IN THE CASE OF:	

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090009110 


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:

The applicant defers to counsel concerning his reconsideration request.  New arguments and supporting documents are provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's earlier petition to the Army Board for Correction of Military Records (ABCMR) to be awarded the Iraq Campaign Medal (ICM) and Combat Action Badge (CAB).

2.  Counsel states, in effect, that in the previous Record of Proceedings (ROP), paragraph 6 of the Consideration of Evidence section, stated the applicant had been issued a DD Form 215 (Correction of DD Form 214); however, the applicant indicates he was never issued a DD Form 215.  He further states that paragraph 7 of the Consideration of Evidence section of the ROP indicates the applicant did not complete any periods of military service subsequent to
30 November 1992; however, an attached DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms that he had active duty service between 7 February and 27 November 2003, and that he served in Operation Enduring Freedom.  He further indicates that military pay records are being provided that satisfy the CAB criteria outlined in paragraph 8 of the Consideration of Evidence section of the original ROP. 

3.  Counsel provides a self-authored letter with the new arguments outlined above and the documents identified therein in support of the reconsideration request, including an undated support statement from the applicant's former platoon sergeant. 

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 AR20080015320 on 12 February 2009.

2.  During the original review of the applicant's case, the Board concluded there was insufficient evidence showing that the applicant had completed a qualifying period of service on or after 18 September 1981 (it should have read                “18 September 2001”).  As a result, there was insufficient evidence to support award of the ICM and/or the CAB.  

3.  The applicant's record shows that on 7 February 2003, while a member of the U.S. Army Reserve (USAR), he was ordered to active duty in support of Operation Enduring Freedom (OEF).  He served on active duty until
27 November 2003, at which time he was honorably released from active duty under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of completion of required active service.

4.  The DD Form 214 issued to the applicant upon his REFRAD on 
27 November 2003, shows he completed 9 months and 21 days of active military service during the period covered by the DD Form 214.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or authorized) shows he earned the following awards:  Army Commendation Medal, National Defense Service Medal (2nd Award), Armed Forces Reserve Medal with "M" (Mobilization) Device, Army Service Ribbon, and Overseas Service Ribbon.  Item 18 (Remarks) shows the applicant served in Southwest Asia during the period   26 February 2003 through 21 October 2003 in support of Operation Enduring Freedom.

5.  The applicant's Official Military Personnel File (OMPF) 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.

6.  The applicant provides copies of his DFAS Forms 702 (Leave and Earnings Statements (LES)) that cover his active duty service during the period 13 March 2003 through 15 September 2003.  The LESs show he received hostile fire pay/
imminent danger pay (HFP/IDP) during this period.
7.  The applicant provided a letter of support from his former platoon sergeant who stated the applicant’s unit initially entered Kuwait in February 2003 and advanced into Iraq on 19 March 2003.  The statement indicates that the applicant was at a location where they were "subject to hostile action" and in one instance "an enemy missile or rocket flew overhead in the direction of Kuwait."

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's award policy. 
Paragraph 2-17 contains guidance on the ICM.  It states, in pertinent part, that 
the ICM is authorized to members who served in Iraq for 30 consecutive or 60 non-consecutive days between 19 March 2003 to a future date to be determined by the Secretary of Defense.  One bronze service star shall be worn on the suspension and campaign ribbon of the ICM for 1 or more days of participation in each designated campaign phase.  Approved designated ICM campaign phases and inclusive periods are:  Liberation of Iraq from 19 March 2003 through 1 May 2003; Transition of Iraq from 2 May 2003 through 28 June 2004; Iraqi Governance from 29 June 2004 through 15 December 2005; and National Resolution from 16 December 2005 to a date to be determined.

9.  Paragraph 2-19 of the awards regulation contains guidance on award of the 
Global War on Terrorism Service Medal (GWOTSM).  It states, in pertinent part, that the GWOTSM is authorized to all members who served on active duty outside of the designated areas of eligibility (AOE) on or after 11 September 2001 to a future date to be determined.

10.  Paragraph 8-8 of the same regulation contains guidance on the CAB that was approved on 2 May 2005 by the Chief of Staff, Army, to provide special recognition to Soldiers who personally engaged, or are engaged by the enemy.  The CAB is not intended to award all Soldiers who serve in a combat zone or imminent danger area.  It further 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, must be personally present and actively engaging or being engaged by the enemy (emphasis added) and performing satisfactorily in accordance with the prescribed rules of engagement, and must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or Combat Medical Badge.  Service in an HFP/IDP area alone does not satisfy the requirement for award of the CAB; there must be evidence that the member engaged with or was being engaged by enemy and satisfactorily performed assigned duties during the engagement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive the ICM was carefully considered and found to have merit.  The evidence of record confirms he served in Kuwait/Iraq during the period 26 February 2003 through 21 October 2003.  Therefore, he is eligible for the ICM with 2 bronze service stars and this award should be added to his record and DD Form 214 at this time.  Further, given the applicant's service was performed in Kuwait/Iraq, the current entry "Service in Southwest Asia 20030226-20031021" and in item 18 of his DD Form 214 should be deleted and replaced with the entry "SERVICE IN KUWAIT/IRAQ FROM 20030226-20031021."

2.  The evidence of record also confirms the applicant served on active duty outside of a designated AOE for 30 consecutive days after 11 September 2001. As a result he is entitled to the GWOTSM.  Therefore, it would also be appropriate to add this award to his record and DD Form 214.

3.  The applicant's contention the he should be awarded the CAB and the statement provided from his former platoon sergeant was carefully considered.  However, by regulation, in order to award the CAB there must be evidence not only that a member served in an HFP/IDP area, but also that while serving in that area he/she personally engaged with or was engaged by the enemy and performed satisfactorily in accordance with the prescribed rules of engagement.  Service in the area alone does not qualify a member for the CAB.  Additionally, there is no indication in the support statement provided by the former platoon sergeant that the applicant was "personally present and actively engaging or being engaged by the enemy."  The statement indicates that the applicant was at a location where they were "subject to hostile action" and in one instance "an enemy missile or rocket flew overhead in the direction of Kuwait."  As a result, absent any evidence of record or independent evidence provided by the applicant that confirms he engaged with or was engaged by the enemy while serving in Iraq, the regulatory burden of proof necessary to support award of the CAB has not been satisfied in this case.

4.  In the letter from counsel, two matters were presented in regard to paragraphs 6 and 7 of the original ROP on this case.  The first was related to the applicant's non-receipt of a DD Form 215 issued in 1992.  A copy of this DD Form 215 is being enclosed with this ROP for the applicant's information and use, which should resolve this matter.  Regarding the absence of any documents on file in his record relating to active duty service in 2003, this is, in effect, what is being dealt with by addressing his current issues before the Board, which are documenting his Iraq service and award of the CAB.  As a result, since the 
DD Form 214 documenting his active duty service in 2003 has been provided 
and will be incorporated into his OMPF, there is no reason to deal with this matter as a separate issue.  Therefore, since these two matters have been dealt with administratively, they will not be addressed in the final Board recommendation in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___X____  ___X____  ___X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20080015320, dated 12 February 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his 
27 November 2003 DD Form 214 by:

	a.  adding to Item 13 the Global War on Terrorism Service Medal and the Iraq Campaign Medal with two bronze service stars;

	b.  deleting from Item 18 the entry "Service in Southwest Asia 20030226-20031021" and replacing it with the entry " SERVICE IN KUWAIT/IRAQ FROM 20030226-20031021"; and 

	c.  providing him a correction to his DD Form 214 that includes these changes.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the Combat Action Badge.



      ___________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)                                         AR20090009110



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ABCMR Record of Proceedings (cont)                                         AR20090009110



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