IN THE CASE OF:	  

		BOARD DATE:	  27 October 2015

		DOCKET NUMBER:  AR20150000611 


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

2.  The applicant states, in effect:

* he retired under TERA on 30 June 1998
* he applied to the Defense Finance and Accounting Service (DFAS) for a recomputation of his retired pay but his request was denied
* he made his request under the provisions of Title 10, section 4403 of the Fiscal Year 1993 National Defense Authorization Act, with recomputation of retired pay at age 62 per section 4464 of the same law
* he completed several years of public and community service
* he was not aware of being eligible for the possibility of receiving an adjustment of his military retired pay; had he been properly counseled, he would have submitted his request earlier

3.  The applicant provides:

* letter, dated 19 December 2014, sent by the McAllen Independent School District
* Request for Personnel File Copies, dated 17 December 2014
* State of Texas Para Professional Service Record
* State of Texas Teacher Service Record
* letter, dated 19 December 2014, sent by the University of Texas - Pan American
* Orders Number 126-395, date 6 May 1998, issued by the State of Texas Adjutant General's Department
* Orders Number 126-394, date 6 May 1998, issued by the State of Texas Adjutant General's Department
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 1998
* information sheet regarding 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's records show he was born on 23 July 1946.

3.  His records show, after having prior enlisted service in the Texas Army National Guard (TXARNG), he enlisted in the TXARNG on 15 April 1972.  

4.  Orders Number 126-395, dated 6 May 1998, issued by the TXARNG, show the applicant was transferred to the Retired Reserve effective 30 June 1998 and placed on the Retired List on 1 July 1998.

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired on 30 June 1998 by reason of voluntary early retirement, after completing 18 years, 1 month, and 5 days of net active creditable service.

6.  Had the applicant remained on active duty, he would have completed 20 years of active service on 25 May 2000.

7.  He provides:

	a.  A letter, dated 19 December 2014, from the McAllen Independent School District which verifies he was employed by the school district as a warehouse supervisor from 25 May 1998 to 3 May 2002.  Also included is a State of Texas Para Professional Service Record and Teacher Service Record confirming the dates listed in the letter.

	b.  A letter, dated 19 December 2014, from the University of Texas - Pan American, which certifies the applicant was employed as a full-time warehouse supervisor from 6 May 2002 to 31 March 2009.

8.  On 11 February 2015, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army.  This official stated:

	a.  The applicant requests an adjustment of retirement pay under the provisions of the TERA.  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 Defense Manpower Data Center (DMDC) by August 2008.

	b.  Army policy reflects Department of Defense (DoD) policy that such 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 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 30 June 1998.  He had 18 years, 1 month, and 5 days of active Federal service when he retired.  Based on the required 1 year, 10 months, and 25 days to reach 20 years of service, the applicant's ERQP is calculated as 25 May 2000 (as adjusted based on an email from the G-1 official). 

	d.  The applicant provided documentation from the McAllen Independent School District, listing employment from 25 May 1998 to 3 May 2002 for a total of 3 years, as well as documentation from the University of Texas - Pan American showing employment from 6 May 2002 to 31 March 2009.  The employment meets the guidelines laid out in applicable statutes under Title 10 U.S. Code, section 1143a(c) and Department of Defense Instruction (DODI) 1332.37.

	e.  Though all of the applicant's employment qualifies as legitimate, only the employment performed between the applicant's retirement date and his ERQP can be considered.  The applicant has submitted sufficient documentation to prove that his employment time is more than enough to satisfy the necessary requirements to reach 20 years of service.

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

9.  The applicant was provided with a copy of this advisory opinion.  He acknowledged receipt and requested favorable consideration based on that opinion.  

10.  The applicant turned 62 in July 2008 and is currently age 69.

11.  TERA was enacted by Congress on 23 October 1992 as part of the National Defense Authorization Act of Fiscal Year 1992.  

	a.  Its intent was to assist in the military draw-down of forces by permitting selected military members to retire early when they had between 15 and 20 years of service.  Additional years of service could be accumulated, even though not serving in military uniform, during a period called ERQP.  

	b.  The ERQP was that period from the date of retirement to the date on which the retiree would have attained 20 years of creditable service for the purpose of computing retired pay.  The additional years were earned by service in military Reserve Components or employment in qualifying public or community service organizations – called the Public and Community Service (PACS) program.  

	c.  At age 62, the TERA retiree was permitted to have their retired pay recomputed and increased accordingly.  

	d.  The Secretaries or the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the service.  Retirement under this program was not a right, it is granted on an individual basis according to the requirements of the service.  

	e.  The TERA program ended on 30 September 2001.

12.  DODI 1332.37 (Programs to Encourage PACS Employment) establishes policy, assigns responsibilities, and prescribes procedures to encourage and assist separating Service members, Service members retiring with 20 or more years of service, DOD civilian personnel leaving the Government, and spouses to enter public and community service employment; and encourage and assist Service members requesting retirement with fewer than 20 years of service to register for public and community service employment.

	a.  Section 4.2.2.  In order to have their military retired pay and Survivor Benefit Plan base amount (if applicable) recomputed in accordance with DODI 1340.19 (reference (c)), early retirees must be employed with a DOD-registered public and community service organization that provides the services listed in enclosure 1, subparagraphs E1.1.4.1. through E1.1.4.12., or that coordinates the provision of services listed in enclosure 1, subparagraphs E1.1.4.1. through E1.1.4.12. 

	b.  Section 6.3.1. Registering for PACS is a requirement for consummation of their early retirement under Public Law 102-484, Section 4403 (reference (a)) or Section 561 of Public Law 103-160 (reference (b)).

	c.  Section 6.3.2. Early retirees must provide a copy of their confirmation Defense Outplacement Referral System (DORS) mini-resume to their servicing military personnel office for filing in their Service record before their final retirement processing.

	d.  Section 6.3.5.  DOD-approved PACS employment qualifies the Service member who is retired under Public Law 102-484, Section 4403 (reference (a)) or Public Law 103-160 (reference (b)) for increased retired pay effective on the first day of the first month beginning after the date on which the member or former member attains 62 years of age.  The former service member must have worked in DOD-approved PACS employment between the date of early retirement and the date in which he or she would have attained 20 years of creditable service for computing retired pay, and have retired on or after 23 October 1992 and before 1 October 1999.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired early on 30 June 1998 with 18 years, 6 months, and 1 day of net active service.  To meet the requirements to be given credit for 20 years of service for retired pay purposes, he needed an additional 1 year, 10 months, and 25 days.

2.  He provided documentation from the McAllen Independent School District listing his employment from 25 May 1998 to 3 May 2002.  The employment meets the guidelines in DODI 1332.37.  He provides additional legitimate qualifying employment from the University of Texas - Pan American, which certifies the applicant was from 6 May 2002 to 31 March 2009.  Only the employment between his retirement date and his ERQP, however, can be considered.  The period of employment that meets the criteria is the 22 months with the McAllen Independent School District from his date of retirement to his ERQP date of 25 May 2000.

3.  As a matter of equity, it would be appropriate to have the applicant's records corrected to show credit for the 1 year and 10 months and 25 days of qualifying service between his retirement date and his ERQP of 25 May 2000.

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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 1 year and 10 months and 25 days of qualifying service between his retirement date (30 June 1998) and his ERQP (25 May 2000), and by adjusting his retired pay accordingly at age 62 and paying him any retroactive retired pay he is due as a result of these corrections.




      _______ _   _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)                                         AR20150000611





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ABCMR Record of Proceedings (cont)                                         AR20150000611



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