IN THE CASE OF:	  

		BOARD DATE:	       6 AUGUST 2009

		DOCKET NUMBER:  AR20090002663 


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 reconsideration of his previous request for award of the Combat Action Badge.

2.  The applicant states that he needs his Combat Action Badge.  He states that as a result of his previous application to the Board, he was furnished all of his other awards and decorations; however, he did not receive the Combat Action Badge due to lack of evidence.  He states that he was medically evacuated from Iraq and discharged before his unit could issue him the award.

3.  The applicant provides copies of three DD Forms 2823 (Sworn Statement) from three different individuals who all attest that the applicant was a member of their squad from 2004 to 2005 when he was in Iraq and that the squad was awarded the Combat Action Badge for that period of service.  He also provides a copy of his deployment orders, dated 4 December 2003, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080014572, on 9 December 2008.

2.  The available records show that the applicant had prior enlisted service in the Oklahoma Army National Guard (OKARNG) when he enlisted in the OKARNG on 17 November 2003.  

3.  On 11 December 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom and he was assigned to Company B, 120th Engineer Battalion from 11 December 2003 through 27 October 2004.

4.  The applicant was honorably discharged on 12 January 2005, under the provisions of Army Regulations 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4-24b(3), by reason of physical disability with severance pay.

5.  The DD Form 214 that the applicant was furnished a the time of his discharge shows that he was awarded the Army Achievement Medal, Army Reserve Components Achievement Medal (third award), National Defense Service Medal, Humanitarian Service Medal, Army Service Ribbon, Army Reserve Components Overseas Training Ribbon (third award), and Air Assault Badge.

6.  In a prior application to this Board, dated 13 August 2008, the applicant requested that he be awarded the Armed Forces Reserve Medal with “M” Device, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, and Combat Action Badge.

7.  As a result of the prior Board action, a DD Form 215 (Correction to DD Form 214), in pertinent part, awarded the Armed Forces Reserve Medal with “M” Device and Bronze Hourglass Device, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, and Overseas Service Ribbon.  However, the portion of his request pertaining to the award of the Combat Action Badge was denied.

8.  The applicant now submits three DA Forms 2823 from three individuals who contend that they were deployed to Iraq in 2004 and 2005 and were in the same squad as the applicant.  These individuals contend that their units and squads were awarded the Combat Action Badge for their engagement with the enemy while in Iraq.  They contend that the applicant was medically discharged before the award was received by the members of their unit.  

9.  During the processing of this case the Official Military Personnel Files (OMPF) on the interactive Personnel Electronic Records Management System (iPERMS) of the three individuals who submitted the sworn statements were reviewed.  During the review, it was discovered that only two of the three individuals' 
records contain orders awarding the Combat Action Badge.  The OMPF of the third individual does not contain orders awarding him the Combat Action Badge.  Additionally, neither of the orders shows that the applicant was in the same unit as the two individuals who were awarded the Combat Action Badge.

10.  Army Regulation 600-8-22 (Military Awards) states that on 2 May 2005, the Chief of Staff of the Army approved the creation of the Combat Action Badge to provide special recognition to Soldiers who personally engaged, or are engaged by the enemy.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the Combat Action Badge has been noted.  The DA Forms 2823 that he submitted in support of his application have also been noted.  However, there is no evidence in the available records that show the applicant was entitled to the award of the Combat Action Badge.

2.  In the DA Forms 2823, the three individuals contend that their squads and platoons were awarded the Combat Action Badge for their engagement with the enemy while in Iraq and that the applicant was in the squad at the same period of time.  These three statements do not contain sufficient information to warrant a reversal of the original decision made in his case.

3.  The Combat Action Badge is an individual award, not a unit award, and while the three individuals contend that the applicant engaged or was engaged by the enemy while he was in Iraq, there is no evidence in the available record nor has the applicant submitted any corroborating evidence to show that he served in the same unit as the three individuals.


4.  As previously stated, 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 available evidence does not satisfy this requirement.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xxx_____  ___xxx_____  ___xxx_____  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 to amend the decision of the ABCMR set forth in Docket Number AR20080014572, dated 9 December 2008.



      _________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)                                         AR20090002663



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ABCMR Record of Proceedings (cont)                                         AR20090002663



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