IN THE CASE OF: BOARD DATE: 14 May 2015 DOCKET NUMBER: AR20140012258 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, service credit during the Enhanced Retirement Qualification Period (ERQP) and adjustment of his retired pay under the provisions of the Temporary Early Retirement Authority (TERA). 2. The applicant states, in effect, he was retired during the Clinton drawdown under the TERA program. When he retired he had 19 years and was apportioned 45 percent retirement pay. He stated he was told that this percentage could be upgraded to 50 percent since he worked in the public service arena as a public school teacher for the last 20 years. 3. The applicant provides the following as evidence: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 2676 (Validation of Public or Community Service Employment) for the Arlington Public Schools, Arlington, VA * DD Form 2676 for the Prince William County Public Schools, Manassas, VA * DD Form 2581 (Operation Transition Employer Registration) for the Arlington Public Schools, Arlington, VA * DD Form 2581-1 (Public and Community Service Organization Validation) for the Arlington Public Schools, Arlington, VA * DD Form 2581-1 for the Prince William County Public Schools, Manassas, VA CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's records show he was born in March 1952. 3. His records show that he was appointed as a commissioned officer of the Regular Army, as a second lieutenant, on 15 December 1975 and he entered active duty on 30 December 1975. He was promoted to major (MAJ) in the Regular Army on 1 March 1987 and held military occupational specialty (MOS) 91A (Ordnance Officer). 4. Orders S26-36, issued by U.S. Total Army Personnel Command, Alexandria, VA on 10 February 1994, ordered his retirement from active service effective 30 June 1994 and placement on the retired list on 1 July 1994. The special instructions on these orders, in part, stated "You must be registered with Public and Community Service (PACS)." 5. His DD Form 214 confirms he was retired on 30 June 1994 by reason of voluntary early retirement, after completing 18 years, 6 months, and 1 day of net active service. 6. Had the applicant remained on active duty, he would have completed 20 years of active service on 30 December 1995. 7. He provides a DD Form 2676, dated 22 May 2014, wherein he provides certification of full-time public and community service employment with the Arlington Public Schools from 29 August 1994 to 23 June 2003. He provides a DD Form 2581 and a DD Form 2581-1 registering and validating, respectively, an agreement to public service with the Arlington Public Schools. 8. He provides a DD Form 2676, dated 28 May 2014, wherein he provides certification of full-time public and community service employment with the Prince William County Schools from 14 August 2003 to 18 June 2014. He provides a DD Form 2581-1 validating an agreement to public service with the Prince William County Schools. 9. On 10 March 2015, in the processing of this case an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army. This official stated that: a. The applicant requests an adjustment of retirement pay under the provisions of the TERA. The TERA was offered to Soldiers with at least 15 years of service. TERA permitted Soldiers to obtain employment with a public service (federal, state or local government) or a recognized community service organization for a period up to the date the member would have attained 20 years of service known as the ERQP. Such retirees received service credit for employment with qualified employers and an adjustment in their retired pay at age 62 as long as they applied for adjusted retirement benefits with the Defense Manpower Data Center (DMDC) until August 2008. b. Army policy reflects Department of Defense policy that such applications should have been submitted within one year of the ERQP. TERA participants were given full instructions and application deadlines prior to separation. The applicant did not apply within specified guidelines and cut off dates until after the ERQP expiration date established by Defense Management Data Center, the agency given responsibility for pay adjustments. c. The applicant retired from the Army under TERA on 30 June 1994. He had 18 years, 6 months, and 1 day of active federal service when he retired. Based on the required 1 year and 6 months to reach 20 years of service, the applicant's ERQP is calculated as 31 December 1995. d. The applicant provided documentation from the Arlington Public School District listing employment from 29 August 1994 to 23 June 2003 for a total of 9 years as well as documentation from the Prince William County School District listing employment from 14 August 2003 to 18 June 2014 for a total of 11 years. The employment meets the guidelines laid out in applicable statutes under 10 U.S. Code, section 1143a(c) and Department of Defense Instruction (DODI) 1332.37. e. Though all of the applicant's employment qualifies as legitimate, only the employment performed between the applicant's retirement date and his ERQP can be considered. The only period of employment that meets the criteria is the 16 months with the Arlington Public School District from 29 August 1994 to his ERQP date of 31 December 1995. f. Recommend approval of applicant's request to adjust his retirement pay at age 62 considering the period of employment that was deemed qualifying and occurred between the applicant's retirement date and his ERQP. 10. The applicant was provided with a copy of this advisory opinion; however, he did not respond. 11. The applicant turned 62 in March 2014 and is currently age 63. 12. TERA was enacted by Congress on 23 October 1992, in the National Defense Authorization Act of Fiscal Year 1992, to assist in the military draw-down of forces, to permit selected military members to retire early between 15 and 20 years of service and accrue additional military retirement points through service in military Reserve Components or employment in qualifying public or community service organizations – called the PACS program. It authorized credit up to the time the member would have attained 20 years of military service had they remained on active duty. The Secretaries or the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the service. Retirement under this program was not a right, it is granted on an individual basis according to the requirements of the service. The TERA program ended on 30 September 2001. 13. DODI 1332.37 (Programs to Encourage Public and Community Service (PACS) Employment) establishes policy, assigns responsibilities, and prescribes procedures to encourage and assist separating Service members, Service members retiring with 20 or more years of service, DOD civilian personnel leaving the Government, and spouses to enter public and community service employment; and encourage and assist Service members requesting retirement with fewer than 20 years of service to register for public and community service employment. a. Section 4.2.2. In order to have their military retired pay and Survivor Benefit Plan base amount (if applicable) recomputed in accordance with DODI 1340.19 (reference (c)), early retirees must be employed with a DOD-registered public and community service organization that provides the services listed in enclosure 1, subparagraphs E1.1.4.1. through E1.1.4.12., or that coordinates the provision of services listed in enclosure 1, subparagraphs E1.1.4.1. through E1.1.4.12. b. Section 6.3.1. Registering for PACS is a requirement for consummation of their early retirement under Public Law 102-484, Section 4403 (reference (a)) or Section 561 of Public Law 103-160 (reference (b)). c. Section 6.3.2. Early retirees must provide a copy of their confirmation Defense Outplacement Referral System (DORS) mini-resume to their servicing military personnel office for filing in their Service record before their final retirement processing. d. Section 6.3.5. DOD-approved PACS employment qualifies the Service member who is retired under Public Law 102-484, Section 4403 (reference (a)) or Public Law 103-160 (reference (b)) for increased retired pay effective on the first day of the first month beginning after the date on which the member or former member attains 62 years of age. The former service member must have worked in DOD-approved PACS employment between the date of early retirement and the date in which he or she would have attained 20 years of creditable service for computing retired pay, and have retired on or after 23 October 1992 and before 1 October 1999. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for service credit during the Enhanced Retirement Qualification Period (ERQP) and adjustment of his retired pay under the provisions of the Temporary Early Retirement Authority (TERA) was carefully considered and has merit. 2. The applicant served on active duty from 30 December 1975 to 30 June 1994. He retired early with 18 years, 6 months, and 1 day of net active service. 3. He provides documentation from the Arlington Public School District listing his employment from 29 August 1994 to 23 June 2003. The employment meets the guidelines in DODI 1332.37. He provides additional legitimate qualifying employment; however, only the employment between his retirement date and his ERQP can be considered. The only period of employment that meets the criteria is the 16 months with the Arlington Public School District from 29 August 1994 to his ERQP date of 31 December 1995. 4. Therefore, as a matter of equity, the applicant should have his records corrected to show credit for the 1 year and 4 months of qualifying service between his retirement date and his ERQP of 31 December 1995. BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he qualified for an adjustment to his retired pay under the TERA ERQP provisions of the law; by recalculating his retired pay to credit him with 1 year and 4 months of qualifying service between his retirement date (30 June 1994) and his ERQP (31 December 1995); and adjusting his retired pay accordingly at age 62. __________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130011229 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140012258 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1