RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04105

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He receive credit for his public and community service (PACS) in computing his military retired pay under the Temporary Early Retirement Authority (TERA).  

APPLICANT’S CONTENTIONS

In accordance with Section 4464 of the FY93 National Defense Authorization Act (NDAA), eligible military members retired under TERA were allowed to perform PACS following retirement and receive credit for this service to re-compute military retired pay at age 62.  Following his 1 July 1995 retirement under TERA, from Oct 1997 to present, he has been employed by a public school as an Air Force Junior Reserve Officers’ Training Corps (AFROTC) instructor.    

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force major (O-4).  

On 28 July 1994, 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 FSC [Family Support Center] and that my retirement cannot be consummated until my registration has been confirmed.”

On 28 July 1994, according to Transition Assistance Program (TAP) Counseling memorandum, the applicant acknowledged he understood the TAP information and the availability of this counseling to assist him in the transition process from active duty to the civilian sector through the TAP.  

On 9 August 1994, the applicant received a TAP briefing.   

On 30 June 1995, according to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant was separated from active duty for the purpose of retirement.  Item 18 (Remarks) states “Member is retiring as provided by Section 4403 of the FY93 National Defense Authorization Act (PL 102-484) and May Qualify for a Recomputation of Retired Pay at Age 62 Pursuant to Section 4464 of the Same Law.”  He was credited with 15 years, 9 months, and 6 days of active 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/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 March 1993, and the ASD Memorandum, Implementing Procedures for Temporary Early Retirement Authority (TERA) Programs, dated 22 April 1993.  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 November 1993.

Members were required to turn in proof of PACS to the Defense Manpower Data Center (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.  This date is referred to as the individual’s Enhanced Retirement Qualification Period (ERQP).  The applicant retired on 1 July 1995 and was credited with 15 years, 9 months, and 6 days of active service; therefore, any creditable service must have been completed prior to 25 September 1999 (the end of his ERQP).  Based on the reporting instructions established by the DMDC, the applicant was required to submit record of the creditable service within a year of that point (or 25 September 2000). 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, she 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 25 June 2020, for comment (Exhibit D), and the applicant replied on 28 July 2020.  In his response, the applicant contended the Air Force failed to provide him with proper notification about the PACS requirements in accordance with DoDI 1340.19, Certification of Public and Community Service Employment of Military Retirees, and DoDI 1332.37, Program to Encourage Public and Community Service Employment.  Additionally, there was no briefing or information given on PACS or the PACS requirements when he was processed at his Air National Guard base, nor any checklist given to ensure all the retirement topics were covered.  Even if the Air Force did not have a PACS application on file, they certainly should have known he complied with the PACS requirements by 25 September 2000, by becoming an Air Force JROTC instructor, since they paid a portion of his salary.  In support of his contentions, the applicant submitted excerpts of the aforementioned Instructions, a copy of Federal Register/Vol 53, No. 153, Program to Encourage Public and Community Service Employment, a copy of his DD Form 214, and a copy of DD Form 2767 (1 July 1995) [sic] submitted as proof of his JROTC employment to the Air Force before 15 Sep 2000. 

The applicant’s complete response is at Exhibit E.

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. The applicant’s response to the advisory opinion is duly noted; however, although he alleges he was never briefed on the procedures written in the advisory opinion, the evidence indicates that he acknowledged, via AF Form 1160, that he had to register for PACS.  Based upon the presumption of regularity in the conduct of governmental affairs, and without substantial evidence to the contrary, the Board must assume the applicant was properly briefed about the requirements of the program and as noted above, the applicant did not turn in proof of PACS to the DMDC within the allotted time frame.  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-2019-04105 in Executive Session on 20 August 2020:

, Panel Chair 
, 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 12 August 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSR, dated 30 March 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 25 June 2020.
Exhibit E:	Applicant’s response, w/atchs, dated 28 July 2020.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2019-04105, as required by AFI 36-2603, paragraph 4.11.9.