IN THE CASE OF:	   

		BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20130011229 


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) and adjustment of his retired pay under the provisions of the Temporary Early Retirement Authority (TERA).

2.  The applicant states he was told he could submit his request prior to age 62.  His is submitting a request for Public and Community Service as a TERA retiree. This request is to adjust the years of service toward his military retirement starting at age 62.  The request was submitted after 2008 because he was instructed that the period of community service or public service had to be prior to his normal retirement date but the request only needed to be processed prior to age 62.  He was unaware of the program expiration date. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2676 (Application for Public or Community Service Employment)
* Retirement orders
* DA Form 2-1 (Personnel Qualification Record)

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's records show he was born in July 1954.  

3.  He enlisted in the Regular Army (RA) on 16 September 1981 and he held an administrative military occupational specialty.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.

4.  He retired on 30 June 1998 under the Voluntary Early Retirement program and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on     1 July 1998.  His DD Form 214 shows he completed 16 years, 9 months, and 15 days of 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.   

5.  He provides a DD Form 2676, dated 17 April 2013, wherein he provides certification of full-time public and community service employment with the Killeen Independent School District from 4 August 1999 to 19 April 2013.  

6.  An advisory opinion was obtained on 17 July 2013 from the Office of the Deputy Chief of Staff, G-1, in the processing of this case.  A G-1 official stated:

	a.  The applicant retired from the Army under TERA on 30 June 1998.  He had 16 years, 9 months and 15 days of service when he retired.  The TERA was offered to Soldiers with at least 15 years of service. TERA permitted Soldiers to obtain employment with a public service (federal, state or local government) or a recognized community service organization for a period up to the date the member would have attained 20 years of service known as the Enhanced Retirement Qualification Period (ERQP).  Such retirees received 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 Defense Manpower Data Center (DMDC) until August 2008.

	b.  Army policy reflects Department of Defense policy that such applications should have been submitted within one year of the ERQP.  TERA participants were given full instructions and application deadlines prior to separation.  The applicant did not apply within specified guidelines and cut off dates until after the ERQP expiration date established by Defense Management Data Center, the agency given responsibility for pay adjustments.

	c.  The applicant provides documentation from Killeen Public Schools listing employment from 4 August 1999 to 19 April 2013.  The employment meets the guidelines laid out in applicable statutes under Title 10, U.S. Code, Section 1143a (c) and Department of Defense Instruction (DODI) 1332.37.  The applicant's ERQP (date he would have attained 20 years service) is 15 September 2001.  Only service as a teacher served between his retirement date of 30 June 1998 and 15 September 2001 count in any retirement adjustment.  

	d.  No documentation was provided that verifies that the organization that employed him subsequent to his separation complied with the program's registration requirements.  The applicant shows employment with the Killeen Public Schools from 4 August 1999 to 19 April 2013.  Total employment prior to ERQP was 2 years, 1 month, 12 days with Killeen Public Schools.

	e.  Recommend partial relief as a matter of equity by granting the applicant credit for the 2 years, 1 month, 12 days of qualifying service between his retirement date and his ERQP.

7.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

8.  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 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.

9.  DODI 1332.37 (Programs to Encourage Public and Community Service (PAC) Employment) establishes policy, assigning responsibilities, and prescribing procedures to encourage and assist separating Service members, Service members retiring with 20 or more years of service, DOD civilian personnel leaving the Government, and spouses to enter public and community service employment; and encourage and assist Service members requesting retirement with fewer than 20 years of service to register for public and community service employment.

	a.  Section 4.2.2.  In order to have their military retired pay and Survivor Benefit Plan base amount (if applicable) recomputed in accordance with DODI 1340.19 (reference (c)), early retirees must be employed with a DOD-registered public and community service organization that provides the services listed in enclosure 1, subparagraphs E1.1.4.1. through E1.1.4.12., or that coordinates the provision of services listed in enclosure 1, subparagraphs E1.1.4.1. through E1.1.4.12. 

	b.  Section 6.3.1. Registering for PACS is a requirement for consummation of their early retirement under Public Law 102-484, Section 4403 (reference (a)) or Section 561 of Public Law 103-160 (reference (b)).

	c.  Section 6.3.2. Early retirees must provide a copy of their confirmation Defense Outplacement Referral System (DORS) mini-resume to their servicing military personnel office for filing in their Service record before their final retirement processing.

	d.  Section 6.3.5.  DOD-approved PACS employment qualifies the Service member who is retired under Public Law 102-484, Section 4403 (reference (a)) or Public Law 103-160 (reference (b)) for increased retired pay effective on the first day of the first month beginning after the date on which the member or former member attains 62 years of age.  The former service member must have worked in DOD-approved PACS employment between the date of early retirement and the date in which he or she would have attained 20 years of creditable service for computing retired pay, and have retired on or after 23 October 1992 and before 1 October 1999.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 16 September 1981 to 30 June 1998.  He retired early with 16 years, 9 months, and 15 days of active service.  

2.  He provides documentation from Killeen Public Schools listing his employment from 4 August 1999 to 19 April 2013.  The employment meets the guidelines in DODI 1332.37.  The applicant's ERQP, i.e., the date he would have attained 20 years service, is 15 September 2001.  Only service as a teacher served between his retirement date of 30 June 1998 and 15 September 2001 count in any retirement adjustment.  

3.  However, there is no documentation provided by the applicant that verifies that the organization that employed him subsequent to his separation complied with the program's registration requirements.  He shows employment with the Killeen Public Schools from 4 August 1999 to 19 April 2013.  The total employment prior to his ERQP was 2 years, 1 month, 12 days with Killeen Public Schools.

4.  Therefore, as a matter of equity, the applicant should have his records corrected to show credit for the 2 years, 1 month, 12 days of qualifying service between his retirement date and his ERQP.

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 showing 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 2 years, 1 month, 12 days of qualifying service between his retirement date (1 July 1998) and his ERQP (15 September 2001); 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)                                         AR20130011229





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ABCMR Record of Proceedings (cont)                                         AR20130011229



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