IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090004208 


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 award of the Combat Action Badge (CAB) and/or the Combat Infantryman Badge (CIB).

2.  The applicant states that he was attached to the 1st Battalion, 168th Infantry, during his service in Afghanistan and that he was given the CAB to wear; however, the officer who issued it did not have the authority to do so.  He also adds that he needs the CAB to help with his Department of Veterans Affairs claim.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 June 2005, in support of his request.

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's records show he initially enlisted in the Regular Army for a period of 2 years on 16 April 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).  He subsequently executed an extension and several reenlistments in the Regular Army and was honorably discharged in the rank/grade of staff sergeant (SSG)/E-6 on 1 December 1991.

3.  After a break in service, the applicant enlisted in the Iowa Army National Guard (IAARNG) in the rank/grade of SSG/E-6 for a period of 1 year on 5 May 2003.  He was subsequently assigned to the 1st Battalion, 133rd Infantry, Dubuque, IA, and performed duties as an infantry rifle squad leader in MOS 11B (Infantryman).

4.  On 18 February 2004, Office of the Adjutant General, IAARNG, published Orders 049-040 directing the applicant's reassignment to Headquarters and Headquarters Company, 1st Battalion, 168th Infantry, Council Bluffs, IA, in MOS 31U (Signal Support System Specialist) effective 18 February 2004.

5.  On 5 March 2004, the applicant was ordered to active duty as a member of the 1st Battalion, 168th Infantry, in support of Operation Enduring Freedom.  He executed a 3-year reenlistment in the IAARNG on 3 May 2004 and subsequently served in Afghanistan from 26 May 2004 to 30 May 2005.

6.  During his service in Afghanistan, the applicant held MOS 11B, but performed the duties of MOS 31U as the Communications Noncommissioned Officer in Charge (NCOIC) for Task Force 168th Infantry in Gardez, Afghanistan.

7.  The applicant's records further show he was honorably released from active duty to the control of his Army National Guard unit on 29 June 2005.

8.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued does not show award of the CAB and/or the CIB.

9.  The applicant's records do not contain orders that show he was awarded the CAB and/or the CIB.

10.  Army Regulation 600-8-22 (Military Awards) 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 CIB or the Combat Medical Badge (CMB).  The regulation further states that award of the CAB is authorized from 18 September 2001 to a date to be determined.  The CAB will be announced in permanent orders.

11.  Army Regulation 600-8-22 prescribes Army policy and procedures concerning awards.  Paragraph 8-6 provides for award of the CIB.  That paragraph states that there are basically three requirements for award of the CIB. The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry specialty and satisfactorily performed duty while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry primary duty in a unit actively engaged in ground combat with the enemy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the CAB and/or the CIB.

2.  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.  Commanders at the time of the act, or shortly thereafter, determine if the Soldier's actions, performance, and/or achievement meet the criteria for a specific award and/or warrant the award.

3.  With respect to award of the CAB, the CAB is not intended to be awarded to all Soldiers who serve in a combat zone or imminent danger area.  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 while performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he actively engaged or was engaged by the enemy.  Furthermore, the applicant’s records do not contain a recommendation for award of the CAB or permanent orders that show he was awarded the CAB.  Therefore, there is insufficient evidence to award the applicant the CAB in this case.
4.  With respect to award of the CIB, the applicant's assignment to an infantry unit in a combat zone is not in question.  However, the applicant's evaluation report for the duration of his deployment in Afghanistan clearly shows that he performed duties as the Communications NCOIC.  Furthermore, there is no evidence that shows he was engaged in active ground combat while assigned to an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  As a result, the applicant does not meet the criteria for award of the CIB.

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.



      ____________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)                                         AR20090004208



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004208



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1