BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150014873 BOARD VOTE: ___x______ __x_____ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150014873 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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: a. showing he completed and submitted a DD Form 2676 to the Defense Manpower and Data Center on 8 September 1997, b. showing he applied to the Defense Manpower and Data Center for adjusted retirement benefits based on 2 months of qualifying service on or before 24 July 1998 and his application was approved and processed in a timely manner, and c. adjusting his retired pay at age 62 accordingly. ___________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. BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150014873 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: a. When he out-processed at Fort Riley in 1996, the out-processor failed to inform him of the requirement to report his subsequent State and/or Federal government employment to the Defense Manpower and Data Center (DMDC). Therefore, he did not report his qualifying 2 years of State and Federal employment to the DMDC because he was not informed of the requirement. b. He was merely told his retired pay would be recalculated at age 62. 3. The applicant provides: * self-authored letter, dated 1 September 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * email from retirement services officer * proof of employment with the State of South Carolina and Federal government 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 appointed as a second lieutenant in the U.S. Army Reserve effective 11 October 1977. He served on active duty from 15 January 1978 through 14 January 1981. He reentered active duty service on 25 July 1981. On 31 August 1996, he retired in the rank of lieutenant colonel under the TERA after completing 18 years, 1 month, and 6 days of creditable active service. 3. Item 18 (Remarks) of his DD Form 214 states he is retiring as provided by Section 4403 or the Fiscal Year 1993 National Defense Authorization Act (Public Law 102-484) and may qualify for recomputation of retired pay at age 62 (Section 4464 of same law). 4. He provided: a. documentation from the South Carolina Public Employee Benefit Authority listing 2 months of employment beginning on 8 September 1997 and b. a letter from the Department of the Treasury, dated 1 September 2015, showing he is an active employee with the Housing and Urban Development as a Deputy Director. His starting date was 14 March 1999. 5. He also provided a self-authored letter, dated 1 September 2015, stating: a. He wants his records to reflect that he worked nearly 17 years in the Federal government and in the State government of South Carolina since he retired from the Army in 1996. b. He is requesting correction of his records so he is eligible to receive 50 percent of his Army pay at the time of his retirement from the Army when he reached the age of 62 as opposed to the 46 percent he currently receives. c. He reached age 62 in September 2015. He provided Federal and State government employment verification and email from the retirement services officer. The email marks the exact time he became aware that he needed to report his Federal and State government employment to the DMDC. d. He served 18 years, 2 months, and 6 days of active duty. He is currently serving in the grade of GS-15 as the Deputy Director of the Real Estate Assessment Center with the Department of Housing and Urban Development. 6. His Enhanced Retirement Qualification Period (ERQP) (period up to the date he would have attained 20 years of service) is calculated as 24 July 1998. There is no evidence showing he applied for adjusted retirement benefits with the DMDC within 1 year of his ERQP. 7. A staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, on 28 September 2016. However, this advisory opinion is not available for review. 8. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He responded on 8 October 2016 and stated he totally disagreed with the advisory opinion for the following reasons: a. Evidently the analyst who prepared the advisory opinion appears to have assumed the required separation counseling and briefings were provided to him. They were not, which placed him at a disadvantage and therefore caused an adverse effect upon his retired pay, which constitutes harm to him. b. The advisory opinion states the requirement for Public and Community Service registration is clearly listed in his military order, dated 14 June 1996. The order also included instructions which state the Soldier must receive the required presentation counseling (minimum of 90 days prior to retirement date) in compliance with Public Law 102-484. No one provided the required presentation counseling, which constitutes non-compliance with Public Law 102-484. c. He was processed out of the service at Fort Riley as any other Soldier who was receiving a full retirement (not an early retirement) who had completed his/her enlistment and was leaving military service. There was absolutely no mention of any special requirements to him concerning the conditions of his early retirement other than the master sergeant who did the out-processing looking at his DD Form 214 and simply informing him of the statement on his DD Form 214 which states he may qualify for recomputation of retired pay at age 62. He further instructed all those who were out-processing to have attested true copies of their DD Forms 214 made. He followed his instructions precisely, just as he remembered for over 19 years him stating that his retired pay would be recomputed if he worked a public service job. That is one of the primary reasons he sought and acquired a public service job. He submitted definitive proof concerning his public service agency employment. d. He finds it troubling and disturbing that he is in this situation for four basic reasons. First, he finds it troubling he was not provided the required counseling concerning the requirements prior to his retirement. The Army that he knows and remembers prided itself in taking care of its Soldiers and because he did not receive the presentation counseling required by Public Law 102-484, he submits that the Army failed him and failed to live up to its own self-imposed standard of taking care of its Soldiers. He should not suffer harm because the Army failed to perform presentation counseling. Second, in his case the Army did not comply with the requirements of Public Law 102-484 by failing to provide the presentation counseling. Now an analyst for the Office of the Deputy Chief of Staff, G-1, is suggesting a bureaucratic recommendation for disapproval of a benefit that he earned and made numerous sacrifices to earn. Third, it has taken over a year to receive a response to his request and the response is potentially troubling. Fourth, the analyst mentioned a DD Form 2671. He has never heard of such a form. Even when he tried to find it on the Internet, it only comes up as a disbursing office automated teller machine cash transaction ledger. Since the analyst mentions a form that apparently is no longer used for what it may have once been used for, it gives one the impression that the analyst may intentionally want to make it difficult for him to receive the retired pay recomputation benefit. If that is the case, this seems similar to the intentional efforts the Department of Veterans Affairs employed to make it as difficult as possible to veterans, American patriots, to receive the benefits they have earned, which shamefully harmed countless American veterans. He truly hopes that is not the case. e. He strongly urges the Board not to adopt the advisory opinion, but instead to do the right thing and grant full retired pay recomputation. 9. A second staff advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1, dated 25 October 2016, which states: a. That office recommends approval of the applicant's request to adjust his retired pay at age 62 by 2 months of additional service by awarding the period of qualifying employment which occurred between the applicant's retirement date and his ERQP. b. Official Army personnel records indicate the applicant retired from the Army under the TERA on 31 August 1996 after completing 18 years, 1 month, and 6 days of active Federal service. Based on the required 1 year, 10 months, and 24 days to reach 20 years of service, his ERQP is calculated to have been 24 July 1998. c. The applicant, a retired Regular Army lieutenant colonel who retired under the TERA in 1996, requests an adjustment to his retired pay under the provisions of section 4464 of Public Law 102-484. Section 4464 authorized recalculation of retired pay at age 62 for certain public or community service employment performed after retirement and prior to the date the Soldier would have otherwise completed 20 years of active service. This period was termed the ERQP and the employment with the public (Federal, State, or local government) or recognized community service organization must have been listed on the registry of such organizations maintained by the DMDC. However, in order for retirees to receive the service credit for employment with qualified organizations and a retired pay adjustment, they must have completed and submitted a DD Form 2676 (Validation of Public and Community Service Employment) to DMDC at the beginning of the employment and at the end of employment or the end of the ERQP, whichever came first. DMDC would afterward notify the Defense Finance and Accounting Service to effect the increase in retired pay. d. Department of Defense Instruction (DODI) 1332.37 (Program to Encourage Public and Community Service Employment) and DODI 1340.19 (Certification of Public and Community Service Employment of Military Retirees) (cancelled 31 January 2013) provided Department of Defense policy for implementing section 4464 of Public Law 102-484. Due to the length of service of Soldiers retired under the TERA from 1993 through September 2002, the latest ERQP would have been in late 2007. Consequently, DMDC has ceased processing certifications for public and community service employment pursuant to section 4464 and the applicable DODIs. e. Army policy reflected Department of Defense policy requiring the forms to be submitted within 1 year of the ERQP. Army transition centers provided Soldiers retiring under the TERA with full instructions and applicable deadlines prior to separation. In the instant case, the applicant did not apply within specified guidelines and cutoff dates until after the ERQP expiration date. f. The applicant provided documentation from the South Carolina Public Employee Benefit Authority listing 2 months of employment beginning 8 September 1997 and a letter from the U.S. Department of Treasury (where he is currently employed) listing more than 16 years of employment beginning 14 March 1999. Each employment meets the criteria specified under the law and DODI 1332.37. However, while all of the applicant's employment qualifies as legitimate, only the employment performed between the applicant's retirement date and his ERQP may be considered. In this case, the applicant accumulated 2 months of qualifying employment. 10. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He did not respond. REFERENCES: The TERA was offered to Soldiers with at least 15 years of service. The 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 ERQP. Such retirees receive 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. DISCUSSION: 1. The applicant retired under the TERA on 31 August 1996 after completing 18 years, 1 month, and 6 days of active Federal service. 2. The 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 ERQP. Such retirees receive 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. 3. Although he did not apply for adjusted retirement benefits within specified guidelines and cutoff dates until after the ERQP expiration date established by DMDC, he provided documentation from the South Carolina Public Employee Benefit Authority listing 2 months of employment beginning 8 September 1997. 4. Since this period of employment was performed between his retirement date and his ERQP (24 July 1998), and per the favorable advisory opinion recommendation, he is eligible for adjusted retirement benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014873 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014873 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2