IN THE CASE OF:
BOARD DATE: 29 January 2013
DOCKET NUMBER: AR20120015884
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) under the 1995 Temporary Early Retirement Authority (TERA) provisions.
2. The applicant states he meets the requirements for the benefit.
3. The applicant provides a self-authored statement and the five enclosures identified therein 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. On 30 June 1995, the applicant was retired in the rank/grade of sergeant first class (SFC)/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 15 years, 6 months, and 14 days of creditable active 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 an Office of Personnel Management (OPM) letter, dated 28 December 2011, that verifies he completed three periods of employment with the Federal Government subsequent to his retirement from the Army. OPM verifies 5 years, 6 months, and 14 days of Federal employment, of which 4 years and 1 month was performed prior to the applicant's ERQP.
4. In connection with the processing of this case, on 13 December 2012, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, Chief, Incentives and Budget Branch, Enlisted Accessions Division. The advisory official recommends the applicant be granted partial relief as a matter of equity. The official indicates the applicant provides OPM verification of 5 years,
6 months, and 14 days of qualifying Federal employment, of which 4 years and
1 month was performed prior to the applicant's ERQP (date he would have reached 20 years service).
5. A copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On
21 December 2012, the applicant concurred with the G-1 findings and recommendation.
6. Title 10, U.S. Code, section 3914 provides the legal authority for the retirement of enlisted personnel 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 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 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 partial merit.
2. The applicant and his employer did not satisfy all registration requirements of the program; however, given the applicant's employment with the Federal Government met all the program requirements and OPM has now provided the necessary verification, it would be appropriate and serve the interest of equity to correct the applicant's record to show he qualified for an adjustment to his retired pay under the TERA ERQP provisions of the law.
3. Although OPM verified the applicant's 5 years, 6 months, and 14 days of post- Federal employment, only 4 years and 1 month was performed prior to the applicant's ERQP.
4. In view of the foregoing, it would be appropriate at this time to recalculate his retired pay to credit him with 4 years and 1 month 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 by:
a. showing he qualified for an adjustment to his retired pay under the TERA ERQP provisions of the law;
b. recalculating his retired pay to credit him with 4 years and 1 month of additional service; and
c. adjusting his retired pay accordingly 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 crediting the applicant with any additional service beyond the additional 4 years and 1 month being added.
_______ _ 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) AR20120015884
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