ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20170018779 APPLICANT REQUESTS: re-computation of his retirement pay at age 62 under the provisions of section 4464 of Public Law 104-484. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from County of El Paso, Human Resources (HR) Department verifying employment * Verification of Employment Letter from Office of the Medical Examiner and Forensic Laboratory 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 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 that he retired under the Temporary Early Retirement Authority (TERA) 1993-2001 program. At the time of his retirement he was informed that at age 62 he would receive credit for 20 years of service as long as he continue working in a civil service capacity, which he did. He would like to update his record to show that after retiring he qualified for a re-computation of retired pay at age 62 as provided by section 4403 of the FY93 National Defense Authorization Act (NDAA) (PL 102-484) since he continued to work as civil servant on a medical-legal and law enforcement capacity. He visited the Fort Bliss Retirement Services just to make sure everything was in order since he will turns 62 early next year. After a long wait he was informed that this program expired and that he should have submitted a form every year after his retirement to receive credit. The Fort Bliss Retirement Services personnel was not able to provide the form number. They stated the form is no longer available and there was nothing else they could do at this time. He explained that was never informed of this requirement or was given any paperwork on this program other than his DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant also provides: a. Letter from County of El Paso, Texas Human Resource Department verified the applicant was a regular full time employee hired on 22 November 1995. He was employed with the Medical Examiners as an Americorp member from 22 November 1995 until 3 July 1998. b. Letter from County of El Paso, Office of the Medical Examiner and Forensic Laboratory verified the applicant was employed as a Chief Investigator-Administrator from 22 November 1995 until 3 July 1998. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 5 September 1978. b. He was approved the Early Retirement Program on 22 February 1995, with retirement date of 1 July 1995. c. On 7 June 1995, the applicant was released from active duty. His DD Form 214 shows he was released for voluntary early retirement under the provisions of AR 635-200, Chapter 12. It shows he completed 16 years, 9 months, and 26 days of active service. 5. On 15 April 2019, the Office of the Deputy Chief of Staff, G-1, Compensation and Entitlements Division rendered an advisory opinion in the applicant’s case. The advisor stated: a. The applicant retired from the Army under Temporary Early Retirement Authority (TERA) on 30 June 1995 with a total of 16 years, 9 months and 26 days of active federal service. Based on the required 3 years, 2 months and 4 days to reach 20 years of service, the applicant's Enhanced Retirement Qualification Period (ERQP) is calculated as 5 September 1998. b. TERA 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) not later than August 2008. c. Recommend approval of the applicant's request for a re-computation of his retirement pay at age 62 under the provisions of section 4464 of Public Law 104-484. The law permitted service members retired under TERA to receive credit toward their retired pay if they obtained 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. 6. Temporary Early Retirement Authority (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. 7. Department of Defense Instruction (DODI) 1332.37 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 recomputed in accordance with DODI 1340.19 (Certification of PACS Employment of Military Retirees), 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 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 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. 8. Retirees were required to document their employment using DD Form 2676 (Validation of Public or Community Service) and submit the form to the Defense Manpower Data Center (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). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the G1 advisory recommendation that the applicant’s request for a re-computation of his retirement pay at age 62 under the provisions of section 4464 of Public Law 104-484 be approved, the Board concluded that granting the applicant’s request should be completed. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by completing a re-computation of the applicant’s retirement pay under the provisions of section 4464 of Public Law 104-484. 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, 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 Army Board for Correction of Military Records (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. Temporary Early Retirement Authority (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. 3. DODI 1332.37 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 recomputed in accordance with DODI 1340.19 (Certification of PACS Employment of Military Retirees), 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 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 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. 4. Retirees were required to document their employment using DD Form 2676 and submit the form to the Defense Manpower Data Center (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). ABCMR Record of Proceedings (cont) AR20170018779 5 1