IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090011870
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.
2. The applicant states he was in formation the day before being deployed into Iraq from Kuwait when two rockets landed 30-50 feet away from him, hitting two other Soldiers. He was in several other rocket attacks at Forward Operating Base (FOB) Speicher, Iraq, as well as being shot at while his unit, the 263rd Maintenance Company, was in convoy from Camp New York, Kuwait, to FOB Speicher, Iraq, in April 2003.
3. The applicant provides no supporting documentation.
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 10 May 2000 and was honorably released from active duty on 8 January 2005 with transfer to the Army Reserve Control Group (Reinforcement).
3. The available record contains no documentation of his service in Iraq beyond what is recorded on his DD Form 214 (Certificate of Release or Discharge from Active Duty).
4. His 8 January 2005 DD Form 214 shows service in Iraq from 2 April 2003 through 1 April 2004 and award of the Army Lapel Button, the Army Commendation Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the National Defense Service Medal, the Korea Defense Service Medal, the Army Service Medal, and the Overseas Service Ribbon.
5. The applicant enlisted in the Army National Guard and was mobilized for the period 20 May 2007 through 31 May 2008.
6. The DD Form 214 issued 31 May 2008 shows service in Iraq from 27 July 2007 through 11 May 2008. His awards are shown as the Army Commendation Medal, the Army Good Conduct Medal, the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the Korea Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon (3rd Award), the Armed Forces Reserve Medal with "M" Device, the Army Lapel Button, the Iraq Campaign Medal with two bronze service stars, and the Driver and Mechanic Badge with Mechanic Bar.
7. Army Regulation 600-8-22 (Military Awards) states that the Combat Action Badge was created on 2 May 2005 to provide special recognition to Soldiers who personally engaged or are engaged by the enemy. The requirements for award of the Combat Action Badge 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 Combat Action Badge. However, it is not intended to award the Combat Action Badge 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. Award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.
DISCUSSION AND CONCLUSIONS:
1. The applicant states, in effect, that he was shot at during convoys and was present where and when rockets hit his base.
2. The Combat Action Badge, while retroactive to 18 September 2001, was not created until after the applicant had separated from active duty and there is no centralized listing of units that came under fire.
3. Without official documentation to support the applicant's statements that he was under hostile fire, there is insufficient evidence to show the applicant qualified for award of the Combat Action Badge.
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.
___________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) AR20090011870
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ABCMR Record of Proceedings (cont) AR20090011870
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