IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090007205 


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 the Board's denial of his request for the Combat Action Badge (CAB).

2.  The applicant states that the witness statements he has obtained verifies that he is entitled to the CAB.

3.  The applicant provides documents which he lists in his request.

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 AR20070009471 on 25 September 2007.

2.  The statements provided by the applicant are new evidence which requires the Board to reconsider the applicant's request.

3.  The applicant's military service records show that he enlisted in the Army National Guard of Oregon on 5 June 2003.  He was ordered to active duty as an Army National Guard Soldier on 12 October 2004.  His primary military occupational specialty (PMOS) at that time was 12B (Combat Engineer).  His unit of assignment during mobilization was Company A, 2nd Battalion, 162nd Infantry, Fort Bliss, Texas.

4.  According to Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Orders Number 294-70, dated 20 October 2004, the applicant was assigned and attached to Headquarters, 3rd Army Central Command (ARCENT), Camp Doha, Kuwait in support of Operation Iraqi Freedom (OIF) not to exceed 183 days.  His will proceed date started on 22 October 2004.

5.  In an undated DA Form 4187 (Personnel Action), the applicant's commander submitted the applicant for the Combat Infantryman Badge (CIB).  In that form his commander stated that the applicant was an infantryman, military occupational specialty (MOS) 11B, and that "2nd Platoon A [Company] 2-162 [Infantry] came under small arms and Rocket Propelled Grenade (RPG) fire.  [The applicant] was personally present and under hostile fire in a unit actively engaged in ground combat with the enemy."  That request was countersigned by the battalion commander and was approved by a brigadier general.

6.  A DA Form 2173 shows that the applicant was injured on 11 January 2005, in Camp Volunteer, Iraq, when he fell from a guard tower sustaining a fracture to his left calcaneous.

7.  On 21 January 2005, the applicant was redeployed to Madigan Army Medical Center, Fort Lewis, Washington for further medical care.

8.  In the new statements provided by the applicant it was stated:

	a.  By a staff sergeant, that on 11 November 2004, the applicant's unit was actively engaged by the enemy who were firing small arms and RPGs at them.  The applicant was present and actively involved with the contact.

	b.  by another staff sergeant who was the platoon sergeant, that the applicant was in his platoon on 11 November 2004 when the platoon came under small arms and RPG fire.  The platoon responded and neutralized the threat.  The applicant was there and performed his duties and helped eliminate the threat.

	c.  by a specialist, that on 11 November 2004, when the platoon came under small arms and RPG fire, the applicant actively returned fire and engaged the enemy.

	d.  by a private first class, that on 11 November 2004, when the platoon came under small arms and RPG fire, the applicant was present and actively involved in the fight.

	e.  by a first lieutenant (now a captain), that on 11 November 2004, when the platoon came under small arms and RPG fire, the applicant "was personally present, performing the duties as a grenadier/driver in an infantry platoon.  [The applicant] was present and under direct fire and was returning fire.  The enemy was less than 50 meters from us at the time."

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officers who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

10.  Army Regulation 600-8-22 states that on 2 May 2005, the Chief of Staff, Army approved the creation of the CAB to provide special recognition to Soldiers who personally engaged, or are engaged by the enemy. 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.  It 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.

DISCUSSION AND CONCLUSIONS:

1.  By the statements provided by the applicant in his request for reconsideration, there is no doubt that he served under fire and returned fire in a combat situation.  
2.  While the applicant's commander submitted him for the CIB, he was a combat engineer.  As such, he was not eligible for the CIB.

3.  The CAB may be awarded retroactively to 18 September 2001.  However, this award only became an authorized badge on 2 May 2005, which was after the incident (11 November 2004) which established the applicant's eligibility for the CAB.

4.  As such, it would appear that the applicant was not awarded the CAB only because that badge did not exist at the time.

5.  It would now be appropriate to award the applicant the CAB since it is apparent that he met all the criteria for that badge.

BOARD VOTE:

____x____  ___x____  ____x____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20070009471, dated 25 September 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was awarded the CAB for combat action which occurred on 11 November 2004.




      _______ _   _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)                                         AR20090007205



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ABCMR Record of Proceedings (cont)                                         AR20090007205



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