IN THE CASE OF:  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120008438 


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 Temporary Early Retirement Authority (TERA) provisions.

2.  The applicant states that he meets the requirements for the benefit.  

   a.  He served in the U.S. Army under the Active Guard Reserve program.  He was discharged in 1996.

   b.  He became a teacher associated with the "Troops to Teachers" program in a full-time teaching position in the Chicago Public Schools, Chicago, IL.

   c.  Based on the findings of a Department of Defense (DOD) Inspector's General report on reprisals that took place as a result of his activities as a "Whistle Blower," the Army Board for Correction of Military Records (ABCMR) voided his discharge and approved his retirement under the TERA.

   d.  He was processed for retirement at Fort Leonard Wood, MO, but he was not made aware of the benefit of earning credit towards a 20-year retirement for teaching.

   e.  He recently learned of the statute that provides for recomputation of retired pay at age 62.  He adds that he has been a public school teacher for more than 15 years, he participated in the "Troops to Teachers" program, and he is entitled to five (5) years of additional creditable service for retirement.
   f.  His efforts to obtain the additional retirement credit through the Office of the Secretary of Defense (OSD), Defense Manpower Data Center (DMDC) have been unsuccessful.

3.  The applicant provides a copy of a DOD letter, dated 15 February 1994; a letter to the Commander, U.S. Army Human Resources Command (USA HRC), Fort Knox, KY, dated 31 August 2011; OSD DMDC message, dated 11 October 2011; and his "Troops to Teachers" Employment History, dated 28 October 2011.

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 8 June 1954.

3.  He had prior enlisted service in the Regular Army (beginning 1 March 1972) and in the Army National Guard (ARNG) (beginning 7 September 1977) with several breaks in his military service with his last break in service ending on
13 January 1983.

4.  He enlisted in the Illinois ARNG (ILARNG) on 14 January 1983.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 July 1986.

5.  ABCMR Docket Number AC97-06841, dated 15 April 1998, and ABCMR Docket Number AC97-06841A (Supplemental), dated 17 June 1998, corrected the applicant's records to show his 6 October 1994 release from active duty  was voided; that he was reinstated to active duty effective 7 October 1994; that he continued to serve on active duty in the pay grade of E-6 (with entitlement to all back pay and allowances); that his 28 August 1995 discharge from the ILARNG was voided; and that he retired at the end of the month in which he would have attained 15 years of active Federal service.

6.  State of Illinois, Springfield, IL, Orders 116-112, dated 17 June 1998, released the applicant from active duty on 31 July 1996 and placed him on the retired list, in the retired grade of rank of SSG/E-6, effective 1 August 1996.  The orders show:

* Voluntary retirement:  15 years, 1 month, 2 days
* Section 1405 Service:  15 years, 3 months, 22 days
* Basic Pay:  17 years, 1 month, 12 days

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 15 years, 1 month, and 2 days of active military service.  Item 18 (Remarks) shows, in part, "Member is retiring as provided by section 4403 of the Fiscal Year 1993 National Defense Authorization Act (Public Law 102-484) and may qualify for a recomputation of retired pay at age 62 (section 4464 of same law)."

8.  In support of his application the applicant provides the following documents:

   a.   DOD, Defense Activity for Non-Traditional Education Support, Pensacola, FL, letter, dated 15 February 1994, that shows the Chief, Troops to Teachers, confirmed the applicant was accepted for participation in the DOD "Troops to Teachers" program;

   b.  letter from the applicant to the Commander, USA HRC, Fort Knox, KY, dated 31 August 2011, requesting assistance in obtaining certification of public and community service that may be credited to his 15-year early retirement when he reaches age 62;

   c.  OSD DMDC message, dated 11 October 2011, that informed the applicant that the DMDC no longer reviews new applications from TERA retirees for enhanced retirement credit; and

   d.  "Troops to Teachers" Employment History, dated 28 October 2011, that verifies the applicant's employment as a teacher with the Chicago Public Schools, Chicago, IL, during the period 6 October 1994 through 23 June 1995 (for school year 1994) and from 2 November 1998 through 30 June 2009 (for school years 1998 through 2008).

9.  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 partial relief as a matter of equity.

   a.  The advisory official indicates that retirees receive 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 DMDC until August 2008 (this date was 1 year after the last 1993 TERA participant's ERQP lapsed).  Applications should have been submitted within 1 year of the ERQP.

   b.  The applicant did not apply within the specified guidelines and cut-off dates until after the established ERQP expiration date.

   c.  The date the applicant would have attained 20 years of service was         19 June 2001.  Only service as a teacher served between his retirement date of 31 July 1996 and 19 June 2001 counts in any retirement adjustment.  Thus, his service as a teacher during school year 1994 does not qualify.

   d.  The advisory official indicates the applicant provides documentation from the Chicago Public Schools verifying his employment as a teacher under the "Troops to Teachers" program.  The employment meets the guidelines specified in the applicable statutes under U.S. Code, Title 10, section 1143a(c) and DOD Instruction 1332.37 (Program to Encourage Public and Community Service Employment).

   e.  The documentation shows continuous qualifying employment beginning
2 November 1998 through 12 June 2001 for a total employment prior to ERQP of 2 years, 7 months, and 11 days.

10. On 28 December 2012, the applicant was provided a copy of the G-1 advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has not provided a response.

11.  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 provided that allowed the retirement of enlisted personnel with at least 15 but less than 20 years.  Under the TERA, the Public and Community Service (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 met 


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 an adjustment of his retired pay under ERQP provisions of the law has been carefully considered and found to have partial merit.  

2.  Although the applicant (and his employer) did not satisfy all registration requirements of the program, given that the applicant’s employment with Chicago Public Schools met all the program requirements and the applicant 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 of his retired pay under TERA ERQP provisions of the law.  Therefore, it would be appropriate to recalculate his retired pay to credit him with 2 years, 7 months, and 11 days of additional service and to adjust his retired pay accordingly at age 62.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show he qualified for an adjustment to his retired pay under TERA ERQP provisions of the law; by recalculating his retired pay to credit him with 2 years, 7 months, and 11 days of additional service; and by providing him the additional retired pay due based on this adjustment at age 62.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to credit for any additional service in excess of 2 years, 7 months, and 11 days.




      _______ _  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)                                         AR20120008438



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ABCMR Record of Proceedings (cont)                                         AR20120008438



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