ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180001180 APPLICANT REQUESTS: Correction of his records to show he received service credit for 20 years of service and adjustment of his retired pay under the Temporary Early Retirement Authority (TERA). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2339 (Application for Voluntary Retirement), dated 21 February 1996 * Orders Number 073-0017, dated 13 March 1996 * DA Form 2-1 Personnel Qualification Record (PQR), dated 29 March 1996 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 May 1996 * Letter, Social Security Administration, dated 1 April 2014 * Letter, Florida Department of Agriculture and Consumer Services, dated 22 November 2017 * Retiree account statement, dated 1 February 2019 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 (ABMCR) 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 he retired under authorization code 635-200 [sic], section 4403, Fiscal Year (FY) 1993 National Defense Authorization Act (NDAA) (Public law 102-484). He has met the requirements stated at his time of application for early retirement. Although he has not reached the stated age of 62, he is permanently disabled and has served over 14 years of special risk as a law enforcement officer with the State of Florida. In 1996, the Army was offering an opportunity to retire early. Under the agreement, he was to pay a 2% penalty for each year he was short of 20 years, and he had completed 15 years of service. The agreement was the penalty would be paid by him until he reached age 65 or became disabled and served in a high risk employment position for 5 years. He provided the information to reflect his disability since 2013 and his employment in a high risk job for 17 years. 3. A review of the applicant’s service records show the following on: * 15 April 1981 – enlisted in the Regular Army and served through multiple reenlistments and attained the rank/grade of sergeant (SGT)/E-5 * 29 February 1996 – by memorandum, the applicant was informed his request for early retirement was conditionally approved for retirement on 1 June 1996 * the applicant completed registration in the Defense Outplacement Referral System (DORS) * 31 May 1996 – honorably retired from active duty and transferred to the U.S. Army Reserve Control Group (Retired), DD Form 214 shows he completed 15 years, 1 month, and 16 days of net active service, item 28 (Narrative Reason for Separation) shows voluntary early retirement * the applicant is 57 years of age 4. The applicant provides: * DA Form 2339 showing he applied for retirement * Orders Number 073-0017, issued by Headquarters, 101st Airborne Division and Fort Campbell, showing he was released from active duty and placed on the retired list * DA Form 2-1 showing his military history * Social Security Administration letter showing he was receiving full social security benefits based on disability * Florida Department of Agriculture and Consumer Services letter that states the applicant was employed with the Florida Department of Agriculture and Consumer Services as a law enforcement officer from 8 June 2001 to 1 April 2014 and was considered special risk * retiree account statement showing his retirement pay 5. On 20 March 2019, the Office of the Deputy Chief of Staff, G-1 reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Compensation and Entitlements Division opined that, the applicant provided documentation from the Florida Department of Agriculture and Consumer Services listing employment as a Law Enforcement Officer from 8 June 2001 until 1 April 2014. The employment meets the guidelines prescribed in Department of Defense Instruction (DODI) 1332.37 (Programs to Encourage Public and Community Service (PACS) Employment) and Title 10 USC, section 1143a(c). However, none of the employment performed was between the applicant's retirement date (31 May 1996) and his Enhanced Retirement Qualification Period (ERQP) (14 April 2001) to be eligible for service credit. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. On 26 March 2019, the applicant provided a rebuttal to the advisory opinion that states in pertinent part, he was in the police academy from July 1996 to April 1997. He only submitted the documentation for his service with the Florida Department of Agriculture as a State Law Enforcement Officer because his understanding was he had to be disabled and had served in a public service high risk job for at least 5 years to get his retirement adjusted. When he became disabled in 2013, it was not until then he thought about getting his retirement adjusted to reflect the 20 years with the military. In 1996, when TERA was offered, he does not recall ever being given full instructions and deadlines prior to separation, and he does not have any correspondence of all the codes listed in the advisory opinion. He would have applied for the adjustment sooner, if he had a clearer understanding of when and what to do. 7. He also provides a letter from a City of Perry, FL official that states they had verified his dates of employment with the police department from 21 April 1997 to 6 June 2001. 8. 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 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 PACS program. c. At age 62, the TERA retiree was permitted to have their retired pay recomputed and increased accordingly. 9. 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 (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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the advisory opinion finding that none of the employment performed was between the applicant's retirement date (31 May 1996) and his Enhanced Retirement Qualification Period (ERQP) (14 April 2001) to be eligible for service credit, the Board concluded there was insufficient documentary evidence to grant the applicant a 20 year service letter. Additionally, the Board found insufficient justification or evidence to show that an error or injustice was present which would warrant adjusting the applicant’s retired pay under the Temporary Early Retirement Authority (TERA). 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. 7/18/2019 X CHAIRPERSON Signed by: 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 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. TERA was enacted by Congress on 23 October 1992 as part of the NDAA of FY 1993. 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 PACS program. c. At age 62, the TERA retiree was permitted to have their retired pay recomputed and increased accordingly. 3. 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 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 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.