RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02597

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His retirement pay be recalculated under the Temporary Early Retirement Authority (TERA).  

APPLICANT CONTENDS THAT:

He was not given the correct information about how he was to request his pay to be changed from 37 percent to 50 percent when he retired under the TERA program on 1 March 1995.  He retired with 15 years and 9 months of service.  He was told that if he worked in a community related profession (job) for a total of 4.3 years more, his pay would be enhanced to 50 percent when he turned 62 years of age.  

He was told that he needed to complete and submit a DD Form 2581-1, Public and Community Service Organization Validation, DD Form 2676, Validation of Public or Community Service Employment, and DD Form 2581, Operation Transition Employer Registration, for consideration.  However, upon completion of the required forms he was advised under the Defense Manpower Data Center (DMDC) guidance, only the Air Force Board for Correction of Military Records (AFBCMR) can make this correction, as DMDC is no longer taking applications and do not have the authority.  

He would like his status changed in order to be in compliance and receive an increase in pay at age 62.  

The applicant’s complete submission, with attachments, is at Exhibit A.  

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 31 May 1979.  

On 29 November 1994, the applicant initiated an Air Force Form 1160, Military Retirement Action, requesting a voluntary retirement date of 1 March 1995.  The applicant acknowledged that he understood that he must register on the Public and Community Service Registry at the Family Support Center and that his retirement could not be consummated until his registration had been confirmed.  

On 28 February 1995, the applicant was relieved from active duty with a narrative reason for separation of “Voluntary Retirement:  Temporary Early Retirement Authority” and retired, effective 1 March 1995.  He was credited with 15 years and 9 months of active service.  

The remarks section of the applicant’s DD Form 214 indicate he retired as provided by Section 4403 of the Fiscal Year 1993 National Defense Authorization Act (Public Law 102-484) and may qualify for a re-computation of retired pay at age 62 pursuant to section 4464 of the same law, subject to computer matching with the Department of Defense or with other affected agency for verification purposes and to determine eligibility for, or continued compliance with, the requirements of a federal benefit program.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.  

AIR FORCE EVALUATION:

AFPC/DPSOR-RET recommends denial.  Based on the statement contained in the member’s application for retirement, it appears he was properly briefed on the public and community service program, particularly since he was registered.  However, his submitted forms cannot be accepted considering the DMDC does not allow a provision to retroactively register for the program.  Furthermore, the applicant did not provide evidence to confirm he was employed under a Public and Community Service (PACS) eligible agency during the Enhanced Retirement Qualification Period (ERQP).  Lastly, adjustment of the applicant’s retired pay would be inappropriate since he doesn’t qualify until reaching the age of 62, which is not until 14 April 2023.  

In the National Defense Authorization Act for Fiscal Year 1993 (FY93 NDAA), Public Law (PL) 102-484, 23 Oct 1992, Congress enacted TERA, which permitted selected military members to retire early.  The Secretary of Defense had the authority to allow the Service Secretaries to permit early retirement for selected military members having more than 15 but less than 20 year of active service.  Eligible members retired under TERA were allowed to perform public and community service following retirement and receive credit for this service to be used to re-compute 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 applicant retired effective 1 March 1995 under the TERA program.  At the time he had 15 years, 9 months of total active military service (TAFMS).  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 USC Section 1143a.  The law allows no provision to retroactively register for employment in public or community service organizations.  

Military Personnel Flight Letter (MPFL) 93-024, indicate that information would be provided to the member by the Family Support Center (FSC); the member could register for this program at the FSC prior to departure; and that registration “MUST BE CONFIRMED” before members were permitted to out-process.  In addition, members must initiate the registration process prior to applying for the early retirement program.  The applicant signed an AF Form 1160, Military Retirement Action, dated 1 February 1994, to request retirement under the TERA and 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.”

Members were required to turn in proof of public or community service to the Defense Manpower Data Collection (DMDC) team 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; which is the individual’s ERQP.  The applicant retired 1 March 1995, completing 15 years, 9 months of active service; therefore, any creditable service must have been completed prior to 31 May 1999 (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 31 May 2000).

The applicant’s records revealed he was registered through PACS; however, he did not provide any documentation identifying employment during the established reporting period to make a decision.  Additionally, the applicant provided no evidence to support the claim that he was not counseled on the program requirements.  

A complete copy of the AFPC/DPSOR-RET evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant indicates, as annotated on his DD Form 214, he retired as provided under Section 4403 of the Fiscal Year 1993 National Defense Authorization Act, Public Law 102-4784 and he qualifies for a re-computation of his retired pay at age 62.  Specifically, he entered into law enforcement, which is considered a public and community service job, after his discharge.  

He researched the law regarding Title 10 Section 1143a, in search of finding where it indicated there were no provisions allowed to retroactively register for employment in public or community service.  He was unable to find the statement.  However, he found law enforcement to be categorized as an organization that provides public and community service as defined under section 1143a.  Therefore, being employed in law enforcement for 20 years, effective 31 July 1995 and ending 1 August 2015, he met the requirements.  His employment began approximately four months after he retired from active duty military service.  

He cannot locate his copy of the Air Force Form 1160 due to his relocation and the various documents and publication mentioned in the advisory were not available for his review when he retired.  

In accordance with the PACS registry, he was registered and gainfully employed for four years and ten months into his 20 year career as a Law Enforcement Officer, after he retired from active duty.  

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission, to include his 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 (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  The applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the OPR.  Even if we accept for the sake of argument the applicant performed qualifying employment during the Enhanced Retirement Qualification Period, he has provided no evidence whatsoever to indicate that an error on the part of the Air Force precluded him from reporting said employment within a year of the date he would have attained 20 years of total active service in accordance with the guidance published at the time of his retirement.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief sought in this application.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2015-02597 in Executive Session on 8 September 2016 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 16 June 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOR-RET, dated 22 December 
                 2015.
	Exhibit D.  Letter, AFBCMR, dated 8 January 2016.
	Exhibit E.  Letter, Applicant, dated 25 January 2016, 
                 w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.