ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 October 2019 DOCKET NUMBER: AR20170018956 APPLICANT REQUESTS: * re-computation of retirement pay at age 62 under public and community service (PACS) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * email between applicant and the Army Review Boards Agency * Headquarters (HQs), 1st Armored (AR) Division (DIV) Order Number 78-2 * HQs, 1st AR DIV Order Number 91-1 * DD form 214 (Certificate of Release or Discharge) * State of North Carolina (NC) Department of Transportation statement service * Department of State Treasurer Retirement Systems Division Notice of Enrollment 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 at the time he received his retirement order he was in the field for over 30 days and missed his retirement date. This caused him to have 2 days to out-process and return to the continental United States. He received very limited instructions on his retirement benefits, especially the procedures and requirements under the temporary early retirement authority (TERA) act. He was never informed during out-processing that he was required to submit a PACS application under TEAR after completion of five years of service to a federal, state, or local government. He was led to believe that it was automatic, once he reached the age of 62. 3. The applicant provides: a. A State of North Carolina (NC) Department of Transportation employment verification letter, dated 22 September 2017, which shows the applicant had been employed by the state since 22 April 1995. b. Department of State Treasurer Retirement Systems Division Notice of Enrollment, which shows the applicant had been enrolled in the teachers and state employees’ retirement system since 22 November 1995. 4. A review of the applicant’s service record shows: a. With prior service, he enlisted in the Regular Army on 22 November 1983. b. He was released from active duty on 31 December 1994 with an honorable characterization of service under provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 12 (Retirement for Length of Service). His DD Form 214 shows that he completed 15 years, 1 month, and 9 days of active service. 5. In the processing of this case, an advisory opinion, dated 25 June 2019, was received from the Deputy Chief of Staff, G-1, Chief, Compensation and Entitlements Division. The advisory official stated that the office recommends approval of the applicant’s request for a re-computation of his retirement pay at age 62 as he meets the criteria and has provided the appropriate supporting documents. 6. The applicant was sent a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He responded that he agreed with the advisory opinion. 7. By law 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 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. 8. By regulation 15-185 (ABCMR), applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. The applicant’s contentions and the advisory opinion were carefully considered. He completed 15 years, 1 month, and 9 days of service when retiring under TERA. He provided evidence that shows he was employed by an approved organization 22 April 1995 through his ERQD of 22 November 1999, providing him with an additional 4 years, 5 months, and 22 days towards his retired pay. The Board agreed to adjust his retirement pay to show 19 years, 7 months, and 1 day. 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 the Army records of the individual concerned be corrected by showing he properly applied to the Defense Manpower Data Center to adjust his retired on 23 November 1999, and his application was received and processed in a timely manner by the appropriate DFAS office. X CHAIRPERSON Signed by: X 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. Department of Defense (DoD) Instruction 1332.37 dated 29 June 1994, implements by establishing policy, assigning responsibilities, and prescribing procedures to encourage and assist Service members requesting retirement with fewer than 20 years of service to register for public and community service employment. a. Paragraph 6.3.5. DoD approved public and community service (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. b. Paragraph E1.1.4. Public and Community Service Organization. Government or private organizations that provide or coordinate the provision of the following services: * elementary, secondary, or post-secondary school teaching or administration * support of teachers or school administrators * law enforcement * public healthcare * social services * public safety * emergency relief * public housing * conservation * environment * job training * other public and community service not listed above, but consistent with or related to services 3. Department of Defense Financial Management Regulation volume 12, chapter 18 (Military Temporary Early Retirement Authority (TEAR) Program states, Public Law 102-484, National Defense Authorization Act for FY 1993, provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces. Subsection 4403(f) of the Act directs the use of a subaccount within the budget activities in the Active, Reserve and Guard Military Personnel Appropriations for retirement payments to members participating in the Temporary Early Retirement Authority (TERA) Program. The use of the TERA Program was extended through the end of FY 1999 by the National Defense Authorization Act for 1994, Public Law 103-160. 4. 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 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. 5. Public Law 102-484, section 4464, Increased Early Retirement Retired Pay for Public or Community Service provided that: (a) Re-computation of Retired Pay. a. If a member or former member of the Armed Forces retired under Title 10 USC section 4403(a) or any other provision of law authorizing retirement from the Armed Forces (other than for disability) before the completion of at least 20 years of active duty service (as computed under the applicable provision of law) is employed by a public service or community service organization listed on the registry maintained under Title 10 USC section 1143a(c) (as added by section 4462(a)), within the period of the member's enhanced retirement qualification period, the member's or former member's retired or retainer pay shall be recomputed 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. b. For purposes of re-computing a member's or former member's retired pay, the years of the member's or former member's employment by a public service or community service organization during the member's or former member's enhanced retirement qualification period shall be treated as years of active duty service in the Armed Forces; and the member's or former member's years of active duty service shall be deemed as of the date of retirement to have included the years of employment. 6. AR 15-185 (ABMCR) states board members will review all applications that are properly before them to determine the existence of an error or an injustice. The ABMCR decides cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABMCR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//