IN THE CASE OF:	  

		BOARD DATE:	       16 October 2008

		DOCKET NUMBER:  AR20080011824 


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 an upgrade of his Army Commendation Medal to a Bronze Star Medal and award of the Combat Action Badge. 

2.  The applicant states that during a mortar attack at a forward operating base (FOB) in Iraq, a service member received a direct hit causing a traumatic amputation of both legs.  He (the applicant) applied tourniquets to both legs, started intravenous (IV) fluids, and stabilized the casualty.  According to the Surgeon General, he saved the casualty’s life.  He was subsequently recommended for award of the Bronze Star Medal, but the approval authority downgraded it to an Army Commendation Medal.  He further adds that there was no reason for the downgrade and that the officer who recommended the award was also on the awards board and saw no reason for the downgrade.  He also adds that he was told by his company commander that he was considered for the Soldier’s Medal.  He feels this has been an oversight so far; however, if this goes too long, he feels it would be an injustice that may require the entire 42nd Infantry Division's award program to be revisited.  He concludes that since his release from active duty, some member of his chain of command have been working on getting this downgrade overturned, but it has now been three years and has still neither received the medal nor heard about the Combat Action Badge recommendation which was forwarded to the Human Resources Command. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Undated DA Form 638 (Recommendation for Award) and accompanying narrative for award of the Bronze Star Medal for the single incident on
11 September 2005. 

	b.  Certificate, dated 28 November 2008, showing award of the Army Commendation Medal. 

	c.  Memorandum, dated 5 March 2006, Request for Reconsideration of the Bronze Star Medal (submitted by the Division Surgeon). 

	d.  Undated DA Form 4187 (Personnel Action) , Recommendation for Award of the Combat Action Badge. 

	e.  Two DA Forms 2823 (Sworn Statement), dated 3 September 2005 and 5 October 2005.  

	f.  Enlisted Record Brief.

	g.  Letter Orders Number D66-2, dated 7 April 1994, Applicant’s removal from the TDRL.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he initially enlisted in the New York Army National Guard on 16 May 1981.  He subsequently entered active duty, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  His records also show he executed a series of extensions and/or reenlistments in the NYARNG and was promoted to staff sergeant (SSG)/E-6 on 24 June 1989 and sergeant first class (SFC)/E-7 on 1 August 1992. 

2.  On 24 May 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq.  He was honorably released from active duty to the control of his ARNG unit on 28 November 2005.

3.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the National Defense Service Medal (2nd Award), the Army Commendation Medal (3rd Award), the Good Conduct Medal, the Army Service Ribbon, the Armed Forces Reserve Medal with “M” Device, the Global War on Terrorism Service Medal, and the Iraq Campaign Medal.  Item 13 does not show award of the Bronze Star Medal or the Combat Action Badge.  
4.  On 11 September 2005, while working at the FOB, the applicant responded to an indirect fire attack in the vicinity of the Division Surgeon Office.  Without regard for his personal safety, the applicant exited the building to check the casualties.  While searching for casualties, he heard the impact of additional incoming rounds.  Alerted by the call for a medic from approximately 25 meters away, he reached the scene and decisively took charge, assessed the casualty, identified the life threatening bleeding from traumatic bilateral amputation of a service member’s legs, and immediately began to render care.  He applied tourniquets to the casualty’s limbs, got assistance in applying bandages to control the bleeding and initiated IV therapy in order to stabilize the casualty for evacuation.  As a result of the life saving interventions and the medical care rendered, the applicant saved the casualty’s life.  

5.  On an unknown date in 2005, the applicant’s immediate commander submitted a DA Form 4187 to the Commanding General, 42nd Infantry Division, recommending the applicant for award of the Combat Action Badge.  The immediate commander cited the applicant’s actions on 11 September 2005.  

6.  On 8 October 2005, the applicant’s battalion commander recommended approval of the request to award the applicant the Combat Action Badge. 

7.  There is no indication that the applicant’s senior commander (Division Artillery) or the approval authority approved this request.  Furthermore, the applicant’s records do not contain orders awarding him the Combat Action Badge. 

8.  On an unknown date in 2005, the 42nd Division Surgeon submitted a recommendation to award the applicant the Bronze Star Medal citing the applicant’s decisive actions on 11 September 2005.  

9.  On 23 October 2005, the applicant’s immediate (company) commander recommended approval and on 24 October 2005, the applicant’s intermediate (battalion) and senior (division artillery) commanders also recommended approval of the recommendation for award of the Bronze Star Medal.

10.  On 28 November 2005, the award approval authority (Commanding General, 42nd Infantry Division) downgraded the award and approved an Army Commendation Medal. 

11.  On 5 March 2006, the Division Surgeon submitted a memorandum to the Commanding General, 42nd Infantry Division, requesting reconsideration of the award of the Bronze Star Medal, restating the events that took place on 11 September 2005 and remarking that she had reviewed hundreds of award packets submitted for the Bronze Star Medals and that the applicant’s recommendation ranked with the most deserving of them all.  

12.  There is no indication in the applicant’s records if the Division Commander received and/or reviewed this memorandum, or that he changed his decision.  

13.  In addition to the DA Form 638, the applicant submitted two sworn statements, as follows:

	a.  In his statement, dated 30 September 2005, a medical specialist stated that he and the applicant were working in the Division Surgeon’s office when they heard a round exploding outside.  The applicant immediately ran to see if anyone was hurt and while he was outside, two more rounds exploded.  The applicant ran back and told him (the witness) to grab the trauma bag and follow him outside.  When they arrived at the scene of an injured service member, the applicant quickly assessed the casualty and applied tourniquets to his legs and bandaged the legs, and once the bleeding was stopped, he initiated an IV.

	b.  In his sworn statement, dated 5 October 2005, an officer stated that he was working in the command area when he heard an incoming round explode very close outside.  Once he went outside, two more rounds exploded.  As he went back inside, he heard someone yelling for a medic and rushed to his truck to get his aid bag.  Once at the scene, he found the applicant and three other Soldiers treating a casualty.  The applicant and another medic had already applied a tourniquet to the legs, so he (the witness) opened his own aid bag and started to assist by opening and passing bandages and also helped prepare the IV.  During this time of treatment, about three more rounds from an unknown origin were heard exploding.   

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

15.  Army Regulation 600-8-22 provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

16.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a 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.

17.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the Combat Action Badge are branch and MOS 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 Combat Action Badge.  However, it is not intended to award the Combat Action Badge 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.  Army Regulation 600-8-22 also states that award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.   Award for qualifying service in any previous conflict is not authorized.  Retroactive awards of the Combat Action Badge are not authorized prior to
18 September 2001.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Bronze Star Medal should not have been downgraded to an Army Commendation Medal and that he should be awarded the Combat Action Badge.

2.  With respect to award of the Bronze Star Medal, the applicant’s actions were clearly commendable.  He was accordingly recommended for award of the Bronze Star Medal.  Furthermore, his immediate, intermediate, and senior commanders recommended approval of the award.  However, the decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  The Commanding General at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the Army Commendation Medal.  

3.  The sworn statements submitted by the applicant himself show that while he took charge of the situation, as a senior noncommissioned officer should, the application of the tourniquets and the IV was a joint effort with other Soldiers.  While the applicant’s dissatisfaction with the Commanding General’s decision does not diminish or take away from his extraordinary efforts in helping save another service member’s life, this dissatisfaction does not indicate that an error and/or an injustice was committed in approving an Army Commendation Medal.  Therefore, there is insufficient evidence to award the applicant the Bronze star Medal in this case.

4.  However, while the available evidence is insufficient for awarding the applicant the Bronze Star Medal, this in no way affects his right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

5.  With respect to award of the Combat Action Badge, the applicant’s record is void of any order showing he awarded the Combat Action Badge.  Furthermore, the personnel action initiated by the applicant’s immediate commander and endorsed by the battalion commander does not show that action was taken by the final approving authority.  The applicant’s actions were clearly commendable; however, there is no evidence that he engaged or was engaged by the enemy during this incident.  Therefore, he does not meet the criteria for award of the Combat Action Badge. 

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


															XXX
      ______________________
               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)                                         AR20080011824



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ABCMR Record of Proceedings (cont)                                         AR20080011824



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