BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090018525 


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 (CIB).

2.  The applicant states he separated prior to his contract ending while his unit was still deployed to Afghanistan.  He states he is a combat veteran and he was awarded the CIB in Afghanistan.

3.  The applicant provides a copy of a Standard Form (SF) 600 (Chronological Record of Medical Care) and 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 record shows he enlisted in the Regular Army on 11 November 2003.  It also shows he was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant's record shows he earned the following awards during his active duty tenure:

* Afghanistan Campaign Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Parachutist Badge

4.  The applicant's record is void of any orders or other documents showing the applicant was ever recommended for or awarded the CIB by proper authority while serving in Afghanistan.

5.  The applicant's record contains a DA Form 4856 (Development Counseling Form), dated 10 August 2005.  This form contains a record of counseling of the applicant by his squad leader.  The summary of counseling portion of the form shows the squad leader counseled the applicant on his unsatisfactory performance of combat duty.  It indicates, while the platoon was in contact with enemy personnel, the applicant refused a lawful order to get up and fight four times.  The squad leader stated the applicant showed an inability to control his actions under fire and put himself and his squad mates in great danger by not returning fire on the enemy.  It also indicated the applicant showed an inability to control himself and to do his job as an M-249 gunner on numerous earlier missions.  The "Plan of Action" portion of the form indicated the plan was to begin the applicant's separation processing under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other physical condition not a disability.  The "Session Closing" portion of the form indicated the applicant agreed with the information contained on the counseling form.

6.  After undergoing a mental status evaluation and his separation being recommended by his commander and approved by the separation authority, the applicant was honorably discharged on 8 September 2005 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "physical condition not a disability."

7.  The DD Form 214 issued to the applicant upon his discharge shows he completed 1 year, 10 months, and 5 days of active military service and he held the rank/grade of specialist (SPC)/E-4 at the time of his discharge. 

8.  The applicant provides an undated SF 600 showing he was treated for nausea and vomiting by a medical specialist, resulting from a grenade explosion that took place within 5-10 meters of him during a firefight.

9.  Army regulation 600-8-22 (Military Awards) contains the Army's awards policy. Section II, chapter 8 contains guidance on combat and special skill badges.  Paragraph 8-6 provides guidance on award of the CIB.  It states in order to support award of the CIB the member must meet the following three requirements:

	a.  Be an infantryman satisfactorily performing infantry duties;

	b.  Be assigned to an infantry unit during such time as the unit is engaged in active ground combat; and

	c.  Actively participate in such ground combat.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be awarded the CIB based on his combat service in Afghanistan was carefully considered.  However, the evidence is not sufficient to support this claim.

2.  By regulation, in order to be awarded the CIB an infantry Soldier must have satisfactorily performed infantry duties in a qualifying infantry unit of brigade, regimental or smaller size, while the unit was engaged in active ground combat with enemy forces.  

3.  Although the applicant served with a qualifying infantry unit in Afghanistan and was present with the unit while it was engaged in active ground combat with enemy forces, it appears his performance of duty during these engagements was not satisfactory, as evidenced by his being formally counseled and ultimately separated early based on refusing orders to participate in combat with his unit while it was actively engaged with enemy forces.

4.  Absent any evidence of record or independent evidence provided by the applicant to confirm his satisfactory performance in combat, or confirming he was recommended for or awarded the CIB by proper authority while on active duty, there is an insufficient evidentiary basis to support award of the CIB in this case.

5.  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)                                         AR20090018525



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ABCMR Record of Proceedings (cont)                                         AR20090018525



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