IN THE CASE OF:	

		BOARD DATE:	  9 March 2010,

		DOCKET NUMBER:  AR20090015549


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, the award of the Combat Action Badge (CAB).

2.  The applicant states, in effect, he should be awarded the CAB for service in Iraq on 26 July 2007, when a 7.62 round fired from the ground hit a helicopter he was flying on.  He claims the round impacted 3 feet from his head at eye level.  He states that the Army Human Resources Command (USAHRC), Alexandria, VA, returned his request for the award without action and requested an additional eyewitness statement.  He states that he is unable to obtain any additional eyewitness statements and indicates his belief that the USAHRC’s decision is in error and violates the existing awards regulation.

3.  The applicant provides, in support of his application, copies of a self-authored memorandum, dated 1 September 2009; a DA Form 4187 (Personnel Actions), dated 17 March 2009 and forwarding memorandum from the Commander, Headquarters, U.S. Army Recruiting Command, Fort Knox, KY, subject:  Request Retroactive Award of the CAB, dated 1 April 2009; a USAHRC, Alexandria memorandum, subject: Request for Award of the CAB for [applicant's name and social security number (SSN)], dated 24 April 2009; a self-authored memorandum for record, subject:  Sworn Statement of Facts, CAB, [applicant's name], dated 1 July 2009, with five enclosures including one eyewitness statement by Sergeant First Class S----- F------, dated 22 June 2009; another USAHRC memorandum, subject:  Request for Award of the CAB for [applicant's name and SSN], dated 26 August 2009; and an extract of Army Regulation    600-8-22 (Military Awards) pertaining to award of the CAB in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows that after previously serving in the Reserve Component, he was appointed a captain in the Judge Advocate General’s (JAG) Corps of the Regular Army (RA).  He entered active duty on    11 November 2005.  He currently remains on active duty at the 6th U.S. Army Recruiting Brigade, Las Vegas, NV.

2.  On 13 June 2007, while the applicant was serving at Fort Bliss, TX, orders were published directing his deployment to Iraq in support of Operation Iraqi Freedom and his assignment to the U.S. Army Trial Defense Service (USATDS), Multi-National Corps – Iraq.

3.  On 9 December 2007, the applicant was awarded the Bronze Star Medal for exceptionally meritorious service in Iraq during the period 24 June 2007 through 
15 February 2008.

4.  There are no orders or other documents on file in the applicant's Official Military Personnel File (OMPF) that indicate he was ever recommended for or awarded the CAB by his local chain of command while serving in Iraq.  His OMPF is also void of any serious incident reports or flight reports that indicate the applicant was travelling on an aircraft that was fired upon by hostile forces, or of any documents indicating that he ever engaged or was engaged by enemy forces while serving in Iraq.

5.  On 24 April 2009, the Chief, Military Awards Branch, USAHRC responded to a request for retroactive award of the CAB submitted by the applicant through his current chain of command at the 6th U.S. Army Recruiting Brigade.  This request was returned without action and the applicant was informed that retroactive CAB requests must be submitted on a DA Form 4187 with an endorsement recommending approval/disapproval through the first brigadier general (BG) commander in the chain of command and must include the following:  deployment orders, a copy of the Soldier's Officer Record Brief (ORB) or DA Form 2-1 (Personnel Qualification Record), a narrative description of the qualifying incident, and supporting documentation (examples include official unit reports, casualty reports, line of duty investigation, two or more eyewitness statements from Soldiers who participated in the same ground combat action, valor awards, or previously-awarded Purple Heart orders, if applicable).  It was also pointed out that the eyewitness statement provided was unsigned and a supporting 
memorandum provided was not acceptable because the major providing it was not present at the incident.  It finally informed the applicant he could resubmit his request with a revised signed statement from the third-party eyewitness and additional supporting documentation.

6.  On 26 August 2009, the Chief, Military Awards Branch, USAHRC, responded to a second CAB request from the applicant, which included the initial eyewitness statement, now signed, and a new self-authored witness statement from the applicant.  This request was also returned without action with the comments that while the applicant's statement could be accepted as the narrative description of events, it could not be considered an additional eyewitness statement and that additional supporting documentation was still required.

7.  The applicant provides a picture and photograph depicting the location where he indicates a round struck the aircraft that he was riding on the day in question.  He also submits an eyewitness statement from a staff sergeant who corroborates his claim and indicates a round struck the UH-60 Blackhawk Helicopter in which they were passengers on 26 July 2007.  He also states the round penetrated six to eight inches behind his head and three feet from the applicant’s head.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  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; and he/she must be personally present and actively engaging or being engaged by the enemy.  The regulation stipulates that applications (with supporting documentation) for retroactive awards of the CAB will be forwarded through the first two-star general in the chain of command.  The regulation further stipulates that the CAB is not intended to be awarded to all Soldiers who serve in a combat zone or imminent danger area.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the CAB based on an incident that occurred in Iraq on 26 July 2007 and the supporting documentation he provided was carefully considered.  However, by regulation, in order to support award of the CAB, there must be evidence that the member was personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.


2.  The applicant's record is void of any indication that he requested or that his chain of command in Iraq supported award of the CAB for the 26 July 2007 incident in question.  Further, there are no documents or official reports on file or provided by the applicant that confirm the incident or that verify that the round that penetrated the aircraft was the result of enemy action.  As a result there is insufficient evidence to confirm the applicant met the regulatory requirement to show he was actively engaged or being engaged by the enemy.

3.  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)                                         AR20090015549



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ABCMR Record of Proceedings (cont)                                         AR20090015549



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