STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MAURICE DUNN, Employe

DISTRIBUTION SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200497EC

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employe.

Wis. Stat. § 108.09(6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wis. Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on May 17, 2000, the last day on which a timely petition for review could have been filed was June 7, 2000. The petition for review was postmarked June 19, 2000. It was received June 21, 2000.

The employe explained that he was away at annual training with the United States Army from May 15 until June 9, 2000, by which point the deadline to file a petition had already elapsed. Under the Soldiers' and Sailors' Civil Relief Act (hereinafter "SSCRA"), statutes of limitations are tolled during any period of military service. See 50 USCS § 525. The term "military service," as defined in the SSCRA, refers to federal service on active duty as well as "training or education under the supervision of the United States preliminary to induction into the military service." 50 USCS § 511(1). In this case, the employe was at annual United States Army training during the time period at issue. He was, therefore, engaged in military service when the appeal tribunal decision was issued. Applying the SSCRA, the 21-day appeal period did not begin to run until after the employe's military service was complete, rendering his June 19 petition timely.

The commission therefore finds that the petition for commission review was timely, within the meaning of Wis. Stat. § 108.09(6)(a). The employe's petition is accepted.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusions in that decision as its own.

DECISION

The petition for review is accepted. The decision of the appeal tribunal is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 4 of 2000, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay
the sum of $1,632 to the Unemployment Fund. The initial Benefit Computation (Form UCB-700), issued on February 16, 2000 is set aside.

Dated and mailed July 28, 2000
dunnma2.upr : 164 : 1   PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employe's petition contains no argument with respect to the merits of his case, and the commission has no specific indication as to why the employe believes he should prevail based upon this record. Notwithstanding this, the commission has reviewed the hearing record in order to determine whether the appeal tribunal's findings of fact and conclusions of law are supported. Based upon its independent review of the record, the commission agrees with the factual findings made by the appeal tribunal and with its legal conclusion that the employe was discharged for actions on his part which amounted to misconduct, within the meaning of the law. Accordingly, the appeal tribunal decision is affirmed.

cc: ATTORNEY STEVE GOFF
BYE GOFF & ROHDE LTD

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