ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20160012494 APPLICANT REQUESTS: * correction of item 25 (Separation Authority) and Item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show separation under the Temporary Early Retirement Authority (TERA) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 4240 (Data for Payment of Retired Army Personnel), page 1 * eight Defense Finance and Accounting Service (DFAS) Retired/Annuitant Statements * seven Retiree Account Statements * CRS Issue Brief for Congress – The Military Retirement: Major Legislative Issues * DFAS and Army Review Boards Agency (ARBA) letters FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. Items 25 and 28 of her DD Form 214 do not reflect separation under the TERA. Prior to her discharge, she was told she met early retirement under TERA as the authority for her full retirement. It was not until 2015, when she fully understood this error and getting decoding of the authority was difficult. She finally addressed DFAS who directed her to the DD Form 149. Unfortunately, her hospitalizations and use of steroids impaired her ability to address this. b. She is submitting her application for correction of military record under the provisions of Title 10, USC, section 1552, because she had been told that she had met the requirements for TERA. At the time, she was also being medically boarded. She is including copies of her Retired/Annuitant Pay Statements and a congressional brief. She was told she would not lose any of her retirement benefits because under TERA it was just as she went to her 20 year finish mark. Unfortunately, the separation code does not reflect that reality. She was separated from military service with 18 years and 3 months on 27 July 1992. She met the retirement standards. c. In 2005, President Bush signed into law the enclosed CRS Issue Brief for Congress – The Military Retirement: Major Legislative Issues, updated 14 March 2006. Therefore, she is requesting this correction based on the 1 January 2005 and after. One hundred percent disabled retirees are entitled to all of their pay in addition to all of the Department of Veterans Affairs (VA) disability compensation. It is unfortunate that she had to struggle through illness and excessive medications that made it impossible for her to address the matter earlier. She had to move in with family for assistance with becoming healthier and getting off steroids that have affected her physical and mentally. In February 2015, she was able to address obtaining copies of her military personnel records and assistance with the code language use by the military on her DD Form 214. She requested her military personnel official records that arrived at her new address on 18 February 2016. She served and earned the benefit she is requesting. 3. The applicant provides copies of the following: a. DA Form 4240 (Data for Payment of Retired Army Personnel), page 1, wherein he entered a retirement date of 28 July 1995. b. Eight DFAS Retired/Annuitant Statements, dated August, September, and December 1992; April, June, and December 1993; and November and December 1994. The August 1992 statement shows her retired pay account was established effective 28 July 1992. c. Seven Retiree Account Statements, dated 1 May and 1 June 1995, 2 January 2002, 3 January 2005, 3 January 2006, 30 December 2011, and 31 December 2014; showing she was receiving VA disability compensation. d. A CRS Issue Brief for Congress – The Military Retirement: Major Legislative Issues, updated 14 March 2006, which stated, in pertinent part, the Fiscal Year 1993 National Defense Authorization Act (NDAA) (Public Law 102-484, Section 4403) granted temporary authority (which expired on 30 September 2001) for the services to offer early retirement to personnel with more than 15 but less than 20 years of service. TERA was used as a manpower tool to entice voluntary retirements during the drawdown. TERA retired pay was calculated m the usual ways except that there was an additional reduction of one percent for every year of service below 20. Part or all of this latter reduction could be restored if the retiree worked in specified public service Jobs (such as law enforcement, firefighting and education) during the period immediately following retirement, until the point at which the retiree would have reached the 20-year mark 1f he or she had remained in the service. d. A letter, dated 1 June 2015, wherein DFAS advised her they were unable to process her request because any correction of record must be initiated through her branch of service and provided her a DD Form 149. e. A letter, dated 22 July 2016, wherein ARBA acknowledged receipt of her application. 4. Review of the applicant’s service record shows: a. She enlisted in the Regular Army on 22 March 1974. She served continuously on active duty through three reenlistments. b. The complete facts and circumstances surrounding her separation are not available for review by the Board. However, her available record contains the following: (1) A DD Form 214 showing she was honorably retired on 27 July 1992 and she completed a total of 18 years, 3 months, and 8 days of active service. This form also shows in: * Item 25 – AR 635-40, paragraph 4-24e(1) * Item 28 – Physical disability – permanent (2) A Combat-Related Special Compensation packet, dated 3 January 2012, showing she was evaluated by the VA as 30 percent disabling for Cushing’s syndrome secondary to steroid use for asthma including major depression and earaches. c. She reached age 62 on X April 2012. d. She did not provide official documentation from a DoD registered public and/or community service organization. 5. TERA was enacted by Congress on 23 October 1992 as part of the NDAA of FY1993. 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 Enhanced Retirement Qualification Period (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. 6. 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. 7. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. Evidence of record shows she received a permanent retirement due to disability. Her record is void of evidence showing she was retired under TERA prior to be placed on the PDRL. The Board agreed the requested relief is not supported by the evidence of record; therefore, the Board recommended denying the applicant’s request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, U.S. Code (USC), section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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 Public and Community Service (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. 3. 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. 4. Retirees were required to document their employment using DD Form 2676 and submit the form to the DMDC. The timeline to submit PACS applications to the DMDC ended 1 year to the day after the member’s ERQP expired. DMDC is no longer authorized to accept any new PACS applications. The program officially expired in August 2008 (1 year after the last official TERA recipient’s ERQP expired). 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160012494 6 1