IN THE CASE OF: BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150006134 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 records to show he received service credit for 20 years of service and is entitled to adjustment of his retired pay at age 62 under the provisions of the Temporary Early Retirement Authority (TERA). 2. The applicant states he was part of a reduction of forces in 1995 and had 17 years, 10 months, and 14 days of credible service. He joined the Department of the Army (DA) as a civilian (DAC) on 5 September 1995 and remained employed as a DAC until he left federal service on 8 June 2006, a total of nearly 11 years. He wants his records corrected so that at age 62 his retirement will be recomputed to credit him with a full 50 percent. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), Standard Form (SF) 52 (Request for Personnel Action), and SF Form 50-B (Notification of Personnel Action). 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 was born on 22 November 1954. He was appointed as a Reserve second lieutenant on 30 July 1976. He was promoted to the rank of first lieutenant on 17 September 1977 with a concurrent call to active duty. He served continuously on active duty and was promoted to the rank/grade of major (MAJ)/O-4 in the Regular Army on 1 May 1989. 3. He was retired on 31 July 1995 in the rank of MAJ under the TERA program and he was placed on the Retired List on 1 August 1995. He completed 17 years, 10 months, and 14 days of creditable active service. 4. There is no evidence that shows he ever submitted a DD Form 2676 (Validation of Public or Community Service Employment) to the Defense Manpower Data Center (DMDC) prior to August 2008. 5. He provides an SF Form 50-B, dated 12 June 2006, issued by Human Resources, U.S. Army Test and Evaluation Command (ATEC), White Sands Missile Range, NM, wherein it verified he had been employed by DA from 5 September 1995 through his resignation date of 12 June 2006. 6. In the processing of the case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1. The advisory official recommended granting the applicant relief and 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 (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 DMDC by August 2008. b. Army policy reflects Department of Defense (DOD) policy that such applications should have been submitted within 1 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 31 July 1995. He had 17 years, 10 months, and 14 days of active federal service when he retired. Based on the required 2 years, 1 month, and 16 days to reach 20 years of service, his ERQP is calculated as 16 September 1997. d. The applicant provides documentation from the ATEC listing employment from 5 September 1995 to 12 June 2006. The employment meets the guidelines laid out in applicable statutes under Title 10, U.S. Code (USC), Section 1143a (c) and DOD Instruction (DODI) 1332.37. Only the employment performed between his retirement date and his ERQP can be considered; the period from September 1995 to 16 September 1997 (2 years and 11 days) is considered legitimate for recalculation of his retirement pay. 7. The applicant will reach 62 years of age on 22 June 2016. 8. Title 10, USC, Section 1143a(c) provides the legal authority for the retirement of service members between 20 and 30 years. During the period 23 October 1992 to 1 October 1995, TERA provisions were added that allowed the retirement of 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. 9. DODI 1332.37 (Programs to Encourage PACS Employment) established policy, assigned responsibilities, and prescribed procedures, in part, to encourage and assist separating Service Members requesting retirement with fewer than 20 years of service to register for public and community service employment. 10. Retirees were required to document their employment using DD Form 2676 and submit the form to the DMDC. The timeline to submit PACS applications to the DMDC ended 1 year to the day after the member’s ERQP expired. DMDC is no longer authorized to accept any new PACS applications. The program officially expired in August 2008 (1 year after the last official TERA recipient’s ERQP expired). DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant retired under the TERA on 31 July 1995 with 17 years, 10 months, and 14 days of active service and his ERQP was 16 September 1997. 2. He provides documentation that shows he was employed as a DAC from 5 September 1995 to 12 June 2006; this employment meets the guidelines in DODI 1332.37. Two years and 11 days of this employment was prior to his ERQP. However, as he did not submit the required application within the required timeframe, his record does not reflect that he has 2 years and 11 days of qualifying service between his retirement date of 31 July 1995 and his ERQP of 16 September 1997 (or 19 years, 10 months, and 25 days of service). BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x___ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he qualifies for an adjustment to his retired pay under the TERA ERQP provisions of the law, by recalculating his retired pay to credit him with 2 years and 11 days of qualifying service between his retirement date of 31 July 1995 and his ERQP of 16 September 1997, and adjusting his retired pay accordingly effective the date he reaches age 62. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to adjusting his retirement pay to credit him with 20 years of service. ____________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) AR20150006134 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006134 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1