under and pursuant to the provisions of Section 402 of and subject to the provisions of the Federal Social Security Act, if the suspended member who dies in military service had been entitled to credit, under the provisions of the Federal Social Security Act, for the periods of city service rendered on or after July 1, 1958 only, for which the suspended member who dies in military service was entitled to credit as city service under the provisions of the retirement system established by this Chapter 3.36.

(Prior code § 2903.356.)

Any monthly allowance which is payable to a survivor of a suspended member who dies in military service under and pursuant to the preceding Section 3.36.1810 is and shall be payable only for and during the month or months for and during which such survivor would be entitled to a monthly survivor's insurance benefit (other than hospital insurance benefits, annuities, Medicare benefits or other nonmonthly survivor's insurance benefits) under and by virtue of the provisions of Section 402 of and subject to the provisions of the Federal Social Security Act, because of the death of the suspended member who dies in military service, if the suspended member who dies in military service had been entitled to credit, under the provisions of the Federal Social Security Act, for the periods of city service rendered on or after July 1, 1958 only, for which the suspended member who dies in military service was entitled to credit as city service under the provisions of the retirement system established by this Chapter 3.36.

(Prior code § 2903.357.)

Anything elsewhere to the contrary notwithstanding, no person shall be entitled to or be paid any benefit or allowance whatever under and by virtue of any of the provisions of this Part 13 if:

A. The membership of the suspended member who dies in military service in this retirement system shall have already been terminated, prior to his death, by retirement for service or disability, resignation, discharge, discontinuance of service, or by the occurrence of any other event, under and by virtue of the provisions of Section 3.36.1610 of this chapter; or

B. Said suspended member who dies in military service was entitled, at or prior to his death, to immediate retirement for service under the provisions of the retirement system established by this Chapter 3.36; or

C. Said suspended member who dies in military service, at the time of commencement of the leave of absence specified in Section 3.36.1800E, was not entitled to credit, under the provisions of this retirement system, for at least two years of service under this retirement system; or

D. Any survivor or estate of said suspended member who dies in military service is entitled to any allowance or other benefit under and by virtue of the provisions of other parts of this Chapter 3.36 as a result of the death of the suspended member who dies in military service, unless each such survivor and estate waives his or its right to receive any and all allowances or benefits payable to them or either of them under the provisions of other parts of this chapter; or

E. Said suspended member who dies in military service after joining the armed forces of the United States, or after reporting to active duty with a reserve force or corps of such armed forces, or with the State Militia, pursuant to orders of competent military authority, and before dying, voluntarily requested or agreed to an extension of his original term of enlistment, service or tour of duty or to an additional term of enlistment, service or tour of duty, or otherwise continued his active service with said armed forces or militia beyond the first date that he could have terminated or left active service or could have caused his active service to be terminated; or

F. Said suspended member who dies in military service had actively served in any of the armed forces of the United States, or in any reserve force or corps of such armed forces of the United States, or in any reserve force or corps of such armed forces or with the State Militia, within two years immediately preceding the date of commencement of the leave of absence because of which his membership in this retirement system was suspended under and by virtue of the provisions of Section 3.36.1600, for any period of time in excess of thirty days' duration; or

G. Said suspended member who dies in military service died prior to October 1, 1967 or after January 30, 1970.

(Prior code § 2903.358.)