BOARD DATE: 22 October 2009 DOCKET NUMBER: AR20090007415 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that he be awarded the Army Commendation Medal (ARCOM) and the Combat Infantryman Badge (CIB). 2. The applicant states that he believes that he was overlooked for these awards for his service in Iraq while other Soldiers involved in the same incident received these awards. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request. CONSIDERATION OF EVIDENCE: 1. 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 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 ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military records show that he enlisted in the Army National Guard (ARNG) on 20 March 2003, completed his initial entry training, and was awarded the military occupational specialty (MOS) of motor transport operator. 3. He entered active duty in support of Operation Iraqi Freedom on 5 January 2004 and served in Iraq/Kuwait from 21 March 2004 to 26 March 2005. 4. He was awarded the Combat Action Badge (CAB) by Permanent Order 135-56, dated 15 May 2006, and the Army Good Conduct Medal (AGCM) by Permanent Orders 126-036, dated 6 May 2005. 5. The applicant was honorably released from active duty on 25 April 2005. 6. There are no documents showing that the applicant was recommended for, or awarded, the ARCOM. 7. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. 8. Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion. It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation. Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration. 9. The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency: U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405. The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended. A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638. Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. DISCUSSION AND CONCLUSIONS: 1. Since the applicant was a motor transport operator, he did not and could not qualify for the CIB. As such, his request for the CIB is accepted as a request for the CAB. 2. The applicant has orders awarding him the CAB and the AGCM. It would now be appropriate to add these awards to his DD Form 214. 3. There is no evidence that the applicant was recommended for the ARCOM. Without an award recommendation, there is insufficient documentation to base granting the applicant the ARCOM. However, this in no way precludes his right to request the ARCOM be awarded to him through his elected representative in accordance with Title 10 U.S. Code, Section 1130. BOARD VOTE: ________ ________ ________ 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 the DD Form 214 of the individual concerned be corrected by adding the CAB and the AGCM. 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 the ARCOM. _______ _ _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. ABCMR Record of Proceedings (cont) AR20090007415 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090007415 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1