IN THE CASE OF:	  

		BOARD DATE: 	        9 June 2009 

		DOCKET NUMBER:  AR20090000308 


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, correction of his records to show that he was awarded the Purple Heart (PH) and the Driver and Mechanic Badge with Driver-W [wheeled vehicle] Bar.  He further requests that he and two other occupants, Captain (CPT) C---------- J---- and Specialist (SPC) C---------- D----, of the vehicle which he was driving be awarded the Combat Action Badge (CAB).

2.  The applicant states that he does not know why the decorations were not submitted in a timely manner.  He describes an incident in which the vehicle he was driving sustained damage and the vehicle occupants were thrown about inside the vehicle when four improvised explosive devices (IED) exploded along the road he was traveling while delivering supplies.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); a memorandum requesting issuance of a DD Form 215 (Correction to DD Form 214) to change item 9 (Command to Which Transferred) of his issued DD Form 214, dated 30 September 2008; orders and other miscellaneous documents related to his transition from active duty; an Enlisted Record Brief (ERB), dated 17 June 2008; a package of documents including a narrative describing why he believes he is eligible for the requested awards; four DA Forms 2823 (Sworn Statement); a DA Form 638 (Recommendation for Award) of the Army Commendation Medal (ARCOM), dated 8 March 2008; a Serious Incident Report (SIR) (Final), dated 6 June 2007; awards data sheets; an unsigned request for award of the CAB, dated 27 May 2007; a driver qualification record, dated 3 January 2008; Standard Forms (SF) 600 (Health Record - Chronological Record of Medical Care), dated 23 and 25 May 2007, 9, 22, and 24 October 2007, and 4 November 2007; a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 September 2007; a DA Form 3349 (Physical Profile), dated 22 October 2007; an Optional Form (OF) 346 (U.S. Government Motor Vehicle Operator's Identification Card); and additional miscellaneous documents in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army (RA) on 9 January 2006.  He completed the required training and was awarded military occupational specialty (MOS) 92R (parachute rigger).  He was advanced to the rank/grade of specialist (SPC)/E-4 on 1 September 2007, which is the highest rank held during his tenure of service.  He was honorably released from active duty 29 August 2008 by reason of completion of required service and transferred to an artillery unit in the California Army National Guard (CAARNG).

2.  The DD Form 214 he was issued at the time shows the applicant served in Iraq during the period 27 March 2007 through 30 April 2008.

3.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or Authorized) of the applicant's DD Form 214 does not show award of the PH, CAB, or the Driver and Mechanic Badge with Driver-W Bar.  The applicant's records also do not contain any evidence that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.

4.  The applicant's SF 600, dated 23 May 2007, contains remarks by the attending physician that the applicant stated he had been in an IED attack two and one-half weeks prior and that his vehicle had sustained damage.  Following return from the mission the applicant complained of back pains, that it hurt to bend over and tie his shoes, and that he had pain with sitting for periods of time. He also indicated to the physician that he was not injured in this IED blast and was not seen by medical personnel.

5.  A DA Form 2173, dated 25 September 2007, and signed by the unit commander who was also an occupant in the vehicle driven by the applicant at the time of the IED blast, shows that the applicant was treated for a trauma to the lower back which he stated was sustained while engaged by the blast from the IED that shook their vehicle.  The commander stated that a series of four blasts shook the vehicle and all the occupants were thrown around.

6.  The applicant provided copies of an SIR, DA Forms 2823, and an unsigned copy of a memorandum and DA Form 4187 (Personnel Action) requesting award of the CAB.  The date of the incident shown on these documents is 9 May 2007.  While there is no available evidence to show what, if any, final action was taken, the applicant states the battalion commander twice denied the request for the CAB for this incident because he did not feel the applicant's group came into contact with what they claimed.

7.  The applicant also provided a copy of the CAB award narrative.  The narrative describes that while traveling north on MSR (main supply road) Tampa towards Scania, the rear gun truck, DD212 (the vehicle the applicant was driving), was hugging the median and driving approximately 25 miles per hour when a series of four blasts about 5-10 seconds apart were heard and felt.  The first three IEDs detonated in the median of the road and were close enough to jar the vehicle violently.  The fourth blast occurred on the side of the north bound lane off the road at about the 5 o'clock position.  All blasts happened after their vehicle had passed.

8.  The applicant provided a self-authored sworn statement, dated 14 May 2007.  He stated, in pertinent part, that on 9 May 2007 the vehicle which he was driving was proceeding northbound to Scania enroute to Camp Sietz.  Along the way his vehicle was hit by four IEDs which exploded about 10-15 seconds apart.  He states that when the IEDs were triggered they lifted the rear of the truck causing a little damage to the truck.  He states that the gunner, SPC D----, was hit by small fragments of metal and debris from the IED from the road and hurt his wrist from being slammed against the vehicle.  He states that CPT J---- said his back was hurting really bad from being thrown around and that he, the applicant, did not receive any injury.

9.  In a sworn statement by the convoy commander, SSG A------ E. H----, dated 14 May 2007, he stated, in pertinent part, that CPT J---- called him on the radio on two occasions saying IEDs were going off near his vehicle.

10.  In a sworn statement from CPT J----, dated 14 May 2007, he stated, in pertinent part, that on 9 May 2007 SPC D----, the applicant, and he were serving as the rear gun truck in a convoy going to Camp Sietz, Iraq.  He stated that the applicant was driving northbound when their truck was thrown around by four IEDs.  He stated the truck received minor damage.  He stated that SPC D---- was hit by small fragments of metal and debris from the IED and the road and sustained an injured wrist from being slammed against the vehicle.  He stated that his back was hurting really bad from the jolt and that the applicant said he 
was OK.  He stated that he then called the convoy commander and informed him they were getting hit at the back of the convoy.  He stated that after they arrived at Scania, SPC D---- and he went to the Theater Medical Clinic and were checked out.  He received a shot of TORDAL in his hip for the muscle spasms and pain.  SPC D----'s wrist was broken.  He stated that the applicant was scared but refused to go see the doctor.

11.  In a sworn statement from SPC D----, dated 14 May 2007, he stated, in pertinent part, that on 9 May 2007, truck DD212 was driving northbound when it was struck by four IEDs.  He stated that he was positioned in the turret as gunner and when the IEDs were triggered they lifted the rear of the truck causing minor damage to the truck.  He states that he was hit by small fragments of metal and debris from the IED and the road and sustained a fractured wrist from being slammed against the vehicle.  He states that CPT J---- said his back was hurting really bad from the jolt and the applicant did not receive any injury.

12.  There is no evidence that the applicant was ever recommended for or awarded the Driver and Mechanic Badge with Driver-W Bar by proper authority.

13.  The applicant's records show he possessed an operator's permit and a current OF 346.  His DA Form 348-E (Operator Qualification Record), dated
3 January 2008 shows that he drove 1,107 miles and does not show any Army motor vehicle accidents or traffic violations.  His assignment information on his ERB shows he was assigned as an airdrop equipment repair specialist during that time period.

14.  The applicant provided a copy of an award recommendation which indicates he traveled some 2,700 miles while serving in Iraq.

15.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures concerning awards.  It provides, in pertinent part, that the PH is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

16.  On 2 May 2005, the Chief of Staff of the Army approved creation of the CAB to provide special recognition to Soldiers who personally engage in or are engaged by the enemy.  The CAB may be awarded by any commander delegated authority by the Secretary of the Army during wartime or the Commanding General, US Army Human Resources Command and will be announced in permanent orders.

17.  Army Regulation 600-8-22 states the requirements for award of the CAB 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 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.

18.  Regulation 600-8-22 provides, in pertinent part, that the Driver and Mechanic Badge is awarded to drivers to denote the attainment of a high degree of skill in the operation of motor vehicles.  Commanders of brigades, regiments, separate battalions and any commander in the rank of lieutenant colonel or higher may approve award of the Driver Badge.  The component bar "W" is authorized for wheeled vehicles.  The eligibility requirements for drivers state that a Soldier must qualify for and possess a current OF 346 issued as prescribed by Army Regulation 600-55 (The Army Driver and Operator Standardization Program (Selection, Training, Testing, and Licensing)), and be assigned duties and responsibilities as a driver or assistant driver of government vehicles for a minimum of 12 consecutive months, or during at least 8,000 miles with no government motor vehicle accident or traffic violation recorded on his or her DA Form 348-1-R (Equipment Operator's Qualification Record (Except Aircraft)), or perform satisfactorily for a minimum period of 1 year as an active qualified driver instructor or motor vehicle driver examiner. 
  
19.  Army Regulation 15-185 (Army Board for Correction of Military Records) states in pertinent part that an applicant with a proper interest may request correction of another person's military records when that person is incapable of acting on his or her own behalf, missing, or deceased.  Depending on the circumstances, a child, spouse, parent, or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or former
Soldier may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  Available evidence indicates that the applicant was involved in an IED blast while operating a vehicle in Iraq.  While the other two vehicle occupants sought medical attention immediately after the incident, sworn statements by the other two occupants indicated the applicant was not injured during the attack, that he did not seek immediate medical attention, and that he did not establish that the medical attention he sought two and one-half weeks later was for combat injuries, which he also acknowledged in his self-authored sworn statement.  The attending physician also indicated in his notes that the applicant's complaints of pain were not combat-related.  Therefore, in the absence of evidence that the applicant was wounded or injured as a result of hostile action and an official medical record showing he was treated for such wounds, there is insufficient evidence upon which to base award of the PH.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, there is no basis for granting the applicant's request for award of the PH.

2.  The applicant requested award of the CAB for the other two occupants who were riding in the vehicle which he was driving during the IED incident; however, in accordance with regulatory policy the applicant has not provided proof of proper interest to request award of the CAB on behalf of these two individuals.  Therefore, there is no basis for granting the applicant's requested relief on this portion of his application.

3.  The applicant provided copies of an unsigned request for the CAB, an SIR, and a DA Form 4187 indicating a request for award of the CAB may have been submitted for approval.  The applicant stated that the request for award of the CAB was denied at the battalion level twice because the battalion commander did not feel his (the applicant's) group came into contact with what they claimed.  However, the preponderance of evidence indicates that the other two occupants riding in the vehicle with him at the time were injured by being thrown about inside the vehicle due to IED explosions while travelling in a convoy delivering supplies.  Sworn statements and medical records provide sufficient evidence in support of the applicant's contention that he is entitled to award of the CAB.  In the interest of equity and justice, it would be appropriate to award the applicant the CAB.

4.  While there is evidence in the applicant's records that he performed driving duties while serving in support of Operation Iraqi Freedom, there is insufficient evidence in his service personnel records that show he was assigned to a duty position designated as driver or assistant driver for a minimum of 12 consecutive 
months or during 8000 miles, or that he performed satisfactorily for a minimum of one year as an active qualified driver instructor or motor vehicle driver examiner.  Therefore, he is not entitled to correction of his records to show this award.

5.  In view of the foregoing, the applicant's records should be corrected, but only as recommended below.



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 CAB and adding this award to item 13 of 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 awarding the Purple Heart and the Driver and Mechanic Badge with Driver-W Bar to the applicant.

3.  The Board further recommends denial of so much of the application that pertains to award of the Combat Action Badge to the other two occupants of the vehicle the applicant was operating during the IED incident.



      ___________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)                                         AR20090000308



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ABCMR Record of Proceedings (cont)                                         AR20090000308



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