IN THE CASE OF: BOARD DATE: 22 August 2023 DOCKET NUMBER: AR20220011793 APPLICANT REQUESTS: recalculation of his retirement pay at age 62 based upon his Public and Community Service (PACS) under the Temporary Early Retirement Authority (TERA). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Orders Number 055-412, 20 March 1998 • Orders Number 057-048, 23 March 1998 • North Dakota Army National Guard (NDARNG) Memorandum, Subject: Retirement Processing at Fort Riley, KS, 24 March 1998 • DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 31 July 1998 • U.S. Army Retired Reserve (USAR) Certificate, 31 July 1998 • Army Board for Correction of Military Records (ABCMR) Docket Number AR20220003591 Letter Close, 4 October 2022 • Employment Verification Letter, dated 24 October 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in pertinent part, he would like his retired pay adjusted given the time he worked for the Minnesota State Department of Transportation from 9 June 1998 to 26 May 1999. He was told that if he worked for a public and/or community service organization that he would qualify for a pay adjustment when he turned 62 years old in accordance with TERA. 3. A review of the applicant's available service record reflects the following: a. After serving as an enlisted Soldier in the Regular Army, U.S. Army Reserve (USAR), and the Army National Guard (ARNG), on 30 July 1984, he was appointed a commission officer with the ARNG. b. On 1 May 1988, the applicant entered active duty. c. On 20 March 1998, the Office of the Adjutant General, State of North Dakota issued Orders Number 055-413 releasing the applicant from active duty on 31 July 1998 and placing him on the retired list, effective 1 August 1998. d. DD Form 214, ending 31 July 1998 reflects an honorable retirement for voluntary early retirement. (1) Item 12 (Record of Service) shows active service from 1 May 1988 to 31 July 1998 for a net active service this period of 10 years and 3 months, and total prior active service of 6 years, 4 months, and 5 days. In total, he served 16 years, 7 months, and 5 days of active Federal service. (2) Item 18 (Remarks) provides that the applicant retired under Section 4403 of the Fiscal Year 1993 (FY93) National Defense Authorization Act (NDAA) Public Law (PL) 102-484 and may qualify for re-computation of his retired pay upon reaching age 62 (Section 4464 of PL 102-484). Based on the required 3 years, 4 months, and 24 days, the applicant's Enhanced Retirement Qualification Period (ERQP) is calculated as 24 December 2001. e. ABCMR Docket Number AR20220003591 was administratively closed on 4 October 2022, stating, in effect, the application submitted does not contain evidence of his employment with a Department of Defense (DOD) Public and Community Service (PACS) registered agency nor the Minnesota Department of Transportation. Without detailed employment verification i.e., W-2s or a letter reflective of his employment with an agency that meets the guidelines prescribed in Department of Defense Instruction (DODI) 1332.37 (Program to Encourage Public and Community Service Employment) and section 4464 of Public Law 102-484, the ABCMR is unable to take properly address your request. 4. The applicant provides the following: a. Orders Number 055-412, dated 20 March 1998, from the Office of the Adjutant General, State of North Dakota reassigning him to the U.S. Army Transfer Point, Fort Riley, KS, for transition processing with a report date of 12 May 1998. b. Orders Number 057-048, dated 23 March 1998, from the Office of the Adjutant General, State of North Dakota ordering him to temporary duty for Retirement processing to Grand Forks, ND, and Fort Riley, KS, from 11 May 1998 to 12 May 1998. c. NDARNG Memorandum, Subject: Retirement Processing at Fort Riley, KS, 24March 1998 as supporting evidence of his out processing for retirement on 12 May 1998. d. USAR Certificate, dated 31 July 1998 as supporting evidence of his retirement. e. Employment Verification Letter, dated 24 October 2022 verifying his employment with the Minnesota Department of Transportation as an Agency Training Manager from 9 June 1998 to 26 May 1999. 5. On 25 April 2023, in the processing of this case, the Office of the Deputy Chief of Staff, G-1, provided an advisory opinion recommending disapproval of the request. The advisory official referenced a. Title 10, United States Code, Section 1143a, and Department of Defense Instruction 1332.37 (Program to Encourage Public and Community Service Employment). The advisory official stated after careful consideration, this office does not recommend approval of the applicants request for re-computation of his retirement pay at age 62 under the provision of section 4464 of Public Law 102-484. Procedures for reporting and computing the enhanced retirement credit are computed based on the DD Form 2276 (Validation of Public or Community Service Employment), which is missing from the application. Once the applicant provides a completed DD 2276, as required by reference 1.b, their office will process the request. The applicant retired from the Army under TERA on 31 July 1998, with a total of 16 years, 7 months, and 5 days of active Federal service. When the applicant resubmits the application with the required DD 2276, if the employment is verified as currently reflected on the Certification of Service form, the applicant’s Enhanced Retirement Qualification Period will be calculated as 27 May 1999. 6. On 26 April 2023, the applicant was provided with a copy of the advisory opinion to provide a response. On 10 May 2023, the applicant provided the completed DD Form 2676 as a rebuttal to the advisory opinion. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The applicant retired early on 31 July 1998 with 16 years, 7 months, and 5 days of active Federal service. To meet the requirements to be given credit for 20 years of service for retired pay purposes, he needed an additional 3 years, 3 months, and 25 days. Based on the required 3 years, 3 months, and 25 days to reach 20 years of service, the applicant's ERQP is calculated as 26 November 2001. He provided documentation from the Minnesota Department of Transportation listing his employment from 9 June 1998 to 26 May 1999 (11 months and 17 days). The employment meets the guidelines in DODI 1332.37. Only the employment between his retirement date and his ERQP (Enhanced Retirement Qualification Period) can be considered. The period of employment that meets the criteria is the 11 months and 17 days (from 9 June 1998 to 26 May 1999) from his date of retirement to his ERQP date of 26 November 2001. Based on this employment and as a matter of equity, the Board determined it to be appropriate to have the applicant's records corrected to show credit for the 11 months and 17 days of qualifying service between his retirement date and his ERQP. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx: xx: xx: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20220003591 on 4 October 2022. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he qualified for an adjustment to his retired pay under the TERA ERQP provisions of the law and by recalculating his retired pay to credit him with 11 months and 17 days of qualifying service between his retirement date (31 July 1998) and his ERQP (26 November 2001) at age 62. 8/22/2023 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Department of Defense Instruction 1332.37 (Program to Encourage Public and Community Service (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, Department of Defense (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. provides that in order for retirees 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. PACS organizations provide or coordinate the following services: • Elementary, secondary, or post-secondary school teaching or administration • Support of teachers or school administrators • Law enforcement • Public health care • Social services • Public safety • Emergency relief • Public housing • Conservation • Environment • Job training • Work in a Federal, state or local government organization in which provides or coordinates services listed above • Other PACS consistent with or related to services listed above 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 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. 3. 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). //NOTHING FOLLOWS//