Informal Opinion No. ( 1989 )

James M. Nesper, Esq. Town Attorney, Amherst

You have asked whether a volunteer fire company may give credit to a volunteer firefighter for military service beginning after 1975 for purposes of determining the volunteer's qualifications for "exempt" status.

Generally, an exempt volunteer firefighter is a member of a volunteer fire company, duly authorized under the laws of the State of New York, who has at any time after reaching 18 years of age actually performed service in the territory protected by his company for a period of five years (General Municipal Law, § 200). In the case of certain defined military service, however, State law requires that the period of such service be included as part of the period of fire service necessary to qualify a person as an exempt volunteer firefighter.

This credit for military service applies to a volunteer firefighter who, on or after July 1, 1966, enters active duty in the Armed Forces of the United States during any war between the United States and any other nation or during the period beginning with the commencement of military and naval preparedness in 1940 and ending July 1, 1975 (id., § 200-c[1]). Thus, service after July 1, 1975 in the Armed Forces of the United States, when there is no war between the United States and any other nation, does not qualify a volunteer firefighter for the statutory benefits in determining exempt status.

We conclude that only certain military service by a volunteer firefighter may be credited as part of the length of time needed to gain "exempt" status.