IN THE CASE OF:	  

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130022383 


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 was never informed of the TERA program during his separation processing from the Army or that he needed to register in the Public and Community Service (PACS) program.  The only thing he was informed of was that he was taking an early retirement and if he worked in certain fields, he would get his full retirement when he turned age 62.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from the State of Missouri, Department of Corrections
* DD Form 2676 (Validation of Public or Community Service Employment)
* DD Form 2581 (Operation Transition Employer Registration)
* DD Form 2581-1 (Public and Community Service Organization Validation)

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 19 August 1957.  He enlisted in the Regular Army on 7 September 1977.  On 1 September 1983, he was promoted to the rank/grade of staff sergeant (SSG)/E-6.  

3.  On 31 August 1994, he retired under the Voluntary Early Retirement Program and on 1 September 1994, he was placed on the Retired List in the rank/grade of SSG/E-6.  His DD Form 214 confirms he completed 16 years, 11 months, and 
24 days of active service.  Item 18 (Remarks) confirms he was retired under the TERA provisions of the law and that he may qualify for recomputation of retired pay at age 62.

4.  On 7 February 2014, in the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army.  The G-1 official stated:

	a.  The applicant retired from the Army under TERA on 31 August 1994.  He had 16 years, 11 months, and 24 days of active 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 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 and Department of Defense (DOD) policy provides that applications should have been submitted within 1 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 State of Missouri, Department of Corrections, Jefferson City, MO, listing employment from            27 December 1994 to present.  The employment meets the guidelines laid out in applicable statutes under Title 10, U.S. Code, Section 1143a (c) and DOD Instruction (DODI) 1332.37 (Programs to Encourage Public and Community Service Employment).  The applicant's ERQP is 6 September 1997.  Only service in a recognized position, between his retirement date and 6 September 1997, could be counted in any retirement adjustment.  His total employment with the Missouri Department of Corrections, prior to his ERQP, was 3 years and 6 days.

	d.  Recommend partial relief as a matter of equity by granting the applicant credit for the 3 years and 6 days 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 a rebuttal.

6.  Public Law 102-484, Section 4403 of the Fiscal Year 1993 National Defense Authorization Act for (FY93 NDAA) provided the Secretary of Defense a temporary additional force management tool with which to drawdown military forces through 1995.  The FY93 NDAA 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 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 (ERQP).

8.  DODI 1332.37 established policy, assigned responsibilities, and prescribed 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, early retirees must be employed with certain DOD-registered public and community service organizations. 

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

	c.  Section 6.3.2. Early retirees must provide a copy of their confirmation Defense Outplacement Referral System 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 or Public Law 103-160 to 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 31 August 1994 with 16 years, 11 months, and 
24 days of active service.

2.  Documentation he provided shows he was employed by the State of Missouri, Department of Corrections from 27 December 1994 to present.  Documentation further shows his employment meets the guidelines in DODI 1332.37.  However, his ERQP is 6 September 1997.  Only his service at the Missouri Department of Corrections, beginning on his retired date (31 August 1994) and ending on his ERQP (6 September 1997), can be counted in any retirement adjustment.

3.  Therefore, as a matter of equity, his records should be corrected to show qualifying credit for retirement of 3 years and 6 days 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 3 years and 6 days of qualifying service between his retirement date (31 August 1994) and his ERQP (6 September 1997); 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)                                         AR20130022383





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ABCMR Record of Proceedings (cont)                                         AR20130022383



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