IN THE CASE OF:	  

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130017695 


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

2.  The applicant states he worked as a Department of Veterans Affairs (VA) chaplain in both hospital and clinical settings continuously from 12 November 1995 until his VA retirement on 30 June 2012.  At his Army retirement out briefing he was told he would qualify for TERA if he served in a qualifying profession.  He was not told to apply after 6 years of qualifying service.  He was told that he would receive benefits for 20 years at age 62.

3.  The applicant provides:

* an email from the Defense Manpower Data Center (DMDC), dated 
27 June 2012
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 September 1995
* six Standard Forms (SF) 50 (Notification of Personnel Action)
* medical records leading to his VA retirement

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.  His records show he was born on 18 September 1950.  He previously served 2 years on active duty in the U.S. Air Force in an enlisted status.  On                 10 September 1982, he was ordered to active duty in the U.S. Army Reserve (USAR) Chaplain Corps as a first lieutenant.  On 1 May 1983, he was promoted to captain (CPT) and on 2 March 1988, he was accepted for voluntary indefinite status until Regular Army integration unless sooner separated, released, or retired from active duty.  

3.  On 30 September 1995, he retired under the Voluntary Early Retirement Program and  was placed on the Retired List in his retired grade of CPT on 
1 October 1995.  His DD Form 214 confirms he completed 15 years, 1 month, and 18 days of active service.  Item 18 (Remarks) confirms he was retiring under the TERA provisions of the law and that he may qualify for recomputation of retired pay at age 62.

4.  An advisory opinion was obtained on 30 October 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 September 1995.  He had 15 years, 1 months and 18 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 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 DMDC, the agency given responsibility for pay adjustments.

	c.  The applicant provides documentation from the VA Medical Center, Alexandria, LA listing employment from 12 November 1995 to 30 June 2012.  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 12 August 2000.  Only service in a recognized position served between his retirement date of 30 September 1995 and 12 August 2000 count in any retirement adjustment.  Total employment prior to ERQP was 4 years and 9 months with the VA Medical Center.

	d.  Recommend partial relief as a matter of equity by granting the applicant credit for the 4 years and 9 months of qualifying service between his retirement date and his ERQP.

5.  The applicant was provided a copy of this advisory opinion but he did not submit any remarks or rebuttal.

6.  Section 4403 (Temporary Early Retirement Authority) of the National Defense Authorization Act for Fiscal Year 1993 (NDAA FY93) provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through 1995.  The NDAA FY 93 provided that the Secretary of each military department may prescribe regulations and policies regarding the criteria for eligibility for early retirement by reason of eligibility pursuant to this section and for the approval of applications for such retirement. Such criteria may include factors such as grade, years of service, and skill.  For the purposes of this section, the active force drawdown period is the period beginning on the date of the enactment of this Act and ending on 1 October 1995.

7.  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.

8.  DODI 1332.37 (Programs to Encourage Public and Community Service (PAC) Employment) establishes policy, assigns responsibilities, and prescribes 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 to 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 retired on 30 September 1995 with 15 years, 1 month, and 
18 days of active service.

2.  Documentation he provided shows he was employed by the VA from 
12 November 1995 to 30 June 2012 and his employment meets the guidelines in DODI 1332.37.  However, his ERQP is 12 August 2000 and only service at the VA from the date of his retirement, 30 September 1995 to his ERQP, 12 August 2000, counts in any retirement adjustment.

3.  Therefore, as a matter of equity, his records should be corrected to show qualifying credit for retirement of 4 years and 9 months from his retirement date to his ERQP.  His retirement pay from age 62 should be adjusted as a result of this correction.  

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 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 4 years and 9 months of qualifying service between his retirement date (30 September 1995) and his ERQP (12 August 2000); and 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 any adjustment in excess of the above.




      _______ _   __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)                                         AR20130017695



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ABCMR Record of Proceedings (cont)                                         AR20130017695



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