IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090008552 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to add the Combat Action Badge (CAB) and the Iraq Campaign Medal (ICM).

2.  The applicant states he served in Iraq from April 2003 to April 2004 at the time he was receiving hostile fire pay and was personally present and actively engaging or being engaged by the enemy.  He also states that he served in Iraq during the liberation of Iraq from 19 March 2003 to 1 May 2003.  

3.  The applicant provides a copy of his DA Form 638 (Recommendation for Award), dated 18 December 2003; his award certificate for the Army Commendation Medal; his deployment orders, dated 27 February 2003; and his DD Form 214 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 enlisted in the Regular Army on 5 August 1999 and continued to serve on active duty until he was retired on 1 February 2005 by reason of temporary disability.  At the time of his discharge, he had completed 5 years, 5 months, and 27 days of active military service.  His DD Form 214 shows he served in support of Operation Iraqi Freedom from 5 April 2003 to 5 April 2004.

3.  The applicant's DD Form 214 shows he was awarded the Army Commendation Medal, the Joint Service Achievement Medal, the Army Achievement Medal (4th Award); the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal (GWOTEM), the Korean Defense Service Medal, the Global War on Terrorism Service Medal, the Army Service Ribbon, the Army Good Conduct Medal, the North Atlantic Treaty Organization (NATO) Medal, the Overseas Service Ribbon, and the Air Assault Badge.

4.  The applicant's service personnel record is void of any orders or other documents showing he was ever recommended for or awarded the CAB by proper authority while serving on active duty.  

5.  The applicant provided a copy of a DA Form 638, dated 18 December 2003, which recommended him for award of the Army Commendation Medal for meritorious service in Iraq.  Block 20 of this form stated, in part, "SGT H____'s dedication to duty and exceptional duty performance allowed for the quick evacuation of a wounded soldier in his team.  With PFC B______ bleeding profusely from a grenade attack, SGT H_____ stayed at his post of RTO, transmitting vital information concerning the grenade attack, and relaying information which led to medical personnel being fully prepared to treat the wounded soldier, thus preventing further medical complications."

6.  On 16 September 2009, a member of the Board’s staff contacted the applicant to inform him that by regulation, both the ICM and GWOTEM could not be awarded for the same period of service in Iraq and that he would have to elect only one of these awards for his Iraq service.  In an electronic mail message, dated 16 September 2009, the applicant requested to keep the award of the GWOTEM.  

7.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 8-8 of the awards regulation contains guidance on the CAB.  It states, in pertinent part, that in order to qualify for the CAB, a member must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized; he/she must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement; and he/she must be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or Combat Medical Badge.  The CAB is authorized from 18 September 2001 to a date to be determined.  The regulation stipulates that the award is not authorized for qualifying service in any previous conflict.  

8.  Army Regulation 600-8-22 contains the Army's awards policy.  Paragraph 2-17 contains guidance on the ICM.  It states in pertinent part that the ICM is authorized to members who have served in direct support of Operation Iraqi Freedom (OIF).  The area of eligibility encompasses all land area of the country of Iraq and the contiguous water area out to 12 nautical miles and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The ICM period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of OIF.  It further stipulates that service members who qualified for the GWOTEM by reasons of service between 19 March 2003 and 28 February 2005 in an area for which the ICM was subsequently authorized will remain qualified for that medal.  Upon application, any such service member may be awarded the ICM in lieu of the GWOTEM for such service.  No service member will be entitled to both medals for the same act, achievement, or period of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the CAB should be added to his DD Form 214 because he was receiving hostile fire pay and was personally present and actively engaging or being engaged by the enemy in Iraq was carefully considered.  There is sufficient evidence on which to grant the relief requested.

2.  By regulation, in order to award the CAB there must be evidence that a Soldier serving in an area where hostile fire pay or imminent danger pay is authorized was personally present and actively engaged or was being engaged by the enemy.  The Soldier must have performed satisfactorily in accordance with the prescribed rules of engagement and he must not have been assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or Combat Medical Badge.

3.  Although the applicant's record is void of any orders indicating he was recommended for or awarded the CAB by proper authority while serving in Iraq, he provided a DA Form 638, recommending him for award of the Army Commendation Medal, which confirms his participation in active ground combat while serving in Iraq.  Therefore, this document is accepted as sufficient evidence to support award of the CAB and correction of his DD Form 214 to show this award. 

4.  Based on the applicant's service in Iraq/Kuwait in support of Operation Iraqi Freedom, he is eligible for award of the GWOTEM or the ICM.  The regulation precludes receipt of both of these awards for the same act, achievement, or period of service.  Therefore, the applicant elected to keep GWOTEM in lieu of the ICM for his service in Iraq.

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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to add award of the CAB.



      _______ _   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)                                         AR20090008552



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ABCMR Record of Proceedings (cont)                                         AR20090008552



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