BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140016046 


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 correction of his military records by adjusting his retired pay based on his public service as a teacher under the provisions of the Temporary Early Retirement Authority (TERA).

2.  The applicant states his retired pay is being reduced because he retired 
9 months and 5 days prior to completing 20 years of military service.  He contends that he has been a teacher since the day of his retirement and would like to have his retired pay restored to the full amount based on 20 years of service.

3.  The applicant provides copies of:

* Orders S95-4, U.S. Total Army Personnel Command, dated 19 May 1993
* A Memorandum, subject: Officer Retirement, U.S. Total Army Personnel Command, dated 20 May 1993
* A Memorandum, subject: Early Retirement, U.S. Total Army Personnel Command, undated (Circa 1993)
* A DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 31 August 1993
* An Oklahoma State Department of Education Teaching Certificate, dated 7 August 1996
* A letter from the Defense Finance and Accounting Service (DFAS), to the applicant, dated 14 February 2014
* A letter from the DFAS, to the applicant, dated 26 August 2014

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.  On 5 June 1974, the applicant entered the Regular Army as a commissioned officer.  He was promoted to major, pay grade O-4 effective 1 September 1985.

3.  Orders S95-4, dated 19 May 1993, as provided by the applicant, state he was required to be registered with the Public and Community Service Job Opportunity Personnel Registry prior to being retired.

4.  A DD Form 214 shows the applicant was retired in the rank of major, pay grade O-4, on 31 August 1993.  The Remarks block of this form states: "Member is retiring as provided by section 4403 of the FY 1993 NDAA (PL 102-484) and may qualify for a recomputation of retired pay at age 62 (section 4464 of same law) data herein subject to computer matching within the DOD or with other agencies for verification purposes and determining eligibility or compliance for Federal benefits."

5.  An Oklahoma State Department of Education Teaching Certificate, dated 
7 August 1996, as provided by the applicant, indicates he was certified to teach algebra, computer science, general mathematics, computer application, and general science in grades 7 through 12 from 1 July 1996 to 30 June 2001.

6.  A letter from the DFAS, dated 14 February 2014, informed the applicant that his retired pay account did not show he had any qualified public service.  Further, he was in the TERA database as being authorized a recomputation of retired pay at age 62.



7.  A letter from the DFAS, dated 26 August 2014, again informed the applicant that his retired pay account did not show he had any qualified public service and that he was not in the TERA database as being authorized a recomputation of retired pay at age 62.

8.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1 (Personnel Officer).  The opinion stated:

	a.  The applicant was requesting an adjustment of his retired pay under the provisions of TERA.

	b.  The TERA was offered to Soldiers who had at least 15 years of service.  The TERA permitted such Soldiers to obtain employment with a public service (Federal, state, or local government) or a recognized community service organization for a period up to when the Soldier would have attained his 20 years of military 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 provided they had applied for such adjustment with the Defense Manpower Data Center (DMDC) by August 2008.

	c.  Department of Defense and Army policies stated that applications for adjustment should have been submitted within 1 year of the ERQP.  TERA participants were given complete instructions and application deadlines prior to separation.  In this case, the applicant did not apply until after the ERQP cutoff dates  which was after the specified guidelines established by the DMDC.

	d.  The applicant retired from the Army under TERA on 31 August 1993.  He had completed 19 years, 2 months, and 26 days of service.  Based on the needed 9 months and 5 days of required public service to reach 20 years of qualifying service, his ERQP was calculated as 5 June 1994.

	e.  The documentation provided by the applicant indicates that he was certified as a teacher for a 5-year period 1 July 1996 to 30 June 2001.  However, for him to qualify for an adjustment of his retired pay under TERA, he had to have completed his public service between 31 August 1993 and 5 June 1994.

	f.  Because the applicant did not complete his public service during the required period, his request for an adjustment of his retired pay should be denied.

9.  On 27 October 2014, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by adjusting his retired pay based on his public service as a teacher under the provisions of the TERA.

2.  The available evidence shows that the applicant voluntarily retired under the provisions of the TERA with 19 years, 2 months and 26 days of service.  His ERQP was calculated as 5 June 1994, which was the cutoff date for him to have completed his public service and qualify for an adjustment of his retired pay at age 62.

3.  The applicant's evidence shows he was certified as a teacher for the 5-year period 1 July 1996 to 30 June 2001.  This was after his ERQP had expired on 
5 June 1994.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20140016046





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ABCMR Record of Proceedings (cont)                                         AR20140016046



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