IN THE CASE OF:	  

		BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140003793 


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, correction of her records to show she received service credit for 20 years of service (or 1 year, 6 months, and 21 days of service credit) and adjustment of her retired pay under the provisions of the Temporary Early Retirement Authority (TERA).

2.  The applicant states her records should be corrected to show she completed 20 years of service based on her public service after leaving the military with 18 years and 6 months.  She retired on 1 July 1998 under TERA and has served as an instructional assistant (teacher's assistant) at the Hyatt Park Elementary School, Columbia, SC, from 26 October 1998 to present.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter, a diploma, and two pages titled TERA.

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 6 June 1952.  She enlisted in the Regular Army on 22 January 1980.  She served through several reenlistments and/or extensions and attained the rank/grade of staff sergeant (SSG)/E-6 on 1 February 1987.

3.  She was honorably retired on 30 June 1998 in the rank of SSG under the Voluntary Early Retirement program and she was placed on the Retired List on 1 July 1998.  She completed 18 years, 5 months, and 9 days of creditable active service.  

4.  Item 18 (Remarks) of the DD Form 214 she was issued confirms she was retiring under the TERA provisions of the law and that she may qualify for recomputation of retired pay at age 62.   

5.  There is no evidence that shows she ever submitted a DD Form 2676 (Validation of Public or Community Service Employment) to the Defense Manpower Data Center (DMDC) prior to August 2008.

6.  She provides a letter, dated 22 January 2014, issued by the Human Resource Services, South Carolina Capital Schools, Columbia, SC, wherein it verified she had been employed by the Richland School District One as a full-time instructional assistant from 26 October 1998 through the present.  

7.  In the processing of the case, an advisory opinion was obtained on 16 April 2014 from the Office of the Deputy Chief of Staff, G-1.  The advisory official recommended granting the applicant partial relief and stated:

	a.  The applicant retired from the Army under TERA on 30 June 1998 and had 18 years, 5 months, and 9 days of service when she 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 (DOD) policy that such 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 Richland, South Carolina School District One listing employment from 26 October 1998 to the present.  The employment meets the guidelines laid out in applicable statutes under Title 10, U.S. Code (USC), Section 1143a (c) and DOD Instruction (DODI) 1332.37.  The applicant's ERQP (date she would have attained 20 years service) is 21 January 2000.  Only service in a recognized position served between her retirement date of 30 June 1998 and 21 January 2000 count in any retirement adjustment.  Her total employment prior to ERQP was 1 year, 2 months, and 25 days with the Richland SC School District.

	d.  Recommend partial relief as a matter of equity by granting the applicant credit for the 1 year, 2 months, and 25 days of qualifying service between her retirement date and her ERQP.

8.  In a response received on 22 September 2014, the applicant stated she did not understand what the advisory opinion meant.  She further stated she had sent a prior response with additional information about a job she worked from 1 July to October 1998.  No attachments were received with her response. 

9.  The applicant turned 62 years of age on 6 June 2014.

10.  Title 10, USC, 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.

11.  DODI 1332.37 (Programs to Encourage PACS Employment) established policy, assigned responsibilities, and prescribed procedures, in part, to encourage and assist separating Service Members requesting retirement with fewer than 20 years of service to register for public and community service employment.

12.  Retirees were required to document their employment using DD Form 2676 and submit the form to the DMDC.  The timeline to submit PACS applications to the DMDC ended 1 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 (1 year after the last official TERA recipient’s ERQP expired). 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant retired under the TERA on 30 June 1998 and had 18 years, 5 months, and 9 days of active service.  

2.  She provides documentation that shows she was employed by the Richland SC School District from 26 October 1998 to the present.  This employment meets the guidelines in DODI 1332.37.  Her ERQP, the date she would have attained 20 years service, is 21 January 2000.  Only her service as an instructional assistant served between her retirement date of 30 June 1998 and 21 January 2000 is eligible for service credit.  The total employment prior to her ERQP was 1 year, 2 months, and 25 days.

3.  Although she did not submit the required application within the required timeframe, the evidence of record shows her employment from 26 October 1998 to her ERQP did meet the guidelines under the TERA program as confirmed by the advisory official.  Therefore, as a matter of equity, her records should be corrected to show credit for the 1 year, 2 months, and 25 days of qualifying service between her retirement date and her ERQP.

4.  With respect to her request to correct her records to show she had 20 years of qualifying service, only her employment between her retirement date and her ERQP is creditable.  She did not provide evidence to show she had qualifying employment from 1 July to 1 October 1998.  Therefore, she is not entitled to full relief.

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 she qualified for an adjustment to her retired pay under the TERA ERQP provisions of the law; by recalculating her retired pay to credit her with 1 year, 2 months, and 25 days of qualifying service between her retirement date of 30 June 1998 and her ERQP of 21 January 2000; and adjusting her retired pay accordingly effective the date she turned 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 adjusting her retirement pay to credit her with 20 years of service.  



      _______ _   __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)                                         AR20140003793





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ABCMR Record of Proceedings (cont)                                         AR20140003793



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