IN THE CASE OF: BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150005450 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 recalculation of his retired pay based on the provisions of Public Law 102-484. In effect, he requests adjustment of his retired pay under the provisions of the Temporary Early Retirement Authority (TERA). 2. The applicant states: * he retired early in July 1997 and served in public education after his retirement from 1 July 1998 to 30 June 2013 * a portion of the public education service should be credited toward his military retirement as it fell within the enhanced retirement qualification period (ERQP) * he was not briefed about the dynamics of this program and he could not have known the requirements or provided forms, received guidance, etc. * he was an Army National Guard (ARNG) member, on active duty under Title 10, which by itself presented some difficulties in receiving accurate information * he is meticulous when it comes to paperwork and had he been briefed on the forms and requirements, he would have submitted the proper forms 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Statement from Dover School District * School District staff printout * His school retirement plan history information * Correspondence from the Defense Finance and Accounting Service (DFAS) * Email exchange with the Arkansas ARNG (ARARNG) * Printout of Title 10, U.S. Code, section 1143(a) * Department of Defense Instruction (DODI) 1340.19 (Certification of Public and Community Service Employment of Military Retirees) * Sample DD Form 2676 (Validation of Public or Community Service Employment) 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 October 1953. 3. He enlisted in the ARARNG on 12 January 1973. He entered active duty for training on 23 March 1973 and completed required training for award of his military specialty. 4. He was honorably released from ADT on 4 August 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 4 months and 12 days of active service. 5. He was discharged from the ARNG on 11 January 1980. His National Guard Bureau Form 22 (Report of Separation and Record of Service) show she completed 7 years of ARNG service. 6. He enlisted in the ARARNG on 18 April 1980 and he entered active duty on 19 June 1980. He served through multiple extensions in a variety of assignments and he was promoted to sergeant major (SGM)/E-9. 7. He retired on 31 July 1997 and he was placed on the Retired List in his retired rank/grade of SGM/E-9 on 1 August 1997. His DD Form 214 shows he retired by reason of voluntary early retirement after completing 17 years, 1 month, and 12 days of active service and 8 months and 8 days of prior active service, for a total of 17 years, 9 months, and 20 days. 8. Had the applicant remained on active duty, he would have completed 20 years of active service on 18 May 2000. 9. He provides: a. A letter from the Dover School District, Dover, AR confirming he was employed as a full time, contracted employee of the Dover School District from July 1998 and he was employed for 3 consecutive years until June 2001. b. Dover School District staff directory listing his name and Arkansas Teacher Retirement System printout. c. A letter, dated 24 September 2014, from DFAS informing him that DFAS did not have his qualifying public service on file and directing him to address this issue with his branch of service. d. Email exchange and letters with/from the U.S. Army Human Resources Command and ARARNG G-1 personnel in relation to the recalculation of his retired pay. 10. On 27 July 2015, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army. This office 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 the 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 31 July 1997. He had 17 years, 1 month, and 12 days of active Federal service when he retired. Based on the required 2 years, 10 months, and 18 days to reach 20 years of service, the applicant's ERQP is calculated as 18 May 2000. (Note: He actually had 17 years, 9 months, and 29 days of total active service. The advisory opinion neglected to add his prior active service to his net active service for the period ending 31 July 1997.) d. The applicant provided documentation from the Dover School System in Arkansas listing employment from 1 July 1998 to 1 June 2001. 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. In this case, the period from 1 July 1998 to 18 May 2000 (1 year, 10 months, and 18 days) is considered legitimate for recalculation of his retirement pay. The applicant has submitted sufficient documentation to prove that his employment time is more than enough to satisfy the necessary requirements to reach 20 years of service. 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. 11. The applicant was provided with a copy of this advisory opinion. He acknowledged receipt and requested favorable consideration based on that opinion. 12. The applicant turned 62 in October 2015. 13. 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 Public and Community Service (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. 14. 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 PACS employment and to encourage and assist Service members requesting retirement with fewer than 20 years of service to register for PACS 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 PACS 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 31 July 1997 with 17 years, 9 months, and 20 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 2 years, 3 months, and 10 days. 2. He provided documentation from the Dover School District listing his employment from 1 July 1998 to 1 June 2001. The employment meets the guidelines in DODI 1332.37. Only the employment between his retirement date and his ERQP, however, can be considered. The period of employment that meets the criteria is the 1 year, 10 months, and 18 days (from 1 July 1998 to 18 May 2000) from his date of retirement to his ERQP date of 18 May 2000. 3. As a matter of equity, it would be appropriate to have the applicant's records corrected to show credit for the 1 year and 10 months and 25 days of qualifying service between his retirement date and his ERQP of 18 May 2000. 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 qualified for an adjustment to his retired pay under the TERA ERQP provisions of the law and by recalculating his retired pay to credit him with 1 year, 10 months, and 18 days of qualifying service between his retirement date (31 July 1997) and his ERQP (18 May 2000) 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) AR20150005450 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005450 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1