IN THE CASE OF:  	  

		BOARD DATE:  26 February 2015	  

		DOCKET NUMBER:  AR20140011563 


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, readjustment of his retired pay under the provisions of the Temporary Early Retirement Authority (TERA).

2.  The applicant states:

   a.  He retired under the provisions of Section 4403 of the Fiscal Year 1993 (FY 93) National Defense Authorization Act (NDAA).  According to section 4464 of that same law, he is entitled to recomputation of retired pay at age 62.  At his retirement briefing, he inquired about how this was to be done.  He was advised that it would be done automatically at age 62.  He recently learned an application had to be made for this to happen and now only the Army Board for Correction of Military Records (ABCMR) could make this correction to his record by adjusting his retired pay to reflect the time that he spent in the classroom.

   b.  He knows that the record is in error because it does not reflect the time he spent in education.  It would be unjust not to change the record to reflect this service because he followed the instructions given to him upon retirement.  He had no reasonable knowledge that this information was either incorrect and would change at a later date.  He was one of the first retirees under this act and full details were not general knowledge at the time of his retirement from active duty.

   c.  He recently discovered his retirement recomputation was incorrect; however, it has been almost 20 years since the error first occurred.  Correcting the record is the proper action because the mistake was through no fault of his own.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from Livingston Parish Public School.

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 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was born on XX July 1954.

3.  His military records show he was appointed in the U.S. Army Reserve, as a second lieutenant, on 22 May 1976.  He entered active duty on 12 January 1979. He was promoted to major on 1 January 1989. 

4.  On 16 June 1994, he voluntarily requested release from active duty on 
31 October 1994 under the provisions of Army Regulation 635-100 (Personnel Separations – Officer Personnel), paragraph 4-9 and Department of the Army (DA) Message 241800Z, dated May 1994, Subject:  Selective Continuation Board. 

5.  On 16 and 17 June 1994, the applicant's chain of command recommended expeditious approval of the applicant's request.  The applicant's company and battalion commanders stated that the applicant had been non-selected for promotion to lieutenant colonel and he had not been selected for continuation.  The applicant had a firm offer to teach in a local public school system, but must report for work on 14 August 1994.

6.  He was honorably released from active duty on 31 October 1994 and placed on the retired list on 1 November 1994.  He was credited with completing 15 years, 9 months, and 19 days of net active service. 

7.  He provided a copy of a letter, dated 23 June 2014, wherein the Livingston Parish Public School, Livingston, LA, certified the applicant's employment history with them from 19 August 1994 to the present.  The letter stated the applicant would have completed 20 years of educational service with their parish system on 16 August 2014.

8.  In an advisory opinion, dated 30 July 1994, the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, reiterated the applicant's request.  The G-1 official stated:

   a.  The applicant retired from the Army under TERA on 31 October 1994.  He had 15 years, 9 months, and 19 days of 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 Enhanced Retirement Qualification Period (ERQP).  Such retirees received 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 policy reflected Department of Defense (DoD) policy that such applications should had 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 provided documentation from the Livingston Parish Public School Systems, listing employment from 19 August 1994 to the present.  The employment meets the guidelines laid out in applicable statutes under Title 10, U.S. Code, section 1143a(c) and DoD Instruction 1332.36.  The applicant's ERQP (date he would have attained 20 years of service) was 11 January 1999.  Only service in a recognized position served between his retirement date of 31 October 1994 and 11 January 1999 count in any retirement adjustment.  Total employment prior to ERQP was 4 years, 2 months, and 11 days with the Livingston Parish Public School System.

   d.  The G-1 official recommended partial relief as a matter of equity by granting the applicant credit for the 4 years, 2 months, and 11 days of qualifying service between his retirement date and his ERQP.

9.  On 30 July 2014, the advisory opinion was provided to the applicant for acknowledgement/rebuttal.  In his response, dated 6 August 2014, the applicant stated:

   a.  He hopes the ABCMR has accepted and adopted the advisory opinion's recommendations.  However, there was a bit of data in that opinion that was inaccurate.  He did not receive instructions on how to apply for the ERQP nor was he given any application deadline prior to separation.  The only information he was given was an entry in item 18 (Remarks) of his DD Form 214 that stated, "And May Qualify for Recomputation of Retired Pay at Age 62."  At his separation briefing when he inquired how that would work, he was told it would be automatically done by the retirement people.  He had every reason to believe that would just automatically happen. 

   b.  Six or 8 months ago he was convinced to send a letter to the Defense Finance and Accounting Service (DFAS) verifying everything was on track.  A month later DFAS advised him that there was an application process that he had missed and that only the ABCMR could resolve his request.  He believed he has done everything that he needed to do to obtain full benefit of all of his retirement options.  He had chosen education because of the opportunity for enhanced military retirements.

10.  He reached age 60 on XX July 2014 and will reach age 62 on XX July 2016.

11.  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 personal 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 (Public Law 102-484) and May Qualify for a Recomputation of Retired Pay at Age 62 (Section 4464 of Same Law)."  

12.  Public Law 102-484 (NDAA for FY93) established 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 could be used to recompute military retired pay when the retired member attained or would had attained 62 years of age.  The instructions applied to members of the Military Services who retired (other than for disability) under the TERA before the completion of 20 years of creditable service and were 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.
13.  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 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 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).

DISCUSSIONS AND CONCLUSIONS:

1.  The evidence of record shows the applicant served on active duty as a commissioned officer from 12 January 1979 until he retired under TERA on 31 October 1994.  He completed 15 years, 9 months, and 19 days of service.  

2.  His employment with the Livingston Parish Public School System from 19 August 1994 to the present meets the guidelines laid out in the applicable statue under the law.  However, it appears the applicant did not apply within specified guidelines and cut-off dates after his ERQP expiration date of 11 January 1999.  On that date he would have obtained 20 years of service.

3.  Under the provisions of TERA, only service in a recognized position served between his retirement date of 31 October 1994 and his ERQP of 11 January 1999 count in any retirement adjustment.  Therefore, his total employment prior to ERQP was 4 years, 2 months, and 11 days.

4.  As a matter of equity in this case, the G-1 recommended the applicant be granted partial relief by crediting him with 4 years, 2 months, and 11 days of qualifying service. 

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:

* crediting him with 4 years, 2 months, and 11 days of qualifying service between 31 October 1994 and 11 January 1999 for adjustment of his retired pay at age 62 (XX July 2016)
* notifying DFAS of this correction for their appropriate action when he reaches 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 full or additional credit of qualifying service for adjustment of his retired pay at age 62 beyond 11 January 1999.



      ___________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)                                         AR20140011563





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ABCMR Record of Proceedings (cont)                                         AR20140011563



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