BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100021961 


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:

	a.  he deployed as an individual with the 154th Legal Support Organization to support the U.S. Army Trial Defense Service (TDS) at Camp Victory, Iraq in 2007 and at Bagram Airbase, Afghanistan in 2008.  On 13 June 2007, at approximately 1400 hours, two rockets landed approximately 20 and 50 meters from a building in which he worked and he was present at the time of impact.  The two rockets destroyed the TDS vehicle parked just outside and sprayed shrapnel into the TDS building.  No "Hesco" barriers or "T-walls" protected the TDS building and the exterior windows of the building shattered.  Personnel inside the building (including himself) were located in the direct path of the rocket shrapnel, which was stopped by a layer of protective film covering the exterior window.

	b.  all administrative remedies have been exhausted since the U.S. Army Human Resources Command (HRC) disapproved a command-endorsed packet for the CAB on 30 July 2009.  The HRC denial is an error or injustice for three reasons:

		(1)  the CAB is issued when the badge criteria are met;

		(2)  the HRC denial applies the wrong standard for the CAB; and


		(3)  even under the higher HRC standard these facts support issuing the CAB.

	c.  his supporting material, including recommendation memoranda, sworn statements, and photographs, meets the Army Board for Correction of Military Records (ABCMR) preponderance of the evidence standard for establishing an error or injustice.  The ABCMR should grant the correction application and issue direction to HRC to issue the CAB.

	d.  the facts in his case clearly fit the standard for award of the CAB: performance of 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; and the Soldier is assigned to a unit that qualifies the Soldier for the award.

	e.  his original award packet documents all these factors.  Assignment orders and DD Form 214 (Certificate of Release or Discharge from Active Duty) document that hostile fire pay was authorized and he was assigned to a unit that qualified him for the award.  His award packet contained numerous photographs and sworn statements that document he was engaged by the enemy.

	f.  the HRC denial memorandum concedes all but the second factor, that he was "not considered to have been personally engaged by the enemy" because "there is no indication that CPT [applicant's last name] could reasonably have been injured by the explosions from his position inside the building."  This is the wrong standard for "personally engaged by the enemy" and the CAB should be awarded.
 
	g.  the HRC denial memorandum uses an award standard of whether he "could reasonably have been injured by the explosions."  This standard is similar to that used for award of the Purple Heart, which requires being wounded or killed by enemy action.  The CAB, on the other hand, requires evidence that the Soldier "be personally present and actively engaging or be engaged by the enemy…."  Guidance on the meaning of "or be engaged by the enemy" can be found in ALARACT [All Army Activities] 128/2005, Delegation of CAB Approval.  Paragraph 5(c) states that "For the purpose of awarding the CAB, attacks by mortars, rockets, rocket-propelled grenades, improvised explosive devices, suicide bombers, or other projectiles qualify for the badge."  No separate standard in any of the regulatory or administrative guidance for the CAB requires a reasonable likelihood of injury.

	h.  per Army Regulation 600-8-22 (Military Awards) and ALARACT 128/2005, proximate attack by enemy rockets qualifies for award of the CAB.  The CAB packet submitted documents a 20-meter proximate attack by enemy rockets that exposed him to shrapnel spray.  One recommendation memorandum provided by a lieutenant colonel explicitly states that "had the shrapnel penetrated the window, it would likely have caused injury within."  At the time of impact, he and a staff sergeant were both seated inside a building in the direct path of the shrapnel had it not been stopped by the film covering the window.  Although the factual conclusion of the HRC denial memorandum that "there is no indication that CPT [applicant's last name] could have reasonably been injured by the explosions from his position inside the building" is refuted, the standard used in the denial memorandum does not appear in the regulation and improperly adds an injury component to the CAB qualification that the Soldier be engaged by the enemy.  

	i.  the HRC denial memorandum states there was no indication offered that he could have reasonably been injured from his location inside the building.  Although this is not the standard for award of the CAB, the facts documented in the award packet meet even this higher HRC standard for award of the CAB.  A support memorandum provided by a lieutenant colonel explicitly states the exterior window of the building shattered from rocket shrapnel and that "had the shrapnel penetrated the window, it would likely have caused injury within."  The building was not protected by "T-walls" or "Hesco" barriers, and shrapnel and debris from the two rockets hit the side of the building, the front door, and the large glass window facing the front of the building.  He provided a photograph depicting the front windows of the building that was penetrated by shrapnel from the rocket.  Personnel sat within 5 meters of this window with no separating walls or barriers.  At the time of the impact he was seated at his desk in the building and in the direct path of the shrapnel spray that impacted the front window.  He provided a photograph showing a hole in the exterior of the building.  The photograph illustrates that shrapnel fully penetrated the exterior of the building.  Other photographs illustrated the unprotected nature of the front of the building and the proximity of the shrapnel that hit the front window to the personnel (including him) working inside.

	j.  in summary, the CAB recommendation packet does not document some distant rocket attack.  The rocket attack at 1400 hours on 13 June 1007 was proximate (20 meters and 50 meters), sprayed shrapnel onto the TDS vehicle and exterior of his building, and nearly penetrated the front windows which likely would have caused injury inside.  Moreover, at the time of impact he was seated at his desk in the building in the direct path of the shrapnel.  Although the CAB 


standard does not require a reasonable likelihood of injury after being engaged by the enemy, even that threshold is met factually in his case. 

3.  The applicant provides seven enclosures outlined on his self-authored memorandum, dated 20 August 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant was ordered to active duty from the U.S. Army Reserve (USAR) on 6 November 2006 in support of Operation Iraqi Freedom.  He served as a Judge Advocate General officer in Iraq from 10 March 2007 to 3 January 2008.  On 7 August 2008, he was released from active duty in the rank of captain.

2.  A DA Form 4187 (Personnel Action), dated 10 May 2009, shows he was recommended for award of the CAB for personally being engaged by the enemy.  

3.  On 30 July 2009, the Military Awards Branch, HRC, disapproved a recommendation for the CAB for service performed in support of Operation Iraqi Freedom.  The authority stated:

* under Army Regulation 600-8-22 (Military Awards), paragraph 8-8a, the CAB is awarded "to provide special recognition to Soldiers who personally engaged, or are engaged by the enemy"
* the eyewitness statements submitted in support of his request indicate that 2 enemy rockets impacted 20-50 meters from the building in which the applicant was located during the incident on 13 June 2007
* although there was evidence of enemy action, there is no indication that he could have reasonably been injured by the explosions from his position inside the building; therefore he is not considered to have been personally engaged by the enemy

4.  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.  Award of the CAB is authorized from 18 September 2001 to a date to be determined.  Award for qualifying service in any previous conflict is not authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the facts in his case clearly fit the standard for award of the CAB.  All documentation provided with his application was carefully considered.

2.  He contends the HRC denial memorandum applies the wrong standard for the CAB, that the standard does not appear in the regulation, and that it improperly adds an injury component to the CAB qualification that the Soldier be engaged by the enemy.  However, the governing regulation states the Soldier must be personally present and actively engaging or being engaged by the enemy for award of the CAB.  He is correct that Army Regulation 600-8-22 does not state a requirement that a Soldier face a reasonable possibility of injury in an engagement with the enemy.  But this is a common sense application of the rule.  The CAB exists to recognize Soldiers who engage the enemy but do not qualify, by virtue of their MOS, for a Combat Infantryman Badge.  That award requires engagement in active ground combat. 

4.  HRC's application of the CAB criteria was reasonable.  Every Soldier deployed to Iraq in 2007 could argue they were engaged by the enemy because then rocket and mortar attacks on U.S. locations were common everywhere.  Had the applicant been outside during the rocket attacks, his claim probably would have merit.  However, he was safely inside in a building designed or outfitted in a manner to minimize the risk of any harm from a random rocket attack.
 
5.  The governing regulation states it is not intended to award the CAB to all Soldiers who serve in a combat zone or imminent danger area.

6.  He has not presented any evidence that the decision by HRC was flawed or otherwise unjust, improper, or inequitable.  There is no compelling evidence which warrants 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.



      __________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)                                         AR20100021961



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021961



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1