ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 September 2021 DOCKET NUMBER: AR20200009383 APPLICANT REQUESTS: in effect, adjustment of his retired pay under the provisions of the Temporary Early Retirement Authority (TERA), with entitlement to back pay and allowances. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Statement * two DD Forms 214 Report of Separation from Active Duty) and (Certificate of Release or Discharge from Active Duty) * Verification memorandum * DA Form 2339 (Application for Voluntary Retirement) * two letters * Verification of Employment FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 this correction should be made because he is due compensation that was withheld from him with no satisfactory explanation received. He would appreciate receiving credit for his service by correction of his records in order to receive past and future compensation he was due. The delay of this request was the result of him being unaware of the stipulation shown on his DD Form 214 until it was brought to his attention at a veterans’ service meeting. He was unsure of what course of action to take until notified by the Defense Finance and Accounting Service (DFAS). 3. The applicant provides his: * DD Form 214, for the period from 22 May 1973 to 21 May 1976 * Verification memorandum, dated 20 December 1994, verifying he was a member of the Army Reserve Officers Training Corps Program and completed all requirement for commissioning in 1978 * DA Form 2339, dated 27 December 1994 * DD Form 214, for the period from 7 October 1980 to 30 June 1995 * DFAS letter, dated 17 November 2018 * Verification of Employment, dated 9 September 2019, verifying his employment with the Department of Corrections, from 24 July 1996 to 30 August 2001 * Army Review Boards Agency letter, dated 3 March 2020 4. Review of the applicant’s service records show: a. He enlisted in the Regular Army (RA) on 22 May 1973. He was honorably released from active duty on 21 May 1976 and was transferred to the U.S. Army Reserve Control Group (Reinforcement). His DD Form 214 shows he completed 3 years of net active service. b. He reenlisted in the RA on 7 October 1980 and he held military occupational specialty 14J (Early Warning System Operator). He served continuously on active duty in various assignment and through several reenlistments. c. On 27 December 1994, he completed and signed a DA Form 2339. He indicated on the form a desired retirement date of 1 July 1995. d. Orders Number 22-1, issued by Headquarters, First Armored Division, APO AE on 1 March 1995, announced his release from active duty (REFRAD) and placement on the Retired List, in the retired rank of E-7, effective 1 July 1995. e. A Statement of Service – Enlisted Personnel), dated 3 March 1995, shows his status as: * ENL RA – 22 May 1973 to 21 May 1976 * ENL USAR – 22 May 1976 to 21 May 1979 * ENL USAR (DEP) – 5 August to 6 October 1980 * ENL RA – 7 October 1980 to 3 March 1995 f. He was honorably retired on 30 June 1995. He was transferred to the Retired Reserve. His DD Form 214 shows he completed the following: * 14 years, 8 months, and 24 days of net active service this period * 3 years of total prior active service * 3 years, 3 months, and 17 days of total prior inactive service * 6 years, 11 months, and 25 days of foreign service g. Item 18 (Remarks) of his DD Form 214 contains the entry "Member is retiring as provided by Section 4403 or the Fiscal Year 1993 National Defense Authorization Act (NDAA) (Public Law 102-484) and may qualify for a recomputation of retired pay at age 62 (section 4464 of same law)." h. His available DD Form 214 is void of the authority for his separation on 30 June 1995. i. He reached age 62 in August 2015. 5. On 17 November 2018, DFAS advised him of the following: a. They were unable to process his request at that time because he had no Qualified Public Service shown on his retired pay account; and he was not showing on their TERA database for a recomputation at age 62. The Community service (Qualified Public Service) would have had to been reported to Defense Military Data Center and he would have had to complete the community service (Qualified Public Service) prior to the date he would have accumulated 20 years for the computation of retired pay, which was his Enhanced Retirement Qualification Date (ERQD). The community service must be completed by the time he would have accumulated 20 years of service for the recomputation of the retired pay at age 62. b. If he retired under TERA and did not submit your Public and Community Service (PACS) application by the date he would had hit his 21st year of active duty had he remained in the service. He could appeal to his Board of Corrections of Military Records for consideration. 6. 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 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. DoDI Number 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. 8. By law (Title 31, U.S. Code, section 3702 (Barring Status), prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. 9. By regulation (AR 15-185), the ABCMR corrects military records. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. Board members felt an advisory opinion from the Army G-1 was needed in this case. Despite the absence of such opinion, Board members voted to grant relief. a. The applicant retired from the Army under TERA on 30 June 1995. He had 17 years, 8 months, and 24 days of service when he retired. The TERA was offered to Soldiers with at least 15 years of service. TERA permitted Soldiers to obtain 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 known as the Enhanced Retirement Qualification Period (ERQP). Such retirees received 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) until August 2008. b. Army policy reflected DOD) policy that such applications should had been submitted within 1 year of the ERQP. TERA participants were given full instructions and application deadlines prior to separation. The applicant did not apply within specified guidelines and cut-off dates until after the ERQP expiration date established by DMDC, the agency given responsibility for pay adjustments. c. He provided Verification of Employment verifying his employment with the Texas Department of Corrections, from 24 July 1996 to 30 August 2001. The employment meets the guidelines laid out in applicable statutes under Title 10, U.S. Code, section 1143a(c) and DoD Instruction 1332.36. The applicant's ERQP (date he would have attained 20 years of service) was 6 May 1998. Only service in a recognized position served between his retirement date of 30 June 1995 and 6 May 1998 count in any retirement adjustment. Total employment prior to ERQP was 2 years, 10 months, and 6 with the Texas Department of Correction. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * crediting him with 2 years, 10 months, and 6 days of qualifying service between 30 June 1995 and 6 May 1998 for adjustment of his retired pay at age 62 (XX August 2015) * notifying DFAS of this correction for their appropriate action when he reaches age 62 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to full or additional credit of qualifying service for adjustment of his retired pay at age 62 beyond 6 May 1998. 4/21/2022 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. REFERENCES: 1. Title 10, United States Code (USC), 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 AABCMR 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, Temporary Early Retirement Authority (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 Enhanced Retirement Qualification Date (ERQD). 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 Defense Military Data Center (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. Title 31, USC, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 6. AR 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. 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. //NOTHING FOLLOWS//