IN THE CASE OF:	  

		BOARD DATE:	        28 APRIL 2009

		DOCKET NUMBER:  AR20090000215 


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, in effect, that he be awarded the Combat Action Badge (CAB), the Iraq Campaign Medal (ICM), and the Armed Forces Expeditionary Medal (AFEM) and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected accordingly. 

2.  The applicant states that he is entitled to awards of the CAB, the ICM, and the AFEM based on his service in an imminent danger area in Iraq from 23 January 2003 to 26 August 2003.  He goes on to state that he served with the 3rd Battalion, 69th Armor Battalion, as an armor crewman in the initial battle into Baghdad at the beginning of the war, prior to the awards being approved. 

3.  The applicant provides a copy of his DD Form 214.

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 enlisted in the Regular Army on 14 February 2002 for a period of 3 years, training as an armor crewman, and a cash enlistment bonus.  He completed his one-station unit training at Fort Knox, Kentucky, and was transferred to Fort Stewart, Georgia, for his first and only permanent duty assignment.

3.  The applicant was assigned to Company A, 3rd Battalion, 69th Armor Regiment, and was advanced to the pay grade of E-2 on 14 August 2002.  The applicant deployed to Iraq and Kuwait in support of Operation Enduring Freedom and Operation Iraqi Freedom (OIF) from 23 January 2003 to 26 August 2003.

4.  On 10 May 2004, he was discharged under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.  He had served 2 years, 2 months, and 27 days of total active service and was awarded the Presidential Unit Citation, the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal (GWOTEM), the Global War on Terrorism Service Medal, and the Army Service Ribbon.

5.  He applied to the Army Discharge Review Board (ADRB) in July 2005 for an upgrade of his discharge and on 26 May 2006 the ADRB upgraded his discharge to fully honorable.

6.  A review of the available records failed to show any indication that the applicant ever actually engaged or was engaged by the enemy in combat.  Additionally, there is no evidence that he served in any operations in Southwest Asia that have been designated to receive the AFEM.

7.  On 2 May 2005, the Chief of Staff of the Army approved the creation of the CAB to provide special recognition to Soldiers who personally engaged or are engaged by the enemy.

8.  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.

9.  Army Regulation 600-8-22 also states that award of the CAB 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 CAB are not authorized prior to 18 September 2001.

10.  Army Regulation 600-8-22 (Military Awards) states that individuals authorized the Iraq Campaign Medal must have served in direct support of OIF.  The area of eligibility encompasses all land area of the country of Iraq and the contiguous water area out to 12 nautical miles and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of OIF.  Four campaigns have been identified -- Liberation of Iraq, 19 March 2003 through       1 May 2003; Transition of Iraq, 2 May 2003 through 28 June 2004; Iraqi Governance, 29 June 2004 through 15 December 2005; and National Resolution, 16 December 2005 through a date to be determined.  One bronze service star is worn on the Iraq Campaign Medal for each credited campaign.

11.  A Frequently Asked Questions document from the Human Resources Command (HRC), Military Awards Branch, updated on 25 June 2007, contains examples to show Soldiers’ eligibility for awards while deployed to Iraq.  The document states “Question:  I deployed originally in support of Operation Enduring Freedom on 15 Feb 03 and served in Kuwait waiting for Operation Iraqi Freedom to begin.  On 19 March 03, my unit moved into Iraq to support Operation Iraqi Freedom.  I served in Iraq from 19 Mar 03 through 30 Dec 03.  I need clarification on whether I am authorized the GWOTEM for time in Kuwait and the ICM for service in Iraq?"  Answer:  You qualify for award of the GWOTEM for the time in support of OEF in Kuwait from 15 Feb 03 to 18 Mar 03.  You qualify for award of the ICM for the period of 19 Mar 03 to 30 Dec 03."



12.  Army Regulation 600-8-22, provides, in pertinent part, that the AFEM is authorized for participants in military operations within a specific geographic area during a specified time period.  An individual who was not engaged in actual combat or equally hazardous activity must have participated in operations or in direct support of operations for 30 consecutive or 60 nonconsecutive days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to awards of the CAB and the AFEM have been noted and found to lack merit.

2.  While the applicant may have engaged or was engaged by the enemy while in Iraq, there is no evidence in the available records to support his contention.  Therefore, lacking sufficient specific evidence to show that he either engaged or was engaged by the enemy or both, there appears to be no basis to award him the CAB.

3.  However, if the applicant can obtain evidence to corroborate his claim to the Combat Action Badge, he may apply directly to the Commanding General, U. S. Army Human Resources Command, ATTN:  AHRC-PDO-PA, Alexandria, VA  22332-0471.  All requests should contain the following (a) assignment, attachment, or operational control orders; (b) Enlisted Record Brief or DA Form 2-1; (c) chain of command endorsement; (d) a one-page narrative description of the qualifying incident; (e) a certified copy of the DD Form 214; and (f) other  supporting documentation.

4.  The applicant's contention that he is entitled to award of the ICM has also been noted and found to have merit.  The applicant qualified for award of the GWOTEM for his service in support of Operation Enduring Freedom from          23 January 2003 through 18 March 2003 and he qualified for award of the ICM for his service in support of Operation Iraqi Freedom from 19 March 2003 to      26 August 2003.  Accordingly, he should be awarded the ICM with two bronze service stars at this time.

5.  The applicant's contention that he is entitled to award of the AFEM has also been noted and appears to lack merit.  There is no evidence in the available records to show that he served in any of the designated areas or operations to qualify for award of the AFEM.  Therefore, in the absence of evidence to show specifically what operation or area he served in to qualify for award of the AFEM, there appears to be no basis to award him that medal.



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 all Department of the Army records of the individual concerned be corrected by awarding him the ICM with two bronze service stars and the GWOTEM and adding these awards to his DD Form 214.

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 awards of the CAB and the AFEM.



      _______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)                                         AR20090000215





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ABCMR Record of Proceedings (cont)                                         AR20090000215



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