IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150004194 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests service credit for qualifying employment during the Enhanced Retirement Qualification Period (ERQP) under the provisions of the 1995 Temporary Early Retirement Authority (TERA) and adjustment of his retired pay at age 62. 2. The applicant states: a. Per instruction for the Defense and Accounting Service website pertaining to the 1993-2001 TERA,, he is submitting a packet of information substantiating and verifying that he worked for the public service company Analytic Services, Inc., from 12 June 1995 through 29 September 2000. b. He recently became aware that his employment with Analytic may qualify him to have his retirement pay recalculated in the future under the terms of the Public and Community Service program (PACS) of TERA. His packet contains a letter from Analytic verifying his employment. He has also submitted a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant provides: * DD Form 214 * self-authored statement * letter from Analytic Services, Inc. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born on 14 November 1957. On 30 June 1995, he retired in the rank/grade of sergeant first class/E-7 under the provisions of TERA. 3. Item 18 (Remarks) of the DD Form 214 he was issued at the time confirms he was retiring under the TERA provisions of the Public Law 102-484 and that he could qualify for recomputation of retired pay at age 62 under the provisions of the Public Law 102-484, Section 4464. 4. He provides a letter from Analytic Services, Inc. confirming he was employed with the company from 12 June 1995 through 29 September 2000 (5 years, 3 months, and 17 days). 5. On 27 April 2015, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army. This official stated: a. The applicant requests an adjustment of retirement pay under the provisions of the TERA. The TERA was offered to Soldiers with at least 15 years of service. TERA permitted Soldiers to obtain employment with a public service (Federal, State or local government) or a recognized community service organization for a period up to the date the member would have attained 20 years of service known as ERQP. Such retirees received service credit for employment with qualified employers and an adjustment in their retired pay at age 62 as long as they applied for adjusted retirement benefits with the Defense Manpower Data Center (DMDC) by August 2008. b. Army policy reflects DOD policy that such applications should have been submitted within one year of the ERQP. TERA participants were given full instructions and application deadlines prior to separation. The applicant did not apply within specified guidelines and cut off dates until after the ERQP expiration date established by DMDC, the agency given responsibility for pay adjustments. c. The applicant retired from the Army under TERA on 30 June 1995. He had 18 years, 10 month, and 14 days of active Federal service when he retired. Based on the required 1 year, 1 months, and 16 days to reach 20 years of service, the applicant's ERQP is calculated as 16 August 1996. d. The applicant provided documentation from Analytic Services, Inc., listing employment from 12 June 1995 to 29 September 2000. The employment meets the guidelines laid out in applicable statutes under Title 10, U.S. Code, section 1143a(c) and Department of Defense Instruction (DODI) 1332.37. e. Though all of the applicant's employment qualifies as legitimate, only the employment performed between the applicant's retirement date and his ERQP can be considered. Although the applicant’s employment with Analytic Services, Inc. totaled 5 years, 3 months, and 17 days, the only period of employment that meets the criteria is the 1 year, 1 month and 16 days that he served between his retirement and his ERQP. f. Recommend approval of applicant's request to adjust his retirement pay at age 62 considering the period of employment that was deemed qualifying and occurred between the applicant's retirement date and his ERQP. 6. The applicant was provided with a copy of this advisory opinion; however, he did not respond. 7. The applicant will turn 62 on 11 November 2019. 8. TERA was enacted by Congress on 23 October 1992 as part of the National Defense Authorization Act of Fiscal Year 1992. a. Its intent was to assist in the military draw-down of forces by permitting selected military members to retire early when they had between 15 and 20 years of service. Additional years of service could be accumulated, even though not serving in military uniform, during a period called ERQP. b. The ERQP was that period from the date of retirement to the date on which the retiree would have attained 20 years of creditable service for the purpose of computing retired pay. The additional years were earned by service in military Reserve Components or employment in qualifying public or community service organizations – called the PACS program. c. At age 62, the TERA retiree was permitted to have their retired pay recomputed and increased accordingly. d. The Secretaries or the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the service. Retirement under this program was not a right, it is granted on an individual basis according to the requirements of the service. e. The TERA program ended on 30 September 2001. 9. DODI 1332.37 (Programs to Encourage PACS Employment) establishes policy, assigns responsibilities, and prescribes procedures to encourage and assist separating Service members, Service members retiring with 20 or more years of service, DOD civilian personnel leaving the Government, and spouses to enter public and community service employment; and encourage and assist Service members requesting retirement with fewer than 20 years of service to register for public and community service employment. a. Section 4.2.2. In order to have their military retired pay and Survivor Benefit Plan base amount (if applicable) recomputed in accordance with DODI 1340.19 (reference (c)), early retirees must be employed with a DOD-registered public and community service organization that provides the services listed in enclosure 1, subparagraphs E1.1.4.1. through E1.1.4.12., or that coordinates the provision of services listed in enclosure 1, subparagraphs E1.1.4.1. through E1.1.4.12. b. Section 6.3.1. Registering for PACS is a requirement for consummation of their early retirement under Public Law 102-484, Section 4403 (reference (a)) or Section 561 of Public Law 103-160 (reference (b)). c. Section 6.3.2. Early retirees must provide a copy of their confirmation Defense Outplacement Referral System (DORS) mini-resume to their servicing military personnel office for filing in their Service record before their final retirement processing. d. Section 6.3.5. DOD-approved PACS employment qualifies the Service member who is retired under Public Law 102-484, Section 4403 (reference (a)) or Public Law 103-160 (reference (b)) for increased retired pay effective on the first day of the first month beginning after the date on which the member or former member attains 62 years of age. The former service member must have worked in DOD-approved PACS employment between the date of early retirement and the date in which he or she would have attained 20 years of creditable service for computing retired pay, and have retired on or after 23 October 1992 and before 1 October 1999. DISCUSSION AND CONCLUSIONS: 1. The applicant retired early on 30 June 1995 with 18 years, 10 months, and 14 days of net active service. To meet the requirements to be given credit for 20 years of service for retired pay purposes, he needed an additional 1 year, 1 month, and 16 days. 2. He provided documentation from Analytic Services, Inc. listing his employment from 12 June 1995 to 29 September 2000. The employment meets the guidelines in DODI 1332.37. Only the employment between his retirement date and his ERQP can be considered. The period of employment that meets the criteria is the 1 year, 1 month, and 16 days from his date of retirement to his ERQP date of 16 August 1996. BOARD VOTE: ___x____ ____x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he submitted a timely request for an adjustment to his retired pay under the TERA ERQP provisions of the law; by recalculating his retired pay to credit him with 1 year, 1 month, and 16 days of qualifying service between his retirement date (30 June 1995) and his ERQP (16 August 1996); and adjusting his retired pay accordingly at age 62. ___________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150004194 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004194 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1