RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-02958

XXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

His retired pay be adjusted to account for public service he performed as a retiree under the Temporary Early Retirement Authority (TERA) program.

APPLICANT’S CONTENTIONS

He was informed during retirement out-processing that if he went into certain fields of civil employment (law enforcement, medical, etc.), he may qualify for a re-computation of retired pay at age 62, pursuant to the Fiscal Year 1993 (FY93) National Defense Authorization Act (NDAA) (Public Law 102-484).  He was not informed he had to register with the Defense Manpower Data Center (DMDC) and thought this benefit would automatically be applied when he turned 62 years of age.

Upon retirement, he was enrolled in a state Law Enforcement Academy.  He successfully completed the course and applied for employment with the County Sheriff’s Office.  He was employed on 13 May 96, in a part-time capacity, awaiting a full-time position to become available.  On 7 Jan 97, he received a full-time position as a Deputy Sheriff, and remained in that position until he retired on 6 Jan 17.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (E-7).

On 16 Jun 94, according to AF Form 1160, Military Retirement Actions, section IV, Remarks, the applicant acknowledged “I understand that I must register on the Public and Community Service Registry at the TAP [Transition Assistance Program] office and that my retirement cannot be consummated until my registration has been confirmed.”

On 1 Apr 95, the applicant retired under the TERA program and was credited with 19 years and 5 days active service.

According to documentation provided by the applicant, he was employed with the County Sheriff’s Office, as a part-time Deputy Sheriff from 13 May 96 – 6 Jan 97, and as a full-time Deputy Sheriff from 7 Jan 97 – 6 Jan 17.

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

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  Congress enacted the TERA program pursuant to the FY93 NDAA, which permitted selected military members to retire early.  Section 4464 of the FY93 NDAA allowed eligible members retired under TERA to perform public and community service (PACS) following retirement and receive credit for this service to be used to re-compute military retired pay, and where applicable, the Survivor Benefit Plan base amount when the retired member attains or would have attained 62 years of age.

The FY93 NDAA required members retiring under TERA to register in advance of the projected retirement date on the PACS Registry maintained under Title 10 United States Code, Section 1143a.  The law allows no provision to retroactively register for employment in PACS organizations.

Program management was established and announced to the Services through the Assistant Secretary of Defense (ASD) Memorandum, Active Duty Early Retirement Policy Guidance, dated 12 Mar 93, and the ASD Memorandum, Implementing Procedures for Temporary Early Retirement Authority (TERA) Programs, dated 22 Apr 93.  The Air Force also provided specific instructions to the field through a Military Personnel Flight Letter 93-024, Voluntary Early Retirement Program, dated 9 April 93.  The Department of Defense (DoD) also provided specific information on obtaining PACS credit through DoD Instruction 1340.19, Certification of Public and Community Service Employment of Military Retirees, dated 17 Nov 93.

Members were required to turn in proof of PACS to the DMDC team no later than one year after they would have attained 20 years Total Active Federal Military Service had they been continuously on active duty.  The DMDC does not have any record that the applicant applied for PACS.  Had the applicant properly registered within the allotted time period and provided the required documentation, he would have been eligible to receive credit for the time served under the PACS program. 

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 6 Apr 20 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-02958 in Executive Session on 1 Jul 20:

, Chair, AFBCMR
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 28 May 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSR, dated 3 Apr 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 6 Apr 20.

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