RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00586 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her retirement pay be adjusted to account for public service performed as a Temporary Early Retirement Authority (TERA) retiree. ________________________________________________________________ APPLICANT CONTENDS THAT: She was not aware of the program to perform and report public and community service to receive credit toward her retired pay at age 62. Her current position at Illinois Wesleyan University is considered qualifying service as it applies to recomputing retired pay at age 62 under the Public and Community Service (PACS) program under TERA. Her request is after the Enhanced Retirement Qualification Period (ERQP) expired; however, she is requesting this review for two reasons: 1) She only recently became aware (Nov 12) that she had to submit documentation for PACS, and 2) She completed the education that qualified her for program after the eligibility to submit the application to the Defense Military Data Center (DMDC) ended. She was told by Defense Finance and Accounting Service (DFAS) that her position may qualify for the PACS program. However, the program required her to submit proof of meeting this public service obligation within one year after the time she would have reached 20 years on active duty. In this case she would have had to contact DMDC by 3 Oct 00. Her DD Form 214, includes a statement about “recomputation of retired pay at 62” and also states that it was governed by a Section of Public Law, which she now understands to be the TERA program. She did not research the law upon discharge, nor was she aware that she needed to declare her PACS qualification. She learned this when she started her inquiry process with DFAS in Nov 12. She should receive this credit since she worked at a consistent pace to obtain her degree to qualify for this program. In support of her request, the applicant provides a personal statement, copies of her DD Form 214, college transcripts, and various other documents associated with her request. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. DPSOR states that based on the statement contained in the member’s application, it is apparent she was briefed on the PACS program requirements prior to retiring. There is no provision in the law to allow a member to retroactively register for employment in public or community service organizations. The applicant performed no qualifying service prior to the date required by law. In the National Defense Authorization Act for Fiscal Year 1993 (FY93 NDAA), Public Law (PL) 102-484, 23 Oct 92, Congress enacted the TERA, which permitted selected military members to retire early. Section 534 of that law gave the Secretary of Defense authority to allow Service Secretaries to permit early retirement for selected members having more than 15 but less than 20 years of active service. PL 107-314, NDAA for FY03, Section 554, extended TERA to 1 Sep 02 at which time the TERA authority expired. Section 4464 of the FY93 NDAA allowed eligible members retired under TERA to perform public and community service following retirement and receive credit for this service to be used to recompute military retired pay, and where applicable, the Survivor Benefit Plan (SBP) base amount when the retired member attains or would have attained 62 years of age. Public and community service job vacancies included education, conservation, environmental protection, law enforcement, and public health care positions. The Air Force provided specific instructions to the field through a Military Personnel Flight Letter (MPFL) 93-024, Voluntary Early Retirement Program, dated 9 Apr 93. The Department of Defense (DoD) also provided specific information on obtaining public and community service credit through DoD Instruction 1340.19, Certification of Public and Community Service Employment of Military Retirees, dated 17 Nov 93. The NDAA allowed members retiring under TERA to register in advance of the projected retirement date on the Public and Community Service Registry maintained under 10 United States Code (USC) Section 1143a. The law allows no provision to retroactively register for employment in public or community service organizations. The applicant signed an AF Form 1160, Military Retirement Action, dated 9 Feb 94, to request retirement under the TERA. Section IV of the form contains the following statement: “I understand that I must register on the Public and Community Service Registry at the Family Support Center and that my retirement cannot be consummated until my registration has been confirmed.” Based on the procedures established for the TERA processing, and the information contained in the retirement application (AF Form 1160) signed by the applicant, it appears she was properly notified of this program prior to retirement. The Defense Manpower Data Collection (DMDC) team shut down the public and community service registration site on 20 Feb 09. In order to qualify for this credit, applicants were required to turn in proof of public or community service to DMDC not later than one year after they would have attained 20 years Total Active Federal Military Service (TAFMS) had they been continuously on active duty. The applicant retired 1 Jul 95, completing 15 years, 8 months, and 28 days of active service; therefore, any creditable service must have been completed prior to 3 Oct 99 (the date the member would have attained 20 years of TAFMS if the applicant had continued to serve on active duty). Based on the reporting instructions established by the DMDC, the applicant was required to submit record of the creditable service within a year of that point or 3 Oct 00. The applicant’s employment began “after” the date she would have reached 20 years TAFMS and would not have been creditable under this program. The applicant indicates that she was unable to secure a public or community service position due to her educational level and believes she should receive credit since she worked at a consistent pace to obtain her degree to qualify for a creditable position. The complete DPSOR evaluation, with attachments, is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She asks the Board to consider the handwritten DD Form 2580, Department of Defense Job Opportunity Bank Service (JOBS) Individual Application, and the DORS/PACS Individual Application printout. She does not recall receiving the PACS briefing and cannot find a copy of the AF Form 1160 in her files. She recalls being told that she would revert to her regular retired pay at age 62 and filled out the form to qualify for this adjustment. The applicant's complete response, with attachments, is at Exhibit D. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission to include her rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale expressed as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Accordingly, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered Docket Number BC-2013-00586 in Executive Session on 7 Nov 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member Due to the unavailability of XXXXXXXXX, XXXXXXXXXXX will sign as Acting Panel Chair. The following documentary evidence pertaining to Docket Number BC-2013-00586 was considered: Exhibit A. DD Form 149, dated 26 Jan 13, w/atchs. Exhibit B. Letter, AFPC/DPSOR, dated 3 Apr 13. Exhibit C. Letter, SAF/MRBR, dated 14 Apr 13. Exhibit D. Letter, Applicant, dated 15 May 13, w/atchs. 1 2