IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110016205 


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 reconsideration of the Board's denial of his previous request for award of the Combat Action Badge (CAB).  He also requests that he be allowed the opportunity to discuss the matter telephonically or have counsel present during deliberations.  

2.  He states he fundamentally disagrees with the Board’s decision.  He states the Army has given commanders wide latitude in determining the merits of the award and many Soldiers have received the badge for simply being within 300-400 meters of an incident which is counter to the stated denial by the Board.  He adds that while he cannot compare his situation to others, he can state unequivocally that his Operation Iraqi Freedom (OIF) I commander supports this request wholeheartedly.  He states that All Army Activities (ALARACT) Message 193/2010 specifically discusses the management of concussions.  He states the context in which it is relevant to his case is its discussion of mandatory medical evaluations of all personnel after blast incidents.  Specifically paragraph 4 states, in part, that events requiring mandatory command evaluations and reporting of exposure of all involved personnel include, but are not limited to:

	a.  any service member in a vehicle associated with a blast event, collision, or rollover; and

	b.  any service member within 50 meters of a blast (inside or outside).

3.  He provides a copy of ALARACT 193/2010.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000521, on 27 July 2010.

2.  The discussion related to management of concussions is a new argument which warrants that the Board reconsider his request.

3.  On 2 May 2005, the Chief of Staff of the Army approved the creation of the CAB to provide special recognition to Soldiers who personally engaged, or are engaged by the enemy.

4.  On 9 January 2007, a brigadier general recommended the applicant for the CAB.  Included in that recommendation were statements from the applicant and a captain.  In those statements the applicant and the captain said that four 107mm rockets and mortars were fired at their position.  The mortar fire landed southwest of their building and the rockets landed on or near their building.  The rocket which hit their building struck the building approximately 10 to 30 meters from the applicant's location.

5.  In an undated and unsigned DA Form 4187 (Personnel Action), a request was made to award the applicant the CAB.

6.  On 23 April 2007, the brigadier general's recommendation to award the applicant the CAB was disapproved by the Human Resources Command, Alexandria, VA (HRC-A).

7.  On 24 October 2007, HRC-A again disapproved the applicant's request for the CAB.  HRC stated that a mortar round impacted the floor above and a room over from where the applicant was located.  Although there was evidence of enemy action, there was no indication that the applicant could have reasonably been injured by the attack.  As such, the incident did not meet the intent of the CAB.

8.  On 15 August 2009, the applicant again submitted a request for the CAB.  The disposition of that request is not a matter of record.

9.  Army Regulation 600-8-22 (Military Awards) states the CAB is authorized from 18 September 2001 to a date to be determined.  The requirements for award of the CAB are branch and military occupational specialty 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.

10.  ALARACT 193/2010 prescribed that all Army commanders, leaders and Soldiers will aggressively implement Department of Defense guidance for management of concussion in the deployed setting in order to protect and sustain the force and the health of the individual Soldier.  Paragraph 4 of this message states that any event where any service member in a vehicle associated with a blast event, collision, or rollover or any service member within 50 meters of a blast (inside or outside) are events requiring mandatory command evaluation and reporting of exposure.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It states the Director, ABCMR, will manage the ABCMR day-to-day operations.  The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The CAB provides special recognition to Soldiers personally present and actively engaging or being engaged by the enemy.  While he has not provided evidence to support his contention that other Soldiers received the CAB for simply being within 300-400 meters of an explosion it is reasonable to believe other factors were involved in such cases indicating active engagement with the enemy or similar circumstances.  Although there was evidence of enemy action, this incident does not meet the intent of the badge.

2.  The contentions made by the applicant regarding ALARACT 193/210 have been noted.  However, that message is intended to assist leaders and Soldiers in the management of concussions as a health issue and may error on the side of caution for that reason.  In this case, the grounds of the applicant's compound sustained enemy fire and the building he was in was hit by rocket fire 20 meters away, and one level up, from his location.  A wall and floor separated the artillery round from the applicant.  The fact that the risk of personal injury was present due to the possibility of additional rockets or other enemy fire does not meet the intent of the CAB since such a possibility is routinely present in a combat zone or imminent danger area.

3.  With respect to his request for an opportunity discuss the matter telephonically or to have counsel present, his request was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a telephonic discussion or personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

4.  In view of the foregoing, there is insufficient basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100000521, dated 27 July 2010.



      _______ _   __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)                                         AR20110016205



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ABCMR Record of Proceedings (cont)                                         AR20110016205



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