(a) In accordance with §401(a)(37) of the Internal Revenue Code (§104(a) of the HEART Act), the survivors of a member who dies after December 31, 2006, while performing qualified military service under the USERRA, are entitled to any additional benefits (other than benefit accruals relating to the period of qualified military service) that would have been provided under the employer's plan had the member resumed employment and then terminated employment on account of death. (b) A deceased member described above will receive credited service for the period of the deceased member's qualified military service for purposes of determining eligibility for a Survivor Annuity in accordance with §844.407 of the Act (but such period of qualified military service will not increase the deceased member's accrued benefit used to determine the amount of any survivor annuity for which the deceased member's survivors may or may not be eligible). (c) A deceased member described above will be included in the coverage of any Member Optional Group Term Life Program elected by the employer under §842.004 of the Act, with the death benefit based on the annualized regular rate of pay or regular salary paid the member in accordance with §844.503(c) of the Act during the most recent pay period of active employment prior to the commencement of qualified military service. (d) The System does not adopt the permissive provisions of §104(b) of the HEART Act, as added by §414(u)(9) of the Internal Revenue Code relating to benefit accruals. However, pursuant to the authority granted the Board by §845.102 of the Act, and in conformance with 26 CFR §1.401(a)(4)-11(d)(3) relating to rules for imputing military service and periods of disability as credited service, any member who, after December 31, 2006, becomes disabled (based on the criteria set forth in subparagraphs (A) and (B) of §844.303(b)(2) of the Act) while performing the member's qualified military service under the USERRA, is entitled to credited service in the retirement system for the period of qualified military service under the USERRA. However, such period of qualified military service will not increase the disabled member's accrued benefit used to determine the amount of any service, disability or survivor annuity for which the member or the member's survivors may or may not become eligible. The disabled member will be included in the coverage of any Member Optional Group Term Life program elected by the employer under §842.004 of the Act and not terminated and will, subject to §844.502 of the Act, be eligible to receive extended coverage during the two years following the onset of disability, provided that sufficient evidence of the member's continuous disability and its date of onset is submitted to the retirement system on application for a death benefit based on the disabled member's compensation described in subsection (c) of this section. (e) In accordance with §414(u)(12) of the Internal Revenue Code (§105(b) of the HEART Act), and effective as of January 1, 2009, amounts received by a member as a "differential wage payment" (within the meaning of the Internal Revenue Code) for any period that such member is not performing services for the employer by reason of qualified military service will be treated as "compensation" for purposes of benefit accruals under the Act and will be treated as compensation for purposes of the Internal Revenue Code to the extent so required.
Source Note: The provisions of this §105.41 adopted to be effective October 10, 2011, 36 TexReg 6769