IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120000228 


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 service credit during the Enhanced Retirement Qualification Period (ERQP) under the provisions of the 1995 Temporary Early Retirement Authority (TERA).  

2.  The applicant states he immediately began work as a State Corrections Officer in the State of Washington which fulfilled the Public and Community Service (PACS) obligation needed to qualify for service credit during the ERQP.  He claims the State did not submit the necessary forms to register for the program.  

3.  The applicant provides a DD Form 2581-1 (PACS Organization Validation) and employment history in support of his request.  

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 record shows on 31 May 1995, the applicant was honorably retired, in the grade of sergeant first class/E-7, by reason of voluntary early retirement.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed a total of 16 years, 6 months, and 
13 days of active military service.  Item 18 (Remarks) confirms the applicant was retiring under the TERA provisions of the law and that he could qualify for recomputation of retired pay at age 62.  

3.  The applicant provides a DD Form 2581-1 in which his employer, the Washington State Criminal Justice Training Commission, confirms he served in a law enforcement/public safety position.  An employment history was also provided that confirms he continuously worked in the Washington State corrections system from 2 June 1995 to 31 August 2004.  

4.  In connection with the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, Chief, Incentives and Budget Branch, Enlisted Accessions Division.  This official recommends the applicant be granted relief as a matter of equity.  He indicates the applicant provides documentation from the Washington State Department of Retirement Services verifying he in fact served in continuous employment with the State of Washington correctional system from 2 June 1995 to 31 August 2004.  He verifies that this employment meets the guidelines laid out in the applicable TERA statutes.  He further confirms the applicant’s ERQP (date he would have reached 20 years service) is 28 November 1998, and that only service between his retirement date of 31 May 1995 and 28 November 1998 count in any service retirement adjustment.  He finally states the applicant should be granted service credit for the 3 years, 5 months, and 27 days of qualifying service between his retirement date and his ERQP.  On 19 December 2012, the applicant concurred with the G-1 findings and recommendation.  

5.  Title 10 of the U.S. Code, Section 3914 provides the legal authority for the retirement of enlisted members between 20 and 30 years.  During the period
23 October 1992 to 1 October 1995, TERA provisions were added that allowed the retirement of enlisted personnel with at least 15 but less than 20 years.  Under the TERA, the PACS program was created and allowed TERA retirees to apply some post-retirement employment (with certain pre-approved employers) towards their military retirement starting at age 62.  PACS credit was authorized up to the time the member would have attained 20 years of military service had they remained on active duty.  This period was called the ERQP.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for service credit and adjustment of retired pay under ERQP provisions has been carefully considered and found to have merit.  

2.  Although the applicant and his employer did not satisfy all of the registration requirements of the program, given the applicant’s employment with the Washington State correctional system between 2 June 1995 and 28 November 1998 met all the program requirements and his employer has now provided the necessary verification, it would be appropriate and serve the interest of equity to correct his record to show he qualified for an adjustment to his retired pay under the TERA ERQP provisions of the law.  Therefore, it would be appropriate to recalculate his retired pay to credit him with 3 years, 5 months, and 27 days of additional service and to adjust his retired pay accordingly at age 62.  

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 to show 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 3 years, 
5 months, and 27 days of additional service; 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)                                         AR20120000228



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ABCMR Record of Proceedings (cont)                                         AR20120000228



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