BOARD DATE:	  17 December 2014

		DOCKET NUMBER:  AR20140005606 


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 his records to show he received credit for 20 years of service (or an additional 2 years, 3 months, and 12 days of service credit) and an adjustment of his retired pay under the provisions of the Temporary Early Retirement Authority (TERA).

2.  The applicant states, in effect, his records should be corrected to show he completed 20 years of service based on his public service after leaving the military with 17 years, 8 months, and 19 days.  He retired on 1 October 1994 under TERA and has served as a bus driver and mechanic at the Copperas Cove Independent School District, TX from October 1996 to August 2003.

3.  The applicant provides a self-authored statement, his response to an advisory opinion, and his teacher service record.

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 February 1955.  He enlisted in the U.S. Army Reserve (USAR) on 12 January 1977 and served in the USAR until 15 February 1977.  He subsequently enlisted in the Regular Army on 16 February 1977.  He served through several reenlistments and/or extensions and attained the rank/grade of staff sergeant (SSG)/E-6 on 1 February 1984.

3.  He was honorably retired on 30 September 1994 in the rank of SSG under the Voluntary Early Retirement program and he was placed on the Retired List on 
1 October 1994.  He completed 17 years, 8 months, and 19 days of creditable service for pay.  

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

5.  There is no evidence that shows he 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.  He provides teacher service record issued by the Copperas Cove Independent School District, TX, wherein it verified he had been employed by the Copperas Cove Independent School District, TX, as:

* a part time bus driver from 29 August 1996 to 13 September 1996
* a full time transportation mechanic from 17 February 1997 to 1 August 2003

7.  In the processing of the case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, on 18 November 2014.  The advisory official recommended granting the applicant partial relief and stated:

	a.  The applicant retired from the Army under TERA on 30 September 1994 and he had 17 years, 8 months, and 19 days of service when he retired.  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 retired from the Army under TERA on 1 October 1994.  He had 17 years, 8 months, and 19 days of service when he retired.  Based on the required 2 years, 3 months, and 12 days to reach 20 years of service, the applicant's ERQP is calculated as 13 January 1997.

	d.  The applicant provides documentation from Copperas Cove Independent School District, TX listing employment from 29 August 1996 to 1 August 2003 for a total of more than 6 years.  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.  

	e.  Though the applicant's employment qualifies as legitimate, only service in a recognized position served between his retirement date of 1 October 1994 and 13 January 1997 (ERQP) counts in any retirement adjustment.  The only period of qualifying employment were the documented 16 days as a bus driver between 29 August and 13 September 1996.

	f.  Recommend partial approval of the applicant's request to adjust his retirement pay at age 62 considering the 16 day period that was deemed as qualifying and occurred between his retirement date and his ERQP.

8.  In a response received on 10 December 2014, the applicant stated he understood and agreed with the advisory opinion.  

9.  The applicant will turn age 62 in February 2017.

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 TERA on 30 September 1994 and had 17 years, 8 months, and 19 days of service for pay. 

2.  He provides documentation that shows he was employed by the Copperas Cove Independent School District, TX listing employment from 29 August 1996 to 1 August 2003.  This employment meets the guidelines in DODI 1332.37.  His ERQP, the date he would have attained 20 years of service, is 13 January 1997. Only his service as a bus driver served between his retirement date of 30 September 1994 and 13 January 1997 is eligible for service credit.  The total employment prior to his ERQP was 16 days.

3.  Although he did not submit the required application within the required timeframe, the evidence of record shows his employment from 29 August 1996 to his ERQP did meet the guidelines under the TERA program as confirmed by the advisory official.  Therefore, as a matter of equity, his records should be corrected to show credit for the 16 days of qualifying service between his retirement date and his ERQP.

4.  With respect to his request to correct his records to show he had 20 years of qualifying service, only his employment between his retirement date and his ERQP is creditable.  Other than his qualifying service as a bus driver, he did not provide any other evidence to show he had qualifying employment from 
1 October 1994 to 13 January 1997.  Therefore, he 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 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 16 days of qualifying service between his retirement date of 30 September 1994 and his ERQP of 13 January 1997; and adjusting his retired pay accordingly effective the date he turns 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 his retirement pay to credit him 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)                                         AR20140005606



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ABCMR Record of Proceedings (cont)                                         AR20140005606



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