IN THE CASE OF:
BOARD DATE: 31 January 2013
DOCKET NUMBER: AR20120002721
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 recomputation of his retired pay.
2. The applicant states that he retired under the Temporary Early Retirement Authority (TERA) Public and Community Service (PACS) Program and believes that he qualifies for recomputation of his retired pay because he was employed as a Junior Reserve Officers Training Corps (JROTC) instructor by the Greene County Board of Education from 13 July 1994 to the present. He also states that he was not properly informed of the procedures for applying for recomputation.
3. The applicant provides copies of a letter verifying his employment, email from the Defense Manpower Data Center (DMDC), a page from the Department of Defense Financial Management Regulation, an approved retirement memorandum, a mini-résumé, retirement orders, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants 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 in 1956 and he enlisted in the Regular Army on
20 February 1976. He completed his training and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 May 1989.
3. On 26 October 1993, the Total Army Personnel Command approved his request for early retirement under the Fiscal Year 1994 TERA PACS program.
4. Accordingly, he was retired on 31 August 1994 and he was transferred to the Retired List effective 1 September 1994. He had served 18 years, 10 months, and 11 days of active service.
5. In the processing of this case a staff advisory opinion was obtained from the Officer of the deputy Chief of Staff, G1 which opines, in effect, that although the applicant did not apply for recomputation by August 2008, which was 1 year after the last 1993 TERA participants Enhanced Retirement Qualification Period (ERQP) would have attained 20 years of service, as a matter of equity, his request should be approved and he should be granted 1 year, 1 month, and
19 days of active service for retirement and his retired pay should be adjusted at age 62. The advisory opinion was provided to the applicant for comment and to date, no response has been received by the staff of the Board.
6. 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 applicants contention that he was not properly informed of the timeframe and procedures for applying for an adjustment/recomputation of his Retire Pay has been noted and appears to have merit.
2. It is not reasonable that an individual would accept early retirement into a program that would afford him full retirement (20 years) based on his civilian employment in the PACS program and not apply for such adjustments when required had he been properly informed of the requirement to do so.
3. Accordingly, as a matter of equity, his service should be adjusted to show that he served 20 years of active service (an additional credit of 1 year, 1 month, and 19 days) for retired pay purposes 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 1 year,
1 month, and 19 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.
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