IN THE CASE OF:	  

		BOARD DATE:	 28 June 2011

		DOCKET NUMBER:  AR20100029338 


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 (CIB) and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the badge.

2.  The applicant states, in effect, that he thinks the Military Awards Branch of the U.S. Army Human Resources Command (HRC) made an error by not awarding him the CIB for failing to meet the criteria, because his convoy did not close with and destroy the enemy.  He contends small arms fire was exchanged between their non-armored element (Ford pick-up trucks) and the enemy, resulting in award of the Purple Heart to one of his Soldiers.

3.  He further contends his actions as convoy commander were appropriate in accordance with Field Manual (FM) 3-21.10 (The Infantry Rifle Company).  His job was to clear the kill zone and break contact once the kill zone was cleared.  The intent to destroy the enemy with direct fire was achieved, but was not documented since the convoy continued to move.  He attests that when Soldiers are attacked by mortar or rocket fire in a Forward Operating Base, you cannot close with or destroy anyone until you know where the round came from and/or a crater analysis is completed.

4.  He further attests that literally thousands of CIBs and Combat Action Badges (CABs) have been awarded to Soldiers for indirect attacks, and in many cases you never get the chance to "close with and destroy the enemy with direct fires" because you don't know where the attack came from.  In his case, they were in a night ambush by direct fire while traveling in a convoy.

5.  He provides:

* Four non-sequential pages extracted from FM 3-21.10
* Six pages extracted from Army Regulation 600-8-22 (Military Awards) pertaining to the eligibility criteria for award of the CIB
* Citation and certificate for the Bronze Star Medal
* Email correspondence exchanged between himself and staff members of the National Guard Bureau
* His CIB Recommendation Packet consisting of:

* DA Form 4187 (Personnel Action)
* Mobilization orders
* Deployment orders
* Battalion commander's Memorandum for Record
* Three DA Forms 2823 (Sworn Statement)
* DA Form 2-1 (Personnel Qualification Record - II)
* DD Form 214

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 records show he is currently serving in the Active Guard Reserve (AGR) Program as an infantry branch lieutenant colonel in the Florida Army National Guard (FLARNG) as the G3-State Training Officer. 

3.  On 1 April 2005, he was ordered to active duty as a member of his ARNG unit, in support of Operation Enduring Freedom (OEF).  He subsequently served in Afghanistan from 16 June 2005 to 7 November 2005.  His DA Form 67-9 (Officer Evaluation Report) rendered for this period shows he was assigned as the Executive Officer (XO) of 2nd Brigade Embedded Training Team, Regional Command Assistance Group - Kandahar (RCAG-K), based in Qalat, Afghanistan.
As the XO he was responsible for all aspects of teaching, coaching, and mentoring the Afghan National Army brigade staff in both training and combat operations.

4.  He provides a memorandum rendered by the commander of 2nd Brigade Embedded Training Team, RCAG-K, based in Qalat, Afghanistan on                 29 September 2005, Subject:  Memorandum for Record [applicant's name] Qualifying Action for award of CIB.  The commander provided the following synopsis:

"On 3 September 2005 a convoy of three LTV [light tactical vehicles] vehicles was reroute [sic] on Route 1 from Kandahar Airfield, Afghanistan to Qalat Fortress, Afghanistan.  The lead and last vehicles were separated by approximately 100 meters.  Order of march of the convoy was as follows:

	a.  [vehicle 1, applicant and Sergeant (SGT) HW]
	b.  [vehicle 2, Captain (CPT) KB and an interpreter]
	c.  [vehicle 3, Master Sergeant (MSG) BF and SGT RH]

At about 1935(L) hours, during hours of darkness, approximately 1.5 km north of Jaldak (vic grid:  TA 85254040) Anti-Coalition Militia forces attacked the convoy with small arms fire.  [The applicant] and SGT HW in [vehicle 1] heard shots being fired but could not identify the source.  [Vehicle 1] continued traveling north on Route 1.  Almost simultaneously [vehicle 3], the last vehicle in the convoy, also came under fire with approximately 8 to 10 AK47 rounds fired at the vehicle.  MSG BF contacted [the applicant] to report that
[vehicle 3] was under fire and SGT RH returned fire with his M4 Rifle, firing 3 rounds.  Two more 5 round bursts were fired at the convoy and SGT RH was wounded in his right hand.  The convoy continued to march towards Qalat Fortress and made a Troops in Contact (TIC) report to [their higher headquarters].

Upon arrival at Qalat Fortress SGT RH's wound was treated by [a medic].  [The medic] determined that no further treatment would be necessary.

It is my judgment that this action qualifies [the applicant] for award of the Combat Infantryman Badges and appropriate recommendation will be forwarded through channels."

5.  The applicant provides a citation and certificate which show he was awarded the Bronze Star Medal for exceptionally meritorious service while deployed in support of Operation OEF during the period 22 June 2005 to 4 November 2005.  

In part, it states he "displayed unparalleled skill, courage under fire, and leadership as a teacher, coach and mentor."

6.  He was honorably released from active duty to the control of his ARNG unit on 16 February 2006.

7.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the CIB.

8.  On 27 September 2007, his regimental commander forwarded a packet through brigade headquarters to the Department of Military Affairs recommending the applicant for award of the CIB based upon the aforementioned incident.  This packet contained three DA Forms 2823 rendered by the applicant, MSG BF, and SGT RH wherein each of them recounted the events of the ambush on 3 September 2005.  The sworn statements are consistent with the events in the commander's aforementioned letter and corroborate the facts that a three-vehicle convoy was transporting a load of supplies from Kandahar to Qalat.  In his sworn statement, the applicant stated:

"Around 1933(L) we traveled through the town of Jaldak and passed a suspicious group of armed men hanging out at one of the canal bridges.  We all discussed the group on our iCom Radios as we continued toward the northern end of the town.  At 1935(L) we were about 1.5 km north of town when I heard the high pitch "crack" of 5 rounds being fired a few meters over the cab of the truck.  I stepped on the accelerator and simultaneously reached for my iCom Radio just as MSG BF called to say we were taking fire.  I called back to the other trucks in the convoy and said let's get out of the kill zone!  I asked SGT HW if he could see where we were taking fire from, and he replied no.  I would have been unable to return fire on the right side of the truck, due to the fact that I was driving and talking on the radio in control of the convoy, besides we would not blindly return fire without first seeing where we were taking fire from.  SGT RH could see from the rear vehicle where the fire was originating from and did return fire.  Two more 5 round bursts were fired at us, and SGT RH was hit in the right hand.  Approximately 3.5 kilometers north of Jaldak, I (slowed the convoy down just over the next hill, but would not stop), called the other trucks and got a status of all members and equipment and counted the headlights behind me.  I established that SGT RH was stable, that no one else had been injured and we continued on to Qalat, where upon arrival SGT RH was treated and we reported the Troops in Contact (TIC) report to RCAG-K at Kandahar Airfield."

9.  On 19 December 2007, the Chief of the Military Awards Branch of HRC informed the Adjutant General, State of Florida Department of Military Affairs, FLARNG, that the request for award of the CIB to the applicant was disapproved.
The Chief of the Military Awards Branch noted that Army Regulation 600-8-22, paragraph 8-6b(5)(a) provides that in order to be eligible for award of the CIB:

"On or after 18 September 2001, a Soldier must be an Army infantry or special forces [officer]...in the grade of colonel or below, or an Army enlisted Soldier or warrant officer with an infantry or special forces MOS [military occupational specialty], who has 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 fires."

10.  The Chief of the Military Awards Branch noted that the eyewitness statements provided with his recommendation indicated that while on a supply convoy the element came under small arms fire.  Although a Soldier returned fire, the unit did not engage in active ground combat to close with and destroy the enemy with direct fires.  Therefore, it was concluded the applicant does not meet the criteria for award of the CIB.

11.  The applicant provides five pages of email correspondence exchanged between himself and a staff member of the NGB during the period 17 to 21 October 2008 wherein he questioned the disapproval of his CIB recommendation and he was advised to seek relief from this Board.

12.  He provides four non-sequential pages extracted from FM 3-21.10 which show, in part:

* The purpose of tactical movement is to position units on the battlefield and prepare them for contact
* Maneuver is defined as "Movement supported by fire to gain a position of advantage over the enemy, while in contact"
* Tactical movement is movement in preparation for contact
* Infantry companies may be utilized to provide security and close-in protection from direct fire for convoys while on the move
* The infantry company commander may serve either as the convoy security commander or as overall convoy commander
* Convoy commander responsibilities include:  preparing an Operations Order, employment of organic combat elements, combat support elements, and vehicle drivers

13.  Army Regulation 600-8-22 (Military Awards), as amended by Military Personnel Message 08-190, states the Combat Infantryman Badge may be awarded to an infantryman satisfactorily performing infantry duties, assigned to an infantry unit during such time as the unit is engaged in active ground combat, and actively participating in such ground combat.  Specific requirements state, in effect, that an Army Soldier must have an infantry or special forces specialty/military occupational specialty and must have 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.  A Soldier 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 with the enemy, to close with and destroy the enemy with direct fires.

14.  Army Regulation 600-8-22 also provides the following special provision authorized for the War on Terrorism.  The CIB may be awarded to recognize those U.S. Army Infantry and Special Forces Soldiers embedded in formed Afghan National Army or Iraqi infantry/special force units, or Iraqi specialized Infantry type units, of brigade, regimental or smaller size, or assigned as advisors to a foreign infantry/special forces comparable to the above infantry units, as tactical advisors, trainers or performing liaison duties, during the time that the supported infantry/special force unit engages in active ground combat, to close with and destroy the enemy with direct fires.  Qualified Soldiers must have been personally present and participated in the combat operations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the CIB.

2.  The applicant's status as an infantry officer and his assignment to an infantry unit embedded in an Afghan National Army infantry unit during his service in Afghanistan are not in question.  

3.  There is no evidence in the available records and he did not submit sufficient evidence that shows he was personally present and participated in combat operations during the time that the supported infantry unit engaged in active ground combat, to close with and destroy the enemy with direct fires.  In fact, although evidence shows he was in a supply convoy which came under fire from an enemy force, it also shows he elected to rapidly depart the area rather than engage the enemy in direct combat.  

4.  Notwithstanding his sincerity regarding his entitlement to this badge, in the absence of evidence that he actively participated in active ground combat to close with and destroy the enemy with direct fires, there is insufficient evidence upon which to base award of the CIB in this case.

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)                                         AR20100029338





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ABCMR Record of Proceedings (cont)                                         AR20100029338



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