IN THE CASE OF:	

		BOARD DATE:	  06 May 2010

		DOCKET NUMBER:  AR20100008043 


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 that he be awarded the Combat Action Badge (CAB).

2.  The applicant states, in effect, a senior noncommissioned officer (NCO) applied his personal criteria and interpretation of the regulation for award of the CAB and that he believes this NCO's interpretation influenced the subsequent reviews and ultimately he was denied the CAB.

3.  The applicant adds that all relevant documentation was not forwarded with his request for the CAB, and the disapproval of his request was contrary to Department of the Army policy.

4.  The applicant provides his CAB awards packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that on 18 September 2006, while he was serving as a 1st Sergeant, he submitted a request for the CAB for action on 21 and 22 March 2005 while in Iraq.  In support of that request he submitted statements which show that on 21 March 2005, mortar rounds landed within 150 to 200 meters from the compound, and on 22 March 2005 mortar rounds passed within 100 to 150 feet over the top of the compound.

2.  On 16 February 2007, the applicant's commanding general disapproved the applicant's request for the CAB.  The commanding general stated "I do not concur.  The rounds landed at least 150 meters away.  The justification on the enclosed documents are for what could have happened if the mortars were [unreadable]."

3.  On 4 March 2008, a Training and Doctrine Command (TRADOC) command sergeant major (CSM) responded to another TRADOC CSM concerning the applicant's request for the CAB.  In his response the CSM stated that:

   a.  Just being in the flight path of a mortar or rocket or being on the same fire base that is attacked does not meet the criteria for award of the CAB.

   b.  The most important criteria for the CAB for indirect fire is proximity to detonation and the likelihood a Soldier could have been injured by the blast.

	c.  based on the above criteria and the witness statements the applicant's request for award of the CAB could not be supported.

4.  On 31 October 2008, the Human Resources Command, Alexandria (HRC-A) disapproved the applicant's request for the CAB.  HRC-A stated the mortar rounds landed between 200 and 250 meters away from the applicant's location and there is no indication that the applicant could have reasonably been injured by the explosions.  Therefore, he was not considered to have been personally engaged by the enemy.

5.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the CAB 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 CAB.  However, it is not intended to award the CAB 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's contention that he was denied the CAB due to a recommendation to disapprove the CAB by a senior NCO who applied his personal criteria and regulatory interpretation cannot be accepted as a basis to grant the applicant's request.
2.  While the NCO's statement may have influenced the final decision, it is noted the applicant's commanding general refused to favorably endorse the applicant's request well prior to the senior NCO's statement.  As such, the NCO apparently held similar views as the applicant's commanding general concerning the applicant's eligibility for the CAB.

3.  The applicable regulation simply states that, to be eligible for the CAB, a Soldier must be personally present and actively engaging or being engaged by the enemy.  However, the regulation does not further define this criteria.  Therefore, common sense must prevail in the determination of whether a Soldier is eligible for the CAB.  

4.  In this regard, does combat in the same theater qualify a Soldier for the CAB?  If not, does combat in the same province qualify the Soldier for the CAB?  Obviously, these are extreme examples, but are used to illustrate the point that the proximity of the combat must be considered when determining eligibility for the CAB.

5.  In this case the nearest mortar rounds were landing between 150 to 250 meters from the applicant's position and he was not in danger of being wounded by those rounds.

6.  The HRC-A's determination to deny the applicant the CAB appears to be proper and just.

7.  There is no evidence that all relevant documentation was not forwarded with the applicant's request for the CAB, or that the disapproval of his request was contrary to Department of the Army policy for award of the CAB.

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.




      _______ _   _XSent to Jill on 11 May 2010______   ___
               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)                                         AR20100008043



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)