IN THE CASE OF:	  

		BOARD DATE:	       22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007033 


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, award of the Combat Action Badge (CAB).  

2.  The applicant states, in effect, he was present at an incident on 8 April 2005, which resulted in everyone in his platoon being awarded the CAB.   

3.  The applicant provides a VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post Traumatic Stress Disorder (PTSD)), a CNN.com Internet Article and DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application. 

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 record shows that he enlisted in the Regular Army and entered active duty on 21 May 2002, and was trained in and awarded military occupational specialty (MOS) 19K (Armor Crewman).  

3.  The applicant's record shows that he served in Kuwait and Iraq from 
10 October 2004 through 1 October 2005, and that he earned the following awards during his active duty tenure:  Army Commendation Medal (ARCOM), Army Achievement Medal (AAM), Army Good Conduct Medal (AGCM), National Defense Service Medal (NDSM), Global War on Terrorism Service Medal (GWOTSM), Army Service Ribbon (ASR), Overseas Service Ribbon (OSR), and Iraq Campaign Medal.   

4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the CAB during his active duty tenure.  

5.  On 31 December 2005, the applicant was honorably released from active duty (REFRAD), in the rank of specialist/E-4 (SPC/E-4), after completing 3 years, 
7 months and 10 days of active military service.  The DD Form 214 he was issued at the time does not include the CAB in the list of awards entered in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) and the applicant authenticated this document with his signature in item 21 (Signature of Member Being Separated).  

6.  The applicant provides a VA Form 21-0781, dated 26 August 2009, in which he indicates that while serving in Iraq on 21 December 2004, while going to the mess hall for diner, he and his buddy heard a loud explosion and jumped into a bunker as did ten other individuals close by.  He states he waited a few minutes and heard people running and screaming out of the mess hall.  Inside the mess hall, he saw many bloody dismembered bodies and assisted with carrying the bodies out.  

7.  The applicant also provides an internet article titled "Generals share their experience with PTSD", which outlines the Post Traumatic Stress Disorder (PTSD) stories provided by two high-ranking individuals, who hope that by going public they can remove the stigma many Soldiers say keeps them from getting help for a PTSD.  


8.  Army Regulation 600-8-22 (Military Awards) provides the Army’s awards policy.  Chapter 8 contains guidance on award of badges and tabs of United States origin.  Paragraph 8-8 provides guidance on award of the CAB.  It 
states, in pertinent part, that the CAB is awarded to provide special recognition to Soldiers who personally engage or are engaged by the enemy.  Specific eligibility requirements are that 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 CAB may be awarded by any commander delegated 
authority by the Secretary of the Army during wartime or the USA HRC, ATTN: AHRC-PDO-PA.  Effective 3 June 2005, Commanders delegated authority to award the CAB may further delegate award authority to commanders in the grade of major general or above.  The CAB will be announced in permanent orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the CAB was carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms the applicant was not awarded the CAB by the proper award approval authority in the theater (Iraq) at the time of the incident in question.  

2.  By regulation, in order to support award of the CAB, it is necessary to have evidence confirming that the member was personally present and actively engaging or being engaged by the enemy.  In this particular case, there is no evidence of record or eyewitness accounts corroborating the applicant's presence or involvement in the incident of 8 April 2005 the applicant refers to.  In addition, his OMPF is void of any orders or other documents that indicate he was ever recommended for or awarded the CAB by proper authority while serving in Iraq.  Finally, the CAB is not included in the list of awards documented in his record and/or in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his separation.  

3.  Notwithstanding his personal statement, the applicant has failed to provide independent evidence, and there is no evidence of record, to corroborate his personal level of involvement in the incident in question.  Absent clear and convincing evidence confirming the applicant's presence and involvement in the incident in question, there is an insufficient evidentiary basis to support awarding the CAB in this case.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20090007033



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ABCMR Record of Proceedings (cont)                                         AR20090007033


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