IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20120000707 


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 his retired pay be increased to 50 percent effective the date he retired and he be paid all back pay as a result.

2.  The applicant states he accepted an early retirement and retired from the Army in June 1994.  When he was out-processing, he was informed that if he went to work in the shortage areas of law enforcement or human services his retirement would be at 50 percent instead of 47.50 percent.  He has worked in these areas since he retired.  Over the years, he has been in contact with the Defense Finance and Accounting Service (DFAS) numerous times and has not been able to get this resolved.  He knows that the Defense Manpower Data Center (DMDC) that was assigned to handle these issues shut down and he fell victim to this.

3.  The applicant provides a memorandum and a letter.

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 was born on 6 June 1956.

3.  Having had prior active service, the applicant's records show that he enlisted in the Regular Army on 21 November 1978 and he held military occupational specialty (MOS) 95B (Military Police).  He was promoted to the rank of sergeant first class (SFC) on 1 January 1993.  

4.  He applied for and was approved for voluntary early retirement under the fiscal year 1994 (FY 94) Early Retirement Program.  

5.  An 8 November 1993 memorandum from the U.S. Total Army Personnel Command to the applicant’s major subordinate commander stated that, in compliance with Public Law 102-484, he must receive the required preseparation counseling and must be listed with the Public and Community Service (PACS).  The servicing Army Career and Alumni Program (ACAP) or Army Community Service Center if no ACAP was available would provide the required counseling and assistance in registering for PACS.

6.  On 31 May 1994, he was honorably retired by in the rank of SFC by reason of voluntary early retirement and transferred to the U.S. Army Reserve Control Group (Retired).  He completed 15 years, 6 months, 10 days of creditable active service during this period of service; had 2 years, 11 months, and 21 days of prior active service; for a total of 18 years, 6 months, and 9 days of creditable active service for retirement pay.

7.  Had the applicant remained on active duty, he would have completed 20 years of active service on 21 November 1995.

8.  The applicant provides a memorandum from himself to DFAS, dated 4 November 2011, wherein he stated he chose the early retirement program with 47.50 percent for retired pay which was to be increased to 50 percent if he worked in a critical shortage field.  He stated from early July 1994 through June 1999 he worked as a correctional officer for the State of North Carolina and from July 1999 to April 2004 he worked as a residential counselor in group homes for at-risk children.  He further stated, this accumulated to 205 months and he requested his retired pay be increased to 50 percent and he be reimbursed for the additional pay he should have received the past 205 months.

9.  The applicant also provides a letter he received from DFAS, dated 7 December 2011, wherein a DFAS official stated that DMDC was appointed to oversee the community service credit.  The official further stated that members were advised at the time of retirement of the option to perform community service and to contact DMDC to have the service recorded.  DMDC would then notify DFAS of the additional service and DFAS had not been notified of any additional service for the applicant.  The official also stated since DMDC no longer existed they were enclosing a DD Form 149 (Application for the Correction of Military Record) for a review to correct his military record.

10.  Department of the Army Military Personnel Message 93-164, dated 10 April 1993, prescribes eligibility requirements and application procedures for early retirement for enlisted Soldiers under the FY 94 Early Retirement Program, and states that personnel approved for early retirement will receive the same benefits as individuals with 20 or more years of service except their retirement pay will be reduced.  The temporary early retirement authority (TERA) would be used to retire members whose skills and MOS were excess to the Army’s short term and long term needs.  Individuals approved for early retirement had to depart active duty no later than 31 August 1994 

11.  The PACS Program 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 met 20 years of military service had they remained on active duty.  This period was called the Enhanced Retirement Qualification Period (ERQP).  Retirees were required to document their employment using a DD Form 2676 (Validation of Public or Community Service Employment) and submitting the form to the DMDC.  The timeline to submit PACS applications to the DMDC ended one year to the day after the member’s ERQP expired.  DMDC is no longer authorized to accept any new PACS applications.  The program officially expired in August 2008 (one year after the last official TERA recipient’s ERQP expired). 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant retired under the provisions of the FY94 Early Retirement Program on 31 May 1994.  The details of the Early Retirement Program, its requirements and benefits, were heavily briefed to Soldiers planning to retire under the program during the period it was authorized.

2.  In accordance with the PACS Program, the applicant was allowed to apply post-retirement employment with certain pre-approved employers up until his ERQP of 21 November 1995 towards his military retirement pay starting at age 62.  He will turn 62 years of age on 6 June 2018.  PACS applications were to be submitted to DMDC up to one year after the Soldier's ERQO, which in his case was 21 November 1996.

3.  There is no evidence and the applicant has not provided any evidence that shows he submitted an application to DMDC by 21 November 1996 for post-retirement employment or that he was employed by a pre-approved employer between 1 June 1994 and 21 November 1995.

4.  In addition, although a DFAS official indicated the DMDC no longer exists, this information is erroneous; it was the PACS Program that officially expired in August 2008.

5.  In view of the foregoing, there is insufficient evidence to show he is entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __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)                                         AR20120000707





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ABCMR Record of Proceedings (cont)                                         AR20120000707



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