IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140011884 


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) under the 1995 Temporary Early Retirement Authority (TERA) provisions of the law.

2.  The applicant states, in effect:

* he retired under the provisions of TERA and if he entered a public service or community service career field he could submit paper work to have his retirement adjusted to a 20 year retirement for pay purposes
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) states he may qualify for recomputation of retired pay at age 62
* on 26 July 2012 he turned 62 and he has been trying to process his application for recomputation of his retirement pay
* he has spent almost 2 years trying to accomplish this and has been unable to get it completed
* he contacted the Defense and Accounting Services (DFAS) and was informed they did not handle pay adjustments 
* he has been employed by the Transportation Security Administration since 29 September 2002
* he was employed by the Los Angeles Unified School District from 1996 through 1999 as a teacher and by the Duarte Unified School District from 1999 through 2000



3.  The applicant provides:

* two self-authored statements
* DD Form 214
* employment records

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, and 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.  On 31 August 1993, the applicant was retired in the rank/grade of sergeant first class (SFC)/E-7 by reason of voluntary early retirement.  The DD Form 214 he was issued at the time shows he completed 17 years, 7 months, and 12 days of creditable active service.  Item 18 (Remarks) confirms the applicant was retiring under the TERA provisions of the law and that he could qualify for recomputation of retired pay at age 62.

3.  The applicant provides verification of employment with the Los Angeles United School District from 15 July 1996 through 30 June 2000.  He also provides verification of employment with the Department of Homeland Security which began on 29 September 2002.

4.  In connection with the processing of this case, on 22 October 2014, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, Chief, Incentives and Budget Branch, Enlisted Accessions Division.  The advisory official recommends denial of the applicant’s request.  The advisory opinion stated:

     a.  The TERA was offered to Soldiers with at least 15 years of service.  TERA permitted Soldiers to obtain employment with a public service 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) by August 2008.

     b.  Army policy reflects Department of Defense policy that applications should have been submitted within one 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 cutoff dates until after the ERQP expiration date established by the DMDC.

     c.  He retired from the Army under TERA on 31 August 1993.  He had completed 17 years, 7 months, and 12 days of active service when he retired.  Based on the required 2 years, 4 months, and 18 days of required service to reach 20 years of service, his ERQP was calculated as 18 January 1996.

     d.  He provided documentation from the Los Angeles Unified School District listing employment from 15 July 1996 to 30 June 2000 for a total of 3 years,      11 months, and 15 days.  He also provided documentation from the Department of Homeland Security listing employment from 29 September 2002 to 6 March 2014 for a total of 11 years and 5 months.  The employment met the applicable guidelines.

     e.  Although his employment qualified, only service in a recognized service between his retirement date of 31 August 1993 and 14 January 1996 (ERQP) counted in any retirement adjustment.

5.  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.  

6.  On 20 November 2014, he responded to the advisory opinion.  He stated:

* his retirement case is special and that when he retired he did not receive any of the normal services or briefings on retirement
* he did not received any information on what was expected of him with regard to the TERA
* he was basically given orders and told to out process as soon as possible
* at that time all of the services were downsizing and doing it very rapidly
* the Army was buying out contracts and discharging individuals for any reason possible and finally offered the TERA
* the turmoil in the Army created a haphazard discharge process due to the number of people concerned and the pace at which it was conducted
* he is not trying to negate his responsibilities, but none of them were addressed by the Army
* he faithfully fulfilled his obligations as was explained to him upon retirement and worked for 21 years to fulfill them
* if he had the required information upon leaving the Army, he would have followed the instructions to the letter
* his concern is that he has upheld his obligations and tried to meet the requirements for recomputation of his retirement pay
* in looking at the history of these types of downsizing events, these problems are similar problems that have been encountered

7.  Title 10, U.S. Code, section 3914 provides the legal authority for the retirement of enlisted personnel 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for service credit and an adjustment of retired pay under the ERQP provisions has been carefully considered and was found to be without merit.

2.  His contention that he was not given information on the requirements and deadlines for TERA was noted; however, there is no evidence that he was unfairly deprived of the requirements, instructions, and/or application deadlines of TERA provisions prior to separation.  

3.  In accordance with the PACS Program, he was allowed to apply some post-retirement employment with certain pre-approved employers up until his ERQP of 14 January 1996.  Although his employment qualified under governing policy, his employment did not occur between his retirement date and his ERQP.  Therefore, he is not entitled to the requested relief.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   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)                                         AR20140011884



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ABCMR Record of Proceedings (cont)                                         AR20140011884



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