DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 8697-17 JAN 07 2019 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) l 0 U.S.C. § 1552 Encl: (1) DD Form 149 (2) DD Form 214 eff l Aug 85 (3) PL I 02-484 (NOAA for FY93) § 4464 (4) DOD Instruction 1340.19 of 17 November 1993 (5) NAVADMIN 294/97 (6) DD Form 214 eff 31 Oct 98 (7) Texas Commission on Law Enforcement ltr of 23 Aug 17 (8) NPC memo 5420 PERS-836/032 of 6 Apr 18 l. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (l) with this Board requesting, in effect, that the applicable naval record be corrected to credit service towards retirement. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 16 August 2018 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the availiable evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of the Petitioner's naval record, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. The Petitioner entered a period of active duty on 2 August 1982 and was released from active duty on 1 August 1985. He entered another period of active duty on 18 November 1985. See enclosures (2) and (6). c. The National Defense Authorization Act (NOAA) for Fiscal Year 1993 (FY93) was enacted on 23 October 1992. See enclosure (3). Section 4464 of the FY93 NOAA authorized increased early retirement retired pay for public or community service, and provided that If a member or former member of the Armed Forces retired under section 4403(a) [Temporary Early Retirement Authority (TERA)) 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 section 1143a(c) of title 10, United States Code (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. See enclosure (3). d. Department of Defense Instruction 1340.19 was published on 17 November 1993 and prescribed procedures to certify the public and community service employment of eligible retired members under Section 4464. See enclosure (4). Under this instruction, such certified employment may be used to re-compute military retired pay and, where applicable, the Survivor Benefit Plan (SBP) base amount when the retired member attains or would have attained 62 years of age. The instruction also required that, during retirement processing, the Military Services provide each retiree a copy of DD Form 2676, "Validation of Public or Community Service Employment," and explain the reporting requirements and procedures for enhanced retirement credit. e. NAVADMIN 294/97 was published on 16 December 1997, establishing the Navy's FY99 TERA Program, which offered the opportunity for early retirement to eligible Sailors with at least 15 years of service. See enclosure (5). Applicants were required to request retirement dates between 31 October 1998 to 31 March 1999. f. On 31 October 1998, Petitioner transferred from , to the Fleet Reserve with 15 years, 11 months, and 14 days of active duty service. See enclosure (6). g. On 7 December 1998, Petitioner was employed by the as a jailer until 25 August 1999, and as a peace officer from 13 September 1999 until at least 23 August 2017. See enclosure (7). h. On 17 November 2002, the date he would have reached 20 years of active duty service and become eligible for a military retirement had he not retired early under the TERA program, Petitioner completed his enhanced retirement qualification period. See enclosures (2) and (6). i. On 6 April 2018, in enclosure (8), Navy Personnel Command (NPC) concluded that Petitioner had not provided any documentation that he completed the requirements to establish eligibility for increased early retirement retired pay for public or community service (PACS), explaining that "Since the member did not provide proof of filing the required documents, it is assumed that he failed to do [so]. Had he followed the proper required procedures there would be record of his qualification on file with the Defense Finance and Accounting Service (DFAS)." Accordingly, NPC recommended that Petitioner's request be disapproved, but, if approved, that "DFAS be notified he would have received PACS credit from 13 September 1999 to the date he would have attained 20 years of creditable service [17 November 2002], in order to authorize his retired pay be recalculated when eligible at age 62." 1 CONCLUSION Upon review and consideration of all the evidence of record, and notwithstanding the opinion expressed in enclosure (8), the Board finds the existence of an error or injustice warranting corrective action. In doing so, the Board relied heavily on the fact that Petitioner separated from , and that there is no evidence within his Official Military Personnel File (OMPF) that he completed a pre-separation counseling or was briefed about the requirements for the PACS program, as required by enclosures (4) and (5). (Indeed, paragraph 5.1 of enclosure ( 4) expressly provides that "During retirement processing, the Military Services shall provide each retiree a copy of DD Form 2676, 'Validation of Public or Community Service Employment,' and explain the reporting requirements and procedures for enhanced retirement credit .... ") Therefore, Petitioner should be entitled to service credit for increased early retirement retired pay for his PACS, and his requested relief should be granted. RECOMMENDATION That Petitioner's naval record be corrected, where appropriate, to show that: The Petitioner obtained a certification of employment from the Sheriffs Office and submitted a completed DD Form 2676 on 7 December 1998 upon his employment. The Petitioner submitted a completed DD Form 2676 on 25 August 1999 upon completion of his employment with the Sheriffs Office. The Petitioner obtained a certification of employment from the Police Department and submitted a completed DD Form 2676 on 13 September 1999 upon his employment. The Petitioner completed all reporting requirements annually and within 1 year of the end of his enhanced retirement qualification period on 17 November 2002. One year after the end of his enhanced retirement qualification period, the DMDC provided the DFAS with an automated record reporting the amount of military service credit earned by Petitioner through creditable employment. A copy of this Report of Proceedings will be filed in Petitioner's naval record. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter. 5. The foregoing action ofthe Board is submitted for your review and action. Executive Director