IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150009253 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x_____ ____x___ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150009253 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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. IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150009253 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, in effect, service credit during the enhanced retirement qualification period (ERQP) and adjustment of his retired pay under the provisions of the Temporary Early Retirement Authority (TERA). 2. The applicant states he volunteered and completed public and community service as the treasurer of Parham Volunteer Fire Department. He was unaware that he should have reported this public service as part of the ERQP. He was not informed of the requirement for reporting public and community service hours as a TERA retiree. He retired from the Mississippi Army National Guard (MSARNG) under TERA in 1994. In January 1995, he was elected treasurer. He served in this capacity until January 2002. His request is to adjust his years of service based on his volunteer work toward his military retirement at age 62. He was unaware of the program expiration date. 3. The applicant provides his 1994 ARNG retirement orders and a self-authored statement attesting to his volunteer service with the Parham Volunteer Fire Department. 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 in October 1951. 3. He enlisted in the MSARNG on 25 January 1971 and he held military occupational specialty 11E (Armor Crewmember). The ARNG honorably discharged him on 12 December 1980. 4. He was appointed as a Reserve commissioned officer of the MSARNG and executed an oath of office on 9 March 1981. He entered active duty in the active guard reserve program. He served in a variety of assignments and was promoted to major (MAJ). 5. He retired on 31 December 1994 under TERA and the ARNG placed him on the retired list in his retired rank of MAJ on 1 January 1995. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 14 years and 6 days of active service and had 3 years, 8 months, and 26 days of prior active service for a total of 17 years, 9 months, and 2 days of active service * Item 18 (Remarks) confirms the applicant was retiring under the TERA provisions of the law and that he may qualify for recomputation of his retired pay at age 62 6. An advisory opinion was obtained on 12 April 2016 from the National Guard Bureau, Personnel Policy Division. The opinion stated: a. The applicant retired under the TERA on 31 December 1994. Soldiers retired under TERA were eligible to participate in the Public and Community Service (PACS) Program. Military services were required to provide each retiree with a copy of DD Form 2676 (Validation of Public or Community Service Employment) and explain the reporting requirements and procedures for enhanced retirement credit per Department of Defense Instruction (DoDI) Number 1340.19 (Certification of Public and Community Service Employment of Military Retirees), Section 5.1. There is no evidence showing at the time of retirement the applicant was counseled concerning the PACS program. b. In order to have military retired pay recomputed in accordance with the PACS Program, early retirees must be employed with a DoD registered public and community service organization as per DoDI Number 1332.37 (Programs to PAC Employment), Section 4.2.2. A representative from the National Guard Bureau contacted the applicant and requested evidence of his community service. As he did not provide supporting evidence to validate his PAC employment, his request to add community service time should be disapproved. c. This advisory opinion was coordinated with National Guard Bureau Retirement Services Office and the MSARNG concurs with this recommendation. 7. The Board provided the applicant with a copy of this advisory opinion. He responded via fax and provided a photograph of a sign that reads "Parham Fire Station - Hatley Fire Department" as well as excerpts from what he described as a defunct newspaper. He provided a notarized letter from an individual who verified that the applicant worked as a treasurer in January 1995 and to the best of his knowledge, he resigned in January 2002. REFERENCES: 1. Title 10, U.S. Code, Section 3914 provides the legal authority for the retirement of service members between 20 and 30 years. During the period 23 October 1992 to 1 October 1995, TERA provisions were added that allowed the retirement of service members with at least 15 but less than 20 years. Under the TERA, the PACS program was created and allowed TERA retirees to apply some post-retirement employment from DoD pre-approved employers towards their military retired pay at age 62. PACS credit was authorized up to the time the service member would have attained 20 years of military service had they remained on active duty. This period is called the ERQP. 2. DoDI 1332.37 established policy, assigned responsibilities, and prescribed procedures to encourage and assist separating service members. It was created to encourage and assist service members requesting retirement with fewer than 20 years of service to register for public and community service employment. Then upon verification, their years of employment with a PACS may be applied toward their retired pay. 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, 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 or Section 561 of Public Law 103-160. 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 or Public Law 103-160 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 their 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 but before 1 October 1999. DISCUSSION: 1. The applicant served on active duty from 16 September 1981 to 30 June 1998. He retired early with 17 years, 9 months, and 2 days of cumulative active service. 2. He did not provide official documentation from a DoD registered public and/or community service organization. He provides a notarized statement from an individual who states the applicant worked as a treasurer with a local fire department from January 1995 to January 2002. This letter by itself does not comply with the program's registration and administrative requirements. 3. As the letter does not meet the accounting requirements of the PACS program and in the absence of documentary evidence from an official community or service organization registered with the DoD, the applicant is ineligible for recalculation of his retired pay at age 62. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009253 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009253 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2