RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 February 2006
      DOCKET NUMBER:  AR20050008771


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Janet Strafer                 |     |Member               |
|     |Ms. Naomi Henderson               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests retired pay and benefits.  In a separate letter
to the National Personnel Records Center, which was forwarded to the Army
Review Boards Agency, the applicant requested award of the National Defense
Service Medal (NDSM), the Armed Forces Expeditionary Medal (AFEM), and the
Meritorious Service Medal (MSM).

2.  The applicant states the retention control point (RCP) rules forced him
out at the 15-year mark due to his rank/grade of Sergeant (SGT)/E-5.  He
would have been promoted three months after his discharge and he would have
been allowed to stay until he reached 20 years and retired.  A short time
later, the RCP policy was changed.

3.  The applicant stated the NDSM was awarded to all members of the
military who were on active duty during Operation Desert Shield/Storm.  He
should have been awarded the AFEM for being deployed to Kuwait during
Operation Desert Thunder from February through April 1998.  He was
recommended for award of the MSM for service with the 22d Signal Brigade
from March 1989 through November 1991.  He was told the award was
downgraded to an Army Commendation Medal (ARCOM) due to his rank.  While
with the unit, he had been awarded the ARCOM for being the Brigade Soldier
of the Year.  Therefore, his end-of-tour award, for over six years with the
unit, would have been an MSM.

4.  The applicant states he provides the current RCP policy; however, only
a DD Form 214 (Certificate of Release or Discharge from Active Duty) was
included with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 July 1998.  The application submitted in this case is
dated
20 May 2005.

2.  Title 10, U.S. Code, 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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant requested correction of his records to show award of the
MSM. There are no orders or other evidence authorizing this decoration to
the applicant.  In the absence of a proper award authority for this
decoration, the applicant may request award of the MSM under the provisions
of section 1130 of Title 10, United States Code.  The applicant has been
notified by separate correspondence of the procedures for applying for this
decoration under section 1130 and, as a result, it will not be discussed
further in this Record of Proceedings.

4.  The applicant enlisted in the Regular Army on 28 June 1983.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 31F (Network Switching Systems
Operator/Maintainer).  He was promoted to Sergeant/E-5 on 6 July 1988.

5.  Special Operations Command Central Permanent Orders SC-0084 dated
18 June 1998 awarded the applicant the Joint Service Achievement Medal for
meritorious achievement while deployed in support of Combined Special
Operation Task Force – Southwest Asia Forward during Operation Desert
Thunder from 2 February 1998 to 1 April 1998.

6.  On 19 July 1998, the applicant was honorably discharged, in the rank
and grade of Sergeant/E-5, upon the completion of his required active
service.  He had completed 15 years and 22 days of creditable active
service.  His DD Form 214 does not show the NDSM or the AFEM.  There is no
evidence in the applicant's records to show he was on a promotion standing
list at the time of his separation.

7.  Personnel Service Support Team, MacDill Air Force Base, FL Orders 168-
01 dated 17 June 1998 amended the applicant's separation orders to show he
was entitled to full separation pay.

8.  Headquarters, Department of the Army, Deputy Chief of Staff, Personnel
message date-time group 271738Z November 1996 changed the RCP of a
nonpromotable Sergeant/E-5 from 13 years of active service to 15 years of
active service effective 1 April 1997.  The RCP of a promotable Sergeant/E-
5 stayed at 15 years of active service.

9.  Army Regulation 601-280 (Army Retention Program), effective 30 April
1999, provided for an RCP of 20 years of active service for a promotable
Sergeant/E-5.

10.  Army Regulation 600-8-2 (Military Awards) states the NDSM is awarded
for honorable active service for any period between 27 June 1950 and 27
July 1954,
both dates inclusive; between 1 January 1961 and 24 August 1974, both dates
inclusive; between 2 August 1990 and 30 November 1995, both dates
inclusive; and between 11 September 2001 to a date to be determined.

11.  The U. S. Army Human Resources Command's "Awards Issued since the Cold
War" website shows the AFEM was authorized for service in Southwest Asia
during Operation Desert Thunder for the period December 1995 through   18
March 2003.

DISCUSSION AND CONCLUSIONS:

1.  The applicant separated on 19 July 1998 due to reaching his RCP (15
years of active service for either a nonpromotable or a promotable
Sergeant, E-5).

2.  The applicant's contention that the RCP rules changed shortly after he
separated is correct.  Effective 30 April 1999, a promotable Sergeant/E-5's
RCP was changed to 20 years of active service.  However, aside from the
fact there is no evidence of record to show the applicant was a promotable
E-5 at the time of his separation, the RCP rules in effect at the time of
his separation did not allow him to remain on active duty beyond 15 years
of active service.  Unfortunately, changes in RCP rules are not
retroactive.

3.  The applicant met the eligibility criteria for award of the AFEM (for
being deployed to Kuwait during Operation Desert Thunder from February
through April 1998) and the NDSM.  Therefore, his DD Form 214 should be
amended to add these two awards.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 July 1998; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         18 July 2001.  The applicant did not file within the 3-
year statute of limitations; however, based on the evidence available it
would be in the interest of justice to excuse failure to timely file in
this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__wdp___  __js____  __nh____  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 and to excuse failure to timely
file.  As a result, the Board recommends that the DD Form 214 of the
individual concerned be corrected by showing he was awarded the National
Defense Service Medal and the Armed Forces Expeditionary Medal.

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
awarding him retired pay and benefits.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008771                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060216                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |136.00                                  |
|2.                      |107.0072                                |
|3.                      |107.0069                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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