IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110018091 


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).

2.  The applicant states he was serving as an infantry officer when his unit came under attack and he engaged the enemy.  He goes on to state he submitted the two enlisted Soldiers with him for award of the CIB and they were awarded the CIB for the action that occurred on 11 November 2007; however, when he submitted his own request for the award of the CIB, it was denied.

3.  The applicant provides:

* A two-page letter explaining his application
* A sworn statement from the battalion S-3 officer
* Sworn statements from the applicant and one member of his gun truck
* A copy of the unit’s SOP
* A copy of orders awarding one member of the applicant’s gun truck the CIB
* A copy of his mobilization orders
* A copy of a memorandum dated 24 February 2008 recommending the applicant and others for the CIB for the 11 November 2007 convoy
* A copy of the applicant’s request for award of the CIB
* A copy of a convoy log
* A copy of an improvised explosive device (IED) accident report
* A copy of an incident update


* A copy of orders changing the applicant’s branch to infantry effective
14 March 2007
* A copy of his DA Form 2-1 (Personnel Qualification Record)
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 18 July 2008
* A copy of an email to the applicant from the office of the inspector general
* A copy of the denial of his CIB by the Human Resources Command (HRC), Fort Knox, KY

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 initially enlisted in the Regular Army on 24 May 1988.  He completed his training as a light weapons infantryman and he served until he was honorably discharged at Fort Riley, KS on 6 September 1989.

3.  On 17 November 2001, he enlisted with a waiver in the California Army National Guard (CAARNG) for a period of 6 years and he served until he was honorably discharged in the rank/grade of staff sergeant (SSG)/E-6 on 22 August 2003.

4.  On 23 August 2003, he accepted a U.S. Army Reserve (USAR) appointment as a field artillery second lieutenant.  On the same day he accepted an appointment in the CAARNG as a field artillery second lieutenant.

5.  He was ordered to active duty on 14 February 2005 in support of Guantanamo Bay operations and he was promoted to the rank of first lieutenant (1LT) on 23 August 2005.  He was honorably released from active duty (REFRAD) on 3 July 2006. 


6.  On 16 March 2007, he was ordered to active duty in support of Operation Iraqi Freedom.  His branch was changed to Infantry on 19 March 2007 and he deployed to Kuwait/Iraq on 1 June 2007.  He was assigned to Company B,
1st Battalion, 160th Infantry Regiment for duty as the executive officer.

7.  On 11 November 2007, the applicant was in charge of security for a 
48-vehicle convoy consisting of three to four gun trucks and nine to twelve combat Soldiers.  At approximately 2330 hours, an IED explosion occurred somewhere to the front of the applicant and his vehicle.  Being with the third gun truck in the convoy and closest to the blast, he proceeded to the blast site and assumed a defensive posture.  The blast site was approximately 2 feet deep and the size of an HMMWV tire in the road.  One of the members of the applicant’s crew reported that he thought he saw personnel with weapons on a roof top near a water tower and the applicant and one of the crew members fired an illumination grenade which caused the enemy to withdraw back into the buildings, allowing the convoy to proceed.  Later that night he was told there were tracers going over his head; however, he did not see them.  He immediately reported the incident upon his return and submitted his members for award of the CIB.

8.  The memorandum from HRC is undated but indicates the applicant’s request for award of the CIB was denied because there was no evidence to show the applicant’s unit engaged the enemy in active ground combat.

9.  He was promoted to captain (CPT) on 29 January 2008 and he became the commander of his unit.  He was honorably REFRAD on 18 July 2008 due to completion of required service.

10.  On 24 November 2008 he was ordered to active duty as a field artillery CPT and he served until he was REFRAD on 23 November 2010.  He was awarded the Combat Action Badge (CAB) on 4 May 2011.

11.  Army Regulation 600-8-22 (Military Awards), as amended by Military Personnel Message 08-190, states the CIB 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.

12.  Army Regulation 600-8-22 also states that improvised explosive devices (IEDs), vehicle-borne IEDs (VBIEDS), and the like are direct fire weapons.  While no fixed, qualifying distance from an explosion of these devices can be established, commanders should consider the entirety of the combat situation when considering award of the CIB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the CIB for his actions during a convoy in Iraq on 11 November 2007 has been noted and appears to lack merit.

2.  Based on the evidence submitted with his application, there does not appear to be sufficient evidence to show that the actions that occurred during the incident warranted the award of the CIB to any member of the convoy.

3.  While the applicant claims he fired an illumination grenade to light up the area and make an identification of personnel suspected to be in the area, such actions are not considered to be engaging the enemy and does not meet the intent of the award of the CIB.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110018091



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ABCMR Record of Proceedings (cont)                                         AR20110018091



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