BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140003196 


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 for qualifying employment during the Enhanced Retirement Qualification Period (ERQP) under the provisions of the 1995 Temporary Early Retirement Authority (TERA) and adjustment of his retired pay accordingly.

2.  The applicant states the law requires that proof of public service be provided by the retiree within a prescribed period not to exceed what would have been the 21st year of military service.  He met that requirement by submitting the appropriate paperwork and documentation via the Army Career and Alumni Program (ACAP) office at Fort Sam Houston as directed by them.  The ACAP office he out-processed through was Fort Benjamin Harrison.  He then moved to Texas.  The Fort Sam Houston ACAP personnel stated they would take care of the paperwork.  According to the Defense Finance and Accounting Service they never received the documentation.  He has gathered the documentation again and is submitting it for the Board's consideration and corrective action.  He adds that he was anticipating an increase in his retirement pay upon turning age 62 in January 2014.

3.  The applicant provides:

* U.S. Army Reserve Personnel Center Orders P-01-010007
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* six San Antonio Independent School District (SAISD) employment-related documents
* SAISD employment verification letter
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 in January 1952.  On 30 September 1994, he was retired in the rank/grade of major/O-4, by reason of voluntary early retirement.  

3.  U.S. Army Reserve Personnel Center Orders P-01-010007, dated 25 January 1994, retired the applicant on 30 September 1994 and placed him on the retired list, effective 1 October 1994.  The orders show:

* Voluntary retirement:  15 years, 2 months, 26 days
* Section 1405 Service:  15 years, 4 months, 11 days

4.  Item 18 (Remarks) of the DD Form 214 he was issued at the time confirms he was retiring under the TERA provisions of the law and that he could qualify for recomputation of retired pay at age 62 under the provisions of Title 10, U.S. Code, section 4460 (10 USC 4460).

5.  The applicant provides six SAISD employment agreement-related documents.  These documents show he was under contract for the following five pertinent periods which resulted in a total of 3 years, 11 months, and 27 days of qualifying public service.

* 1 October 1994-26 May 1995 		(7 months and 26 days)
* 8 August 1995-28 May 1996 		(9 months and 21 days)
* 5 August 1996-23 May 1997 		(9 months and 19 days)
* 30 July 1997-5 June 1998 			(10 months and 7 days)
* 22 July 1998-4 June 1999 			(10 months and 14 days)

6.  He also submits an SAISD letter, dated 30 January 2014, stating the letter was serving as an official verification that the applicant had been employed full-time by the SAISD as an at-risk teacher.  It shows the period of employment was from 10 August 1994 through 31 May 2006.

7.  In connection with the processing of this case, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, Chief, Incentives and Budget Branch, Enlisted Accessions Division.  The official indicated the TERA permitted retirees to obtain an adjustment to their retired pay at age 62 based on service credit for employment with qualified employers.  The official stated the applicant did not apply within the specified guidelines and cut off dates until after the ERQP expiration date.  He verified that the applicant's employment with the SAISD met the guidelines in applicable statutes under 10 USC 1143a and Department of Defense Instruction (DODI) 1332.37.  He further confirmed the applicant's ERQP expiration date was 4 July 1999 (date he would have attained 20 years of military service had he remained on active duty) and that only qualifying public service completed between his retirement date of 30 September 1994 and 4 July 1999 count in any retirement adjustment.  The advisory official recommended the applicant be granted partial relief as a matter of equity by granting the applicant 3 years, 10 months and 22 days credit for qualifying employment between his retirement date and his ERQP expiration date.

8.  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.  He did not respond within the allotted time.

9.  Public Law 102-484, Section 4464 provided that if a member or former member of the Armed Forces retired under section 4403(a) or any other provision of law authorizing retirement from the Armed Forces (other than for disability) before the completion of at least 20 years of active duty service (as computed under the applicable provision of law) is employed by a public service or community service organization listed on the registry maintained under 10 USC 1143a(c) (as added by Section 4462 of Public Law 102-484), within the period of the member’s ERQP, the member’s or former member’s retired or retainer pay shall be recomputed 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.

	a.  For purposes of recomputing a member’s or former member’s retired pay the years of the member’s or former member’s employment by a public service or community service organization referred to above during the member’s or former member’s ERQP shall be treated as years of active duty service in the Armed Forces.

	b.  10 USC 1405(b) shall apply in determining years of service under this subsection.  In this subsection, the term "enhanced retirement qualification period," with respect to a member or former member retired under a provision of law referred to in paragraph (1), means the period beginning on the date of the retirement of the member or former member and ending the number of years (including any fraction of a year) after that date which when added to the number of years (including any fraction of a year) of service credited for purposes of computing the retired pay of the member or former member upon retirement equals 20 years.

10.  DODI 1332.37 (Programs to Encourage Public and Community Service (PACS) 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, 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.  This list includes elementary, secondary, or post-secondary school teaching or administration.

	b. 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 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 with 15 years, 2 months, and 26 days of active service credit and 15 years, 4 months, 11 days of 10 USC 1405 credit.

2.  Although it doesn't appear the applicant and his employer satisfied all of the registration requirements of the program, given the applicant’s employment with the SAISD during the period 1 October 1994 (retirement date) through 4 July 1999 (ERQP ending date), minus a period of non-contract time each summer, it appears he met the program requirements. 

3.  Though the G-1 advisory indicated the applicant completed 3 years, 10 months and 22 days of his employment with the SAISD between his retirement date and his ERQP expiration date, it appears he completed 3 years, 11 months and 27 days. 

4.  Therefore, as a matter of equity, it would be appropriate to correct his records to show qualifying credit of 3 years, 11 months, and 27 days for retirement under the TERA ERQP provisions of the law.  His retired pay should be recomputed effective on the first day of the first month beginning after the date on which he attained 62 years of age and adjusted accordingly 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:

	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 3 years, 11 months, and 27 days of additional qualifying service; 

	c.  adjusting his retired pay accordingly effective on the first day of the first month beginning after the date on which he attained 62 years of age; and

   d.  paying him any back retired pay due as a result of the above.
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)                                         AR20140003196



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ABCMR Record of Proceedings (cont)                                         AR20140003196



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