IN THE CASE OF:	

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090020746 


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 or the Combat Action Badge.

2.  The applicant states he was awarded military occupational specialty (MOS) 11B (Infantryman) and he was under direct fire by enemy forces.  He states he served with the 812th Military Police Company in Iraq in 2003.

3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 January 2004
* DD Form 215 (Correction to DD Form 214), dated 3 April 2009
* two Certificates of Achievement from the 519th Military Police Battalion
* Certificate of Commendation from the Coalition Provisional Authority
* Certificate of Achievement from the 18th Military Police Brigade
* orders for discharge from the U.S. Army Reserve (USAR)

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 personnel records show he enlisted in the USAR on 23 February 1998 for a period of 6 years.  He had previously served 14 years, 
8 months, and 22 days of service in the USAR and the New York Army National Guard.  He was awarded MOS 11B, effective 11 June 1989.

3.  On 13 February 2003, the applicant was assigned to the 812th Military Police Company, Orangeburg, NY.

4.  The applicant was ordered to active duty as a member of his unit effective 
21 February 2003 for a period of 365 days for the purpose of mobilization for Operation Enduring freedom.

5.  On 25 January 2004, the applicant was released from active duty (REFRAD). He honorably completed 11 months and 9 days of active service this period.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 215 shows he is authorized the Iraq Campaign Medal.  Item 18 (Remarks) shows he served in Iraq from 7 June to 1 September 2003.

6.  A Certificate of Achievement, dated 1 August 2003, awarded to the applicant by the 519th Military Police Battalion states that on 10 June 2003, while under enemy fire, he remained calm and returned accurate fire on enemy positions resulting in the destruction of an enemy ambush.

7.  An undated Certificate of Achievement that was awarded to the applicant by the 519th Military Police Battalion states his efforts made a direct contribution to the success of the 812th Military Police Company.

8.  A Certificate of Commendation, dated 10 October 2003, was awarded to the applicant by the Coalition Provisional Authority for the courage he demonstrated during the initial response to the United Nations bombing in Baghdad, Iraq, on
19 August 2003.

9.  An undated Certificate of Achievement was awarded to the applicant by the 18th Military Police Brigade for his dedication, hard work, and selfless service in support of Operation Iraqi Freedom while assigned to the 812th Military Police Company during the period 16 April 2003 to 10 December 2003.
10.  Military Personnel (MILPER) Message Number 10-078, issued on 16 March 2010, authorizes one bronze service star to be worn on the suspension and campaign ribbon of the Iraq Campaign Medal for 1 or more days of participation in each designated campaign phase.  Based on the applicant's period of service in Iraq he served in the Transition of Iraq (2 May 2003 - 28 June 2004) during his service in Iraq.

11.  Army Regulation 600-8-22 (Military Awards) states the Combat Infantryman Badge is awarded to infantry officers and to enlisted Soldiers and warrant officers who 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 brigade, regimental, or smaller size during any period such unit was engaged in active ground combat, to close with and destroy the enemy with direct fire.  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, to close with and destroy the enemy with direct fire.

12.  Army Regulation 600-8-22 provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Combat Infantryman Badge or the Combat Action Badge.

2.  The applicant held the MOS 11B.  The Certificate of Achievement, dated 
1 August 2003, awarded to him by the 519th Military Police Battalion shows he was personally present and actively engaging or being engaged by the enemy on 10 June 2003.  However, he was not assigned to an infantry unit at the time. Therefore, the applicant is not entitled to the award of the Combat Infantryman Badge.

3.  Although the applicant had an MOS of 11B, he was not assigned to a unit where he could qualify for the Combat Infantryman Badge.  The evidence he presented shows he was personally present and actively engaging or being engaged by the enemy on 10 June 2003.  Therefore, there is sufficient evidence to award him the Combat Action Badge.

4.  The applicant is authorized one bronze service star to be worn on his Iraq Campaign Medal.

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting from item 13 of his DD Form 214 the Iraq Campaign Medal
* awarding him the Combat Action Badge for actions on 10 June 2003
* adding to item 13 of his DD Form 214 the Combat Action Badge and the Iraq Campaign Medal with one bronze service star




      ___________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)                                         AR20090020746



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ABCMR Record of Proceedings (cont)                                         AR20090020746



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