RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02887

XXXXXXXXXX (MEMBER)	COUNSEL: NONE	

	HEARING: YES	

APPLICANT REQUESTS THAT:

His retired pay be recomputed.  

APPLICANT CONTENDS THAT:

Recomputation of his retired pay was not awarded at age 62.  While on active duty and at the time of his discharge, he was not informed of the public service requirement and the need to complete community service for recomputation of pay at age 62.  In addition, he was not aware of the recomputation provision in the Fiscal Year (FY) 93 National Defense Authorization Act (NDAA), Section 4464, until Mar 16.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a retired Air Force master sergeant.  

On 28 Feb 94, the applicant initialed AF Form 1160, Military Retirement Actions, acknowledging that he understood that he must register for the public service community program at the Family Support Center; however, registration must be verified and that his retirement could not be consummated until his registration had been confirmed.

On 30 Nov 94, the applicant retired under the Temporary Early Retirement Authority (TERA) with 19 years, 0 days, and 3 months of total active federal military service.  The DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his retirement notes in Block 18, Remarks, that he was retiring under the NDAA FY 93 and that he may qualify for recomputation of retired pay at age 62. 

Documentation submitted by the applicant reflects that on 23 Feb 17, he submitted a request to the Defense Finance and Accounting Service (DFAS) for recomputation of his retired pay.  DFAS denied his request because he had no qualified public service on his retired pay account.  Additionally, DFAS stated the applicant would have had to complete the community service prior to the date he would have accumulated 20 years of service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DP2STM recommends denying the application.  Congress enacted TERA under NDAA FY 93.  TERA permitted selected military members to retire early and perform public and community service (PACS) following retirement; and, receive credit for this service to be used to recompute military retired pay when the member attained 62 years of age.  The NDAA required members retiring under TERA to register in advance of the projected retirement date on the PACS registry.  The law allowed no provision to retroactively register.  The Defense Manpower Data Collection team does not have any record of the applicant applying for PACS.  Had the applicant properly registered within the allotted time period, he would have been eligible to receive credit for the time served under the PACS program.  There exists no error or injustice in his records, nor does the applicant provide proof of any error or injustice.

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 7 Aug 18 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.   After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2STM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions. The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-02887 in Executive Session on 4 Sep 18:

Panel Chair
Panel Member
Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 19 Jun 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM dated 28 Jun 18.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 7 Aug 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.