IN THE CASE OF:	   

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130018676 


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 per the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1993, sections 4403 and/or 4464 and item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states:

   a.  Upon retirement he was told that he would be eligible for a retired pay increase at age 62 as indicated in item 18 of his DD Form 214.  It has been less than three years since he reached age 62, so he is within limits.  He was directed by the Defense Finance and Accounting Service (DFAS) to contact the Board.

	b.  He served on active duty prior to, and including December 1976; consequently, he was "grandfathered" under the retirement system for service as of that date.  When he actually retired from active duty in 1997, he was offered a choice of two types of retirement:  active Federal retirement at a reduced rate, but pay starting immediately; or Reserve retirement (at a slightly higher rate) beginning at age 60.  He chose the former, but was told that he would be eligible for pay recomputation when he reached age 62, as indicated in item 18 of his DD Form 214.

	c.  This did not happen automatically when he reached the required age, so he telephoned DFAS and was told that he needed to submit documents which (after 14 permanent changes of station and subsequent moves) he did not have.  He believes he now has the required documents and they are attached to the DD Form 149 (Application for Correction of Military Record).  

3.  The applicant provides copies of the following:

* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* Chronological Statement of Retirement Points
* DD Form 214 ending 31 August 1997
* letter from DFAS

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 23 January 1949.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 27 September 1967, for 6 years.  He was appointed in the USAR, Infantry Branch, as a second lieutenant, on 19 August 1971.  He served as an infantry officer.

4.  He entered active duty on 31 October 1972.  He was released from active duty on 3 January 1977 and was transferred to a Reserve unit.  He was issued a DD Form 214 (Report of Separation from Active Duty) crediting him with completion of 4 years, 2 months, and 3 days of net active service.  He was credited with 1 year, 2 months, and 14 days of prior inactive service for a total of 5 years, 4 months, and 17 days of total service for pay.

5.  He was ordered to active duty for training (ADT) and entered active duty on 1 August 1985.  He was released from ADT on 19 December 1985, and he was transferred to the U.S. Army Reserve Personnel Center.  He was issued a DD Form 214 crediting him with completion of 4 months and 19 days of net active service.

6.  He again entered on active duty on 22 August 1986.

7.  He provided copies of the following:

* A Notification of Eligibility for Retired Pay at Age 60 letter, dated 22 March 1993, wherein he was advised of his completion of the required years of service for retired pay on application at age 60
* A Chronological Statement of Retirement Points, dated 31 October 1996, which shows he was credited with 24 years of qualifying service for retirement
* Orders Number P02-010037, dated 25 February 1997, which show he had completed a total of 16 years, 8 months, and 19 days of active Federal service.

8.  He was released from active duty on 31 August 1997, by reason of voluntary early retirement, and he was transferred to the USAR Control Group (Retired).  He was issued a DD Form 214 crediting him with completion of 10 years, 11 months, and 9 days of net active service this period.  He was also credited with completing 5 years, 9 months, and 10 days of prior active service, for a total of 16 years, 8 months, and 29 days of creditable active service for retired pay.  He was also credited with completing 9 years, 3 months, and 24 days of total prior inactive service.

9.  Item 18 of his DD Form 214 contains the entry, "Member is Retiring as Provided by Section 4403 of the FY 1993 NDAA (Public Law 102-484) and May Qualify for a Recomputation of Retired Pay at Age 62 (Section 4464 of Same Law)."

10.  He reached age 60 on 23 January 2009 and reached age 62 on 23 January 2011.

11.  His record contains a Chronological Statement of Retirement Points, dated 10 July 2014, which shows he was credited with a total of 25 years of qualifying service for retirement ending on 18 August 1997.

12.  He also provided a copy of a letter, 5 August 2013, wherein DFAS, Retired and Annuitant Pay, advised him they were unable to process his request because any correction of record must be initiated through his branch of service. Changes to retirement factors were considered to be a correction of military records under the provisions of Title 10, U.S. Code, chapter 79, sections 1551 through 1557.  He was advised to send the DD Form 149 to his branch of service's board for correction.   

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The regulation states item 18 of the DD Form 214 for a Soldier who retired with 15 years, but less than 20 years of active Federal service would list the entry, "Soldier is Retiring as Provided by Section 4403 of the FY 93 NDAA (PL 102-484) and May Qualify for a Recomputation of Retired Pay at Age 62 (Section 4464 of Same Law)."  

14.  Public Law 102-484 (NDAA for FY93) - establishes policy, assigns responsibilities, and prescribes procedures to certify the public and community service employment of eligible retired members under Section 4464 of the FY 93 NDAA.  Such certified employment may be used to recompute military retired pay and, where applicable, the Survivor Benefit Plan base amount when the retired member attains or would have attained 62 years of age.  The instructions applied to a member of the Military Services who retires (other than for disability) under the temporary early retirement authority (TERA) before the completion of 20 years of creditable service and is employed within the period beginning on the date of retirement and ending on the date the retired member would have attained 20 years of creditable service for computing retired pay.

15.  The Public and Community Service (PACS) Program 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 Enhanced Retirement Qualification Period (ERQP).  Retirees were required to document their employment using a DD Form 2676 (Validation of Public of Community Service Employment) and submitting the form to the Defense Manpower Data Center (DMDC).  The timeline to submit PACS applications to the DMDC ended one year to the day after the member's ERQP expired.  DMDC is no longer authorized to accept any new PACS applications.  The program officially expired in August 2008 (one year after the last official TERA recipient's ERQP expired.)

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was granted a voluntary early retirement and retired on 31 August 1997. 

2.  Item 18 of the DD Form 214 he was issued contained the entry, "Member is Retiring as Provided by Section 4403 of the FY 1993 NDAA (PL 102-484) and May Qualify for a Recomputation of Retired Pay at Age 62."  He reached age 62 on xx January 2011.
3.  The entry in item 18 of his 1997 DD Form 214 applied to members who retired (other than for disability) under the TERA before the completion of 20 years of active creditable service and were employed under the ERQP within the period beginning on the date of retirement and ending on the date the retired member would have attained 20 years of creditable active service for computing retired pay.  

4.  Also, in accordance with the PACS Program, he was allowed to apply post-retirement employment with certain pre-approved employers up to an ERQP towards his military retirement pay starting at age 62.  However, there is no evidence of record and he did not provided sufficient evidence to show he met the criteria for a recomputation of his retired pay under the PACS Program.   

5.  In view of the foregoing, he is not entitled to the requested relief at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20130018676



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ABCMR Record of Proceedings (cont)                                         AR20130018676



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