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MICHAEL STEVEN WEIGHT v. COMMONWEALTH PENNSYLVANIA (04/05/84)

decided: April 5, 1984.

MICHAEL STEVEN WEIGHT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Michael Steven Weight, No. B-207012.

COUNSEL

Marnie E. Abraham, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Judge Rogers.

Author: Doyle

[ 81 Pa. Commw. Page 355]

Before this Court is an appeal by Michael Steven Weight (Petitioner) from a decision and order of the Unemployment Compensation Board of Review (Board) reversing a referee's award of benefits on the grounds that Petitioner had voluntarily left service. We reverse and remand.

Petitioner was on active duty with the United States Navy from November 23, 1977, until his discharge from service on November 12, 1981. The discharge was categorized as "honorable." Petitioner applied for unemployment compensation benefits which were denied by the Office of Employment Security. Following an appeal, a hearing was held and a referee awarded benefits on the grounds that Petitioner, whose enlistment was due to expire, had sought reenlistment in the Navy but that, because of a recommendation by his commanding officer, he had received

[ 81 Pa. Commw. Page 356]

    a non-waivable reenlistment code of RE-4 which precluded the possibility of reenlistment thus rendering his separation involuntary. On further appeal, the Board reversed the referee. The sole ground advanced for this reversal was that the Navy, on a Pennsylvania Office of Employment Security form ETA 8-43, Request For Military Document/Information for Unemployment Compensation Purposes -- UCX, (formerly designated as form MA 8-43) had indicated that Petitioner's separation was voluntary. Petitioner was therefore deemed ineligible for unemployment benefits pursuant to 5 U.S.C. § 8521 which sets the standards for eligibility for claimants such as Petitioner and which, at the time pertinent to this case, read:

§ 8521. Definitions; application

(a) For the purpose of this subchapter --

(1) "Federal service" means active service, including active duty for training purposes, in the armed forces or the Commissioned Corps of the National Oceanic and Atmospheric Administration which either began after January 31, 1955, or terminated after October 27, 1958, if --

(A) that service was continuous for 365 days or more, or was terminated earlier because of an actual service -- ...


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