RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02206 COUNSEL: NONE HEARING DESIRED: YES ____________________________________________________________ APPLICANT REQUESTS THAT: His retired pay be recomputed to remove the reduction factor applied to his retired pay (required as a result of his retirement under the Temporary Early Retirement Authority (TERA), Public Law 102-484, Section 4403), based on his subsequent performed active service. ____________________________________________________________ APPLICANT CONTENDS THAT: Since his retirement under the TERA, he has served enough active duty tours in the Air Force Reserve (AFRES) to equate to over 20 years of active duty service. When he joined the AFRES, he was told that his retirement pay would be adjusted based on any additional active duty service performed. He assumed that adjustment would include the elimination of the 4.75% TERA penalty; however, no one informed him otherwise. He believes he should be entitled to his full retired pay just like any other lieutenant colonel who has served 20 years. In support of his appeal, the applicant submits copies of his DD Forms 214, Certificate of Release or Discharge from Active Duty, active duty orders, service history, and a Reserve point credit summary. The applicant’s complete submission, with attachments, is at Exhibit A. ____________________________________________________________ STATEMENT OF FACTS: The applicant was placed on the retired list on 1 September 1998, pursuant to the provisions of TERA after serving 15 years, 1 month, and 16 days of active service. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B. ____________________________________________________________ AIR FORCE EVALUATION: DFAS-RPB-JBJE/CL recommends denial. DFAS states that in order to assist the Services in drawing down manpower, Congress passed the TERA. This authority permitted a member with at least 15, but less than 20 years of active service to request early retirement. There was a penalty associated with the TERA. The retired pay would be computed based on the actual years of active service performed and this computation would then be reduced by 1/12th of 1 percent for each month of active service less than 20 years of active service normally required for retirement. Each member retiring under TERA was advised of the opportunity to perform public and community service in the medical, education, or law enforcement fields that would be utilized to recompute the retired pay upon reaching age 62. The public and community service would be credited as active military service and would serve to increase the service totals and reduce or remove the reduction factor. This public and community service was required to be completed by the date the member would have attained 20 years of active service and must be reported to the TERA Program Manager at the Defense Manpower Data Center. The Office of the Assistant Secretary of Defense issued guidance, dated 12 March 1993, for the use of each Service to counsel members regarding the provisions of TERA, including examples of the initial computation and the recomputation at age 62. The guidance specified that public and community service would be utilized to reduce the reduction factor. It did not authorize the use of subsequently performed active service to reduce the reduction factor. The Department of Defense General Counsel (DoD/GC) issued an opinion, dated 25 July 2003, that specified that active service performed subsequent to retirement could not be utilized to reduce the reduction factor. DFAS indicates there is no record that the applicant performed any public and community service before the date that he would have attained 20 years of active service. Following his retirement, he entered the AFRES in 2004. There is no record that he ever made an attempt to confirm his AFRES service would reduce the TERA reduction factor, he merely preceded based upon his assumption. To permit the applicant to reduce his TERA reduction factor based on his subsequent performed active service would be contrary to the DoD guidance and the legal opinion issued prior to the date that he returned to active service. A complete copy of the DFAS evaluation is at Exhibit B. ____________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: A copy of the Air Force evaluation was forwarded to the applicant on 15 July 2011 for review and comment within 30 days (Exhibit C). As of this date, this office has received no response. ____________________________________________________________ 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 in judging the merits of the case; however, we agree with the opinion and recommendation of DFAS-RPB-JBJE/CL and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ____________________________________________________________ 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 AFBCMR Docket Number BC-2011-02206 in Executive Session on 23 February 2012, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-02206 was considered: Exhibit A. DD Form 149, dated 9 Jun 11, w/atchs. Exhibit B. Letter, DFAS-RPB-JBJE/CL, dated 1 Jul 11. Exhibit C. Letter, SAF/MRBR, dated 15 Jul 11.