IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100009534 


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 Action Badge (CAB).

2.  The applicant states the following:

a. cites, in part, the regulatory criteria for the approving the CAB as indicated in Army Regulation 600-8-22;

b. on 3 June 2005, the Military Awards Branch (MAB) issued processing procedures for award of the CAB which indicates for those recommendations made for combat related incidents involving attacks by mortar, to state in the accompanying narrative, the proximity of the Soldier to the impacted area in meters and state whether the Solider could have reasonably been injured by the blast detonation, or explosion;

c. in late 2006, he submitted a request for the CAB for one of many actions that occurred during his deployment to Iraq since 2004;

d. on 25 March 2008, the MAB, Army Human Resources Command (AHRC) returned his request for the CAB because multiple dates of action were referenced therein;

e. On 8 December 2008, his brigade commander resubmitted a request for the CAB with the appropriate endorsements and supporting documents and it was denied by the MAB, AHRC on 13 May 2009;

f. on 15 December 2009, he submitted a congressional inquiry;

g. on 2 February 2010, the MAB, AHRC confirmed the presence of enemy action in his case, however incorrectly stated the eyewitness statements indicated the applicant was not at risk of injury from the mortar;

h. his physical position was made clear in the narratives included with his request and in his personal statement;

i. he was walking 10 meters in front of a two story building when a mortar initially hit its roof, skidded off, and exploded in a yard on the other side of the blast wall 25 meters away from his position;

j. the incoming mortar was either the al-Jaleel 60mm HE (burst radius of 25 meters) or the al-Jaleel 82mm HE (burst radius of 35 meters);

k. he indicates that he was clearly within blast, if not the shrapnel radius which includes casing and secondary projectiles;

l. AHRC second guesses his eyewitness statements indicating he was not at risk to be injured by the mortar round, while the awards regulation standard is “whether the Soldier could have been reasonably injured”;

m. AHRC cannot change the term “reasonably” to “risk” unless it is done through a policy change at the Headquarters, Department of the Army level; and

n. he met all the requirements for the CAB pursuant to the awards regulation and AHRC’s denial is arbitrary, capricious, an abuse of discretion, and a violation of due process.

3.  The applicant provides the following documents in support of his application:

* three MAB, AHRC Letters
* DA Form 4187 (Personnel Actions) 
* DA Form 4187-1-R (Personnel Action Form Addendum)
* Mobilization Order
* DA Form 2-1 (Personnel Qualification Record)
* Three DA Forms 2823 (Sworn Statement)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Document titled “Effect Considerations for HE Rounds Burst Radius”
* Xeroxed copy of a mortar and rocket

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows that after having prior active duty service in the United States Air Force, he was appointed a first lieutenant (1Lt)  in the Judge Advocate General’s (JAG) Corps in the United States Army Reserve (USAR) on 3 June 1997.  He was promoted to captain (CPT) on 11 May 2001.

2.  On 21 November 2003, Headquarters, United States Army, Special Operations Command, published Orders Number R325-122.  It shows the applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF) effective 1 December 2003.

3.  On 1 December 2003, the applicant entered active duty.  He served in area of concentration (AOC) 55A (Judge Advocate).

4.  The applicant’s Official Military Personnel File (OMPF) shows his unit was cited for the Meritorious Unit Commendation (MUC) for meritorious service in support of military operations during the period 7 February through 4 October 2004.  It also shows that during that period the applicant earned the following awards:

* Shoulder Sleeve Insignia-Former Wartime Service (SSI-FWTS)
* Global War on Terrorism Service Medal (GWOT)
* Armed Forces Reserve Medal with Mobilization (M) Device

5.  There are no orders or other documents on file in the applicant's 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 that indicate the applicant 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.

6.  On 26 November 2004, the applicant was honorably released from active duty (REFRAD) and transferred to his USAR unit.  The DD Form 214 issued at that contains the following list of awards:

* Army achievement Medal
* Navy Meritorious Unit Commendation
* Navy Good Conduct Medal
* Army Reserve Components Achievement Medal
* National Defense Service Medal (2nd Award)
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Armed Forces Reserve Medal with “M” Device (2nd Award)
* Army Service Ribbon

7.  On 25 March 2008, the Chief, MAB, AHRC returned the applicant’s request for retroactive award of the CAB without action and informed him of the following:

* reference one specific incident in his request
* supporting documents must support the applicant’s participation in the same incident
* eyewitness statements must be from Soldiers who personally witnessed the actions of the applicant and participated in the same combat action
* his option to resubmit his request for the CAB for reconsideration and determination

8.  On 13 May 2009, the Chief, Military Awards Branch, USAHRC, disapproved the applicant’s second request for the CAB.  The Chief indicated the eyewitness statements submitted indicate a mortar round fired at the base, hit a building 10 meters in front of the applicant, deflected off the building, and detonated behind the northwest perimeter wall was, approximately 25 -30 meters from the applicant’s location.  He further indicated that although there was evidence of enemy action, there is no indication that the applicant could have been injured by the explosion and therefore was not considered to have been personally engaged by the enemy.

9.  On 20 February 2010, the Chief, MAB, AHRC responded to a third CAB request from the applicant in which he reiterated the same comments found in his 13 May 2009 response.  The Chief also informed the applicant if he could provide additional eyewitness statements that further clarify his physical location relative to the point of the initial impact and subsequent detonation, as well as information regarding the type of mortar round fired at the base, he may still be considered for the CAB incident.

10.  The Chief, MAB, HRC informed the applicant that if he could not locate such information, he could be considered for an award of the CAB for a different date of action.  The Chief further noted the applicant’s current unit and informed him to submit all additional requests through his current chain of command.

11.  The applicant provides two eyewitness statements who hold the rank of major and who corroborates his claim.  These individuals both indicate the following:

a.  on or about 10 September 2004, a round struck a building 10 - 15 meters in front of the applicant;

b.  the mortar round ricocheted off the building and detonated 25 - 30 meters beyond the northwest perimeter wall;

c. the applicant could have been reasonably killed or injured had the mortar exploded upon initial contact with the building; and

d. following the explosion, they and the applicant proceeded to get their gear and reinforce the Peshmerga guard force who was directing fire in the direction of the mortar launch.

12.  The applicant submitted a self-authored sworn statement and memorandum of law in which he detailed the events of the 10 September 2004 mortar attack and restated his request for the CAB.

13.  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 10 September 2004, 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 was awarded the MUC, SSI-FWTS, GWOTEM, and AFEM w/”M” Device for his service in support of OIF.  However, his record is void of any indication that his chain of command in Iraq supported award of the CAB for the 10 September 2004 incident in question.  Further, there are no documents or official reports on file or provided by the applicant that confirm the mortar attack or indicate it was a result of enemy action.

3.  The eyewitness statements in this case indicate a mortar round hit a building 10 – 15 meters in front of the applicant, ricocheted off the building, detonated 
25 - 30 meters beyond the Northwest perimeter wall, and he could have been reasonably killed or injured.  However, there is no evidence to specifically indicate the length and/or height of the building, or to indicate the place of initial impact in relation to the applicant’s position to confirm the exact proximity in this case.  Further, he was informed by the MAB, AHRC reconsideration would be given his request for the CAB upon providing further clarification to his physical location relative to the point of initial impact and subsequent detonation as well as information regarding the mortar round fired.

4.  Lacking information to the contrary, the regulatory criteria necessary for award of the CAB has not been satisfied in this case.  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)                                         AR20100009534





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 RECORD OF PROCEEDINGS


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