IN THE CASE OF: BOARD DATE: 25 June 2013 DOCKET NUMBER: AR20120021006 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 correction of his records to show award of the Combat Action Badge (CAB). 2. The applicant states he was awarded the CAB in the Afghanistan theater of operations, but the paperwork and orders were never received or placed in his Official Military Personnel File (now known as the Army Military Human Resource Record). a. He states he served in Afghanistan for 1 year and 1 day from 2006 through 2007. He was assigned to the 41st Brigade Combat Team and served as an embedded trainer for the Afghan National Army (ANA). His duties as Corps and Brigade Senior Medical Advisor required him to travel extensively by ground assault convoy throughout eastern Afghanistan as he worked with the medical elements of all 203rd Afghan Corps units. b. He came under direct and indirect enemy fire approximately two dozen times while deployed. He was awarded the CAB at Forward Operating Base Camp Clark, but the headquarters in Kabul lost his orders on at least two occasions. c. He submitted copies of all of his CAB paperwork, including a DA Form 4187 (Personnel Action) initiated by Colonel (COL) J____ A____, Commander, ANA Corps Embedded Training Team. He notes that his social security number was incorrectly recorded on the form which may have led to the paperwork loss. He also states that in his personal witness statement, he probably over-estimated the distance of the rocket in the incident; the other witnesses are artillery-trained Soldiers whose abilities in this area he regards as superior to his own. d. He has no additional documentary evidence of the subsequent times he came under hostile fire because he thought that one CAB award application was sufficient. 3. The applicant provides copies of: * CAB recommendation with proposed narrative * mobilization orders * Accident Report/Serious Incident Report (SIR) * four DA Forms 2823 (Sworn Statements) * three DD Forms 214 (Certificate of Release or Discharge from Active Duty) – two pertaining to Soldiers who completed the sworn statements * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Meritorious Service Medal Certificate * DA Form 2-1 (Personnel Qualification Record – Part II) * U.S. Army Human Resources Command (HRC) letter to a Member of Congress 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 was appointed as a Reserve commissioned officer in the Army National Guard of the United States (ARNGUS) and South Dakota Army National Guard (SDARNG) in the rank of major in the Medical Corps on 18 September 1991. He was promoted to lieutenant colonel (LTC) on 27 July 1998. 3. SDARNG Orders 034-043, dated 3 February 2006, ordered the applicant to active duty on 27 February 2006 in support of Operation Enduring Freedom (OEF) for a period not to exceed 545 days. 4. Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 2-1 does not show award of the CAB. 5. The applicant's DD Form 214 shows he entered this period of active duty on 27 February 2006 and was honorably released from active duty on 6 July 2007. He completed 1 year, 4 months, and 10 days of net active service during this period that included 1 year and 5 days of foreign service. a. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) does not show the CAB. b. Item 18 (Remarks) shows he served in Afghanistan from 9 June 2006 to 13 June 2007. 6. HRC Orders A-04-610183, dated 27 April 2006, ordered the applicant to active duty on 28 July 2007 in support of OEF for a period of 29 days. 7. The applicant's NGB Form 22 shows he entered SDARNG service on 18 September 1991, was honorably separated on 20 August 2007, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). He completed 15 years, 11 months, and 3 days of net service during this period. a. Item 15 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded) does not show the CAB. b. Item 18 (Remarks) shows he served in Afghanistan from 9 June 2006 to 13 June 2007. 8. The applicant was promoted to COL/O-6 and transferred to the USAR Control Group (Retired Reserve) effective 30 June 2012. He was placed on the Retired List in the grade of COL/O-6 on 16 October 2012. 9. The applicant provides: a. a CAB recommendation that includes a DA Form 4187 signed by COL J____ R. A____ on 2 February 2009 with a proposed narrative that recommended award of the CAB to the applicant. The narrative states, "At about 1625 hours on 21 August 2006, Camp Lighting Afghanistan came under an indirect rocket attack. As the senior medical advisor to the ANA 203rd Corps, [Applicant] was in the vicinity of the Camp Lightning TMC [Troop Medical Clinic] at the time of the attack. When [Applicant)] heard the explosion he went directly to the TMC to be prepared for a mass casualty situation. When [Applicant] arrived at the TMC he immediately manned the radio and phone. After the all clear was given, the PA [physician assistant] and medics arranged to send two medics to the impact site which was approximately 250 meters away from the TMC. The impact site was located in the Kuchi camp just outside of Camp Lightning"; b. a Combined Security Transition Command-Afghanistan (CSTC-A), Camp Eggers, Kabul, Afghanistan, letter, dated 5 December 2007, subject: Letter of Lateness for Award, showing the Task Force Phoenix Liaison Officer to CSTC-A indicated the original request for the CAB was submitted in September 2006. Subsequent requests were also submitted in March and May 2007 and were apparently lost. Follow-up actions failed to locate the CAB award packet; c. an Accident Report/SIR showing one 107mm rocket landed in the Kuchi camp at 1625 hours on 21 August 2006, approximately 300 meters northwest of the Camp Lightning Tactical Operations Center. There was no ANA or Coalition damage or casualties; d. a personnel list for Orders 144-509, dated 24 May 2006, showing the applicant is listed as a member of the 203rd Corps; and e. four sworn statements that describe the incident that occurred at approximately 1625 hours on 21 August 2006 at Camp Lightning, completed by the following individuals: (1) Sergeant S____ D. G____ on 8 October 2006, who indicated the rocket landed about 300 meters from his location; (2) the applicant on 17 February 2007, who indicated the rocket landed about 250 meters from his location; (3) Staff Sergeant C____ J. B____ on 25 August 2008, who indicated the rocket landed about 150 meters away from the applicant's location and that he and several other Soldiers were awarded the CAB for this incident; and (4) LTC J____ S. S____ on 24 December 2008, who indicated the rocket landed about 125 meters from the center of the U.S. portion of the camp, the applicant was approximately 100 to 125 meters from the impact site, and many U.S. Soldiers were awarded the CAB as a result of the attack. 10. During the processing of this case, the HRC Military Awards Branch (MAB) was asked to verify information relevant to the applicant's request(s) for award of the CAB. An MAB official confirmed that the applicant received responses to his requests as follows: a. On 28 October 2008, the request for award of the CAB was returned to the applicant through his Senator informing him that his request must be submitted on a DA Form 4187 through his chain of command with the endorsement of the first brigadier general in his chain of command. He was also provided guidance regarding information and documentation required for the award recommendation. b. On 3 October 2009, the MAB again returned the applicant's request for award of the CAB. The applicant was advised that neither of the eyewitness statements nor the SIR mentioned the applicant by name. He was also informed that his proximity in meters to the action and whether he could have reasonably been injured by the impact or blast must be specified in the narrative and all included eyewitness statements. c. On 3 February 2010, the MAB once again returned the applicant's request for award of the CAB. For a third time he was provided guidance regarding information and documentation required for the award recommendation and the chain-of-command submission procedures. 11. A review of available records failed to reveal any evidence that the applicant provided the requested information and documentation to the HRC MAB. 12. Army Regulation 600-8-22 (Military Awards) states the requirements for award of the CAB are branch and military occupational specialty immaterial. Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the CAB. However, it is not intended to award the CAB to all Soldiers who serve in a combat zone or imminent danger area. The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement. The Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge. Award of the CAB is authorized from 18 September 2001 to a date to be determined. 13. A review of the Frequently Asked Questions (FAQ) section of the HRC webpage provides the following question and answer: Question: How far must a Soldier be from an incident in order to be considered in reasonable danger and eligible for a CAB? Answer: There is no written guidance on proximity, which varies for different weapons, for award of the CAB. It is the decision of the approval authority whether the Soldier met the prescribed criteria. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the request for award of the CAB to him for an incident that occurred in Afghanistan on 21 August 2006 was lost by higher headquarters on two occasions and he should be awarded the CAB. 2. The applicant's request was carefully considered. 3. The eyewitness statement prepared approximately 1 1/2 months after the incident does not specifically mention the applicant by name, his proximity in meters to the action, and/or whether he could have reasonably been injured by the impact or blast. In fact, the applicant does not provide copies of any contemporaneous eyewitness statements that satisfy this requirement. In addition, the available evidence does not demonstrate that the applicant was actively engaging or being engaged by the enemy 4. The evidence of record shows the applicant's request for award of the CAB was submitted on at least three occasions to the HRC MAB for consideration. On all three occasions he was informed that the information and documentation did not satisfy the criteria for consideration of the CAB. Specifically, the eyewitness statements did not address the issues of his proximity in meters to the action and whether he could have reasonably been injured by the impact or blast. In addition, his requests did not contain the endorsement of the first brigadier general in his chain of command. 5. The request he now submits to the board contains two eyewitness statements prepared more than 2 years after the incident that place the applicant anywhere from 100 to 150 meters from the impact or blast. However, they do not address the issue of whether he could have reasonably been injured by the impact or blast. In addition, his request does not contain the endorsement of the first brigadier general in his chain of command. 6. In view of the foregoing, there is an insufficient evidentiary basis for granting the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ___X__ _ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ 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) AR20120021006 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120021006 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1