IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100019638 


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, that he should be awarded the CAB for his actions on or about 25 May 2004 at Camp Victory, Baghdad, Iraq.  He goes on to state that he was sleeping in his quarters when he heard a loud thud and he immediately opened the door and determined that his forward operating base (FOB) had come under attack from insurgent forces.  He continues by stating that an unexploded rocket’s tail fins were sticking out of the ground approximately 10 meters from his door.  Explosive Ordnance Disposal was immediately called to dispose of the rocket.  He also states his request has been unjustly denied by officials at the Human Resources Command – Alexandria (HRC-ALEX) Awards Branch on two separate occasions and that HRC officials have misapplied Army Regulations and underestimated the likelihood of injury in his case.

3.  The applicant provides a tabbed notebook which contains a two-page Memorandum for Record explaining his application and listing all 15 enclosures that were submitted with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a United States Army Reserve (USAR) second lieutenant on 11 December 1998 and detailed as an air defense artillery officer.  He was ordered to active duty on 19 January 1999 and he attended the Air Defense Artillery Officer Basic Course at Fort Bliss, Texas.  He remained on active duty and he was promoted to the rank of captain on 1 August 2002.

2.  In February 2004 the applicant deployed to Kuwait and Iraq as part of Force Package 3, with the 1st Cavalry Division for duty as the battalion assistant S-3 in support of Operation Iraqi Freedom II.  During his tour he was selected for the Army’s Funded Legal Education Program (FLEP) for full-time law school attendance at government expense.

3.  He completed the FLEP and was subsequently transferred to the Judge Advocate General's Corps.  He was promoted to the rank of major on 3 July 2009.

4.  Meanwhile, on 13 August 2008, the applicant submitted a request to be awarded the CAB.  His request was disapproved by the HRC-ALEX Awards Branch on 23 September 2008 because it was determined the incident in question did not meet the intent of the badge.

5.  The applicant filed a request for reconsideration and again the HRC-ALEX Awards Branch denied his request.

6.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the CAB are branch and MOS immaterial.  It was approved by the Army on 
2 May 2005.  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.  Award of the CAB is authorized from 18 September 2001 to a date to be determined.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the CAB due to his close proximity to the unexploded rocket and the likelihood that he would have been injured or killed had the rocket exploded has been considered.  However, there is insufficient evidence to show with any degree of certainty that such would have been the case.

2.  The supporting documents provided by the applicant have been considered as well; however, they are not sufficient to determine that there was the reasonable possibility that he would have sustained an injury had the rocket exploded, especially given that the warhead was embedded in the ground.

3.  The applicant’s contention that officials at HRC-ALEX misapplied the applicable regulation and underestimated the potential for injury in his case has also been considered and found to lack merit.  Officials at HRC-ALEX have been officially tasked to review such cases and the applicant has provided no evidence to show that he was not given a fair assessment of his case by that agency.

4.  A review of the supporting statements from individuals who were in the same building as the applicant failed to reveal that any of those officers received the CAB for the incident in question.  

5.  While it is indeed fortunate that the rocket did not explode, it appears that simply being awakened by a rocket that does not explode or causes no harm to anyone does not meet the intent of the CAB.  Accordingly, it appears that the decision by the HRC-Alex Awards Branch was appropriate in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the 



United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ 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)                                         AR20100019638



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019638



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1