IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090016867 


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 Infantryman Badge.

2.  The applicant states that his unit failed to issue him the Combat Infantryman Badge.  He also states that on or about 30 June 2004, his platoon received enemy fire and they all returned fire.  He returned fire that lasted for awhile; hit a mortar or their ammunition which set off an explosion eliminating the enemy, and the firing stopped after that.  He also states that his entire company, including the cooks, mechanics, and supply personnel received a Combat Infantryman Badge and he wants what he earned.

3.  In support of his application, the applicant provides three statements of support, five pictures, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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's military records show he enlisted in the North Carolina Army National Guard (NCARNG) in pay grade E-1 on 16 October 1987.  He was ordered to active duty in support of Operation Iraqi Freedom and entered on active duty on 1 October 2003.  He was awarded military occupational specialty (MOS) 11B (Infantryman) on 15 April 2004.  He was assigned to Company C, 1st Battalion, 120th Infantry.  He served in Iraq from 1 March to 29 November 2004.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated  7 December 2004, shows the applicant was seen at the Aid Station, Forward Operating Base (FOB) Mackenzie, Iraq, on 12 May 2004, for a back/neck injury, as a result of falling approximately 6 feet from a 5-ton truck.  The final determination was in the line of duty.

4.  A DA Form 2173, dated 30 November 2004, shows the applicant was seen at the Aid Station, FOB Mackenzie, Iraq, on 18 November 2004, for depression/
stress, as a result of being stationed in Iraq.  The final determination was in the line of duty.

5.  On 26 January 2005, the applicant was issued orders retaining him on active duty for the purpose of completion of medical care and treatment.  

6.  The applicant was honorably retired from active duty on 1 October 2006, by reason of temporary disability and placed on the Temporary Disability Retired List.

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not list the Combat Infantryman Badge.

8.  There are no orders in the applicant’s service personnel records that show he was awarded the Combat Infantryman Badge.

9.  The applicant submitted five pictures for which he offers no information pertaining to them.  He also submits three statements.  In each statement, the authors stated that the applicant was involved in direct combat in Iraq and received and returned fire at the enemy.


10.  Army Regulation 600-8-22 (Military Awards) provides in pertinent part, that there are basically three requirements for award of the Combat Infantryman 
Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry or special forces specialty, satisfactorily performed duty while assigned or attached as a member of an infantry, ranger, or special forces unit of a brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty, in a unit actively engaged in ground combat with the enemy.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record fails to show the applicant was awarded the Combat Infantryman Badge.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that an applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental or smaller size, and must have served in active ground combat while assigned or attached to this infantry unit.

2.  The evidence shows the applicant served in an infantry MOS, in an infantry unit in Iraq; however, the evidence of record does not confirm, and he has not sufficiently shown, that he was personally present and participated in active ground combat while assigned or attached to this infantry unit.  His records also do not show he received any awards for valor or achievement that would give an indication he was exposed to active ground combat against the enemy.

3.  The statements and pictures submitted in support of the applicant’s application were carefully considered; however, they provided neither probative evidence nor a convincing argument in support of awarding him the Combat Infantryman Badge. There are no evidence or official records to corroborate the statements submitted in support of the applicant’s request.

4.  The applicant stated that his entire company, including cooks, mechanics, and supply personnel were awarded the Combat Infantryman Badge.  However, all Soldiers are provided basic combat skills training after they enter the Army.  This is provided to ensure that all Soldiers have the survival skills to perform basic infantry missions when the need arises.  Therefore, the exigencies of combat require non-infantry Soldiers to temporarily perform the basic infantry duties that all Soldiers are trained to do; however, it is not a basis for the award of the 
Combat Infantryman Badge.  It is again noted that the recipient of a Combat Infantryman Badge must be an infantryman or have an infantry or special forces specialty to meet one of the eligibility requirements for this award.  Therefore, Soldiers who do not meet this criteria are not eligibility for this award and the award is not automatically given because a Soldier, other than an infantryman, was assigned or attached as a member of an infantry, ranger, or special forces unit.

5.  Based on the available evidence, the applicant is not entitled to award of the Combat Infantryman Badge and to have it added to his DD Form 214.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090016867



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ABCMR Record of Proceedings (cont)                                         AR20090016867



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