RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-01112

XXXXXXXXXXXX	COUNSEL:  NONE
	
 	HEARING REQUESTED:  NO	

APPLICANT’S REQUEST

His retired pay be adjusted at age 62 under the Temporary Early Retirement Authority (TERA) program. 

APPLICANT’S CONTENTIONS

During his retirement briefing, he was informed that his retired pay would be 40 percent of his base pay, and when he turned 62 it would increase to 50 percent.  However, it has not increased.  Had he known his retired pay would not increase, he would have waited to until 1995 to retire.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force technical sergeant (E-6).

On 1 July 1993, 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 and that my retirement cannot be consummated until my registration has been confirmed.”

On 30 April 1994, according to DD Form 214, Certificate of Release or Discharge from Active Duty, he was released from active duty for the purpose of retirement.  Item 18. Remarks, reflects “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 18 years, 5 months, and 7 days of active service.

On 1 May 1994, according to Special Orders No. XX-XXXXXX, dated 17 July 1993, the applicant retired.

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 Fiscal Year 1993 (FY93) National Defense Authorization Act (NDAA), which permitted selected military members to retire with at least 15, but less than 20 years of active military service.  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 recompute 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.  PACS job vacancies included education, conservation, environmental protection, law enforcement, and public health care positions.
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 provided specific instructions to the field through a Military Personnel Flight Letter 93-024, Voluntary Early Retirement Program, dated 9 April 1993.  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.

The NDAA required members retiring under TERA to register in advance of the projected retirement date on the PACS Registry maintained under 10 U.S.C., Section 1143a.  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 1 May 1994 with 18 years, 5 months, and 7 days of active service; therefore, any creditable service must have been completed prior to 24 November 1995 (the end of his ERQP).  Based on reporting instructions established by the DMDC, the applicant was required to submit record of the creditable service within a year of that point (24 November 1996).  The DMDC does not have any record of the applicant’s registration or completion of PACS.  The law allows no provision to retroactively register for employment with PACS organizations. 

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 28 October 2021 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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 provided no evidence that he registered for the PACS program prior to retirement, that he completed the required public or community service, or that he provided the required proof of service to DMDC within the established timeframe.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2021-01112 in Executive Session on 18 August 2022:

, 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 18 February 2021.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSR, dated 27 October 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 28 October 2021.

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.