IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013


		DOCKET NUMBER:  AR20120020577 


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) in lieu of the Combat Action Badge (CAB).

2.  The applicant states:

* he is eligible for the CIB per paragraph 8-6 of Army Regulation 600-8-22 (Military Awards)
* his primary military occupational specialty (PMOS) was 11B (infantryman) while he was attached to the mortar platoon and he engaged in ground combat in Iraq
* CIBs were awarded to other mortar platoon Soldiers

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 January 2006
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 29 March 2012
* DA Form 2823 (Sworn Statement)
* CAB orders
* Excerpts from Army Regulation 600-8-22 




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 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 was ordered to active duty from the Army National Guard on 
15 August 2004 in support of Operation Iraqi Freedom.  His PMOS was 11B and his secondary MOS was 19D (cavalry scout).  He served in Kuwait/Iraq from 
6 January 2005 to 5 December 2005.  

3.  Orders, dated 14 December 2005, show he received the CAB for actively engaging or being engaged by the enemy on 12 July 2005 in Iraq.  These orders show he was assigned to Headquarters and Headquarters Company, 112th Armor Battalion, 2nd Brigade, 56th Brigade Combat Team.

4.  On 7 January 2006, he was released from active duty.

5.  His DD Form 214 does not show the CIB as an authorized award.

6.  There are no orders for the CIB in the available records.

7.  He provides a sworn statement, dated 27 August 2005, wherein he states:

	a.  on 6 August 2005, one of his Scout 2 elements was attached to the mortar platoon while conducting a patrol in Iraq.  Part of their patrol included clearing the road.  A young man approached their team to advise them of a potential improvised explosive device (IED).  

	b.  the IED was detonated and his patrol was attacked.  All personnel were either covered down behind or inside of their vehicles and did not sustain any injuries from the blast.  



8.  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.  

9.  Army Regulation 600-8-22 also states that IEDs, vehicle-borne IEDs, 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.  

10.  Army Regulation 600-8-22 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.  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 CIB or the Combat Medical Badge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant received the CAB for actively engaging or being engaged by the enemy on 12 July 2005 in Iraq.

2.  The governing regulation for award of the CIB states:  

	a.  an Army Soldier must have an infantry or special forces specialty/MOS 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.  

3.  Evidence shows he held an infantry MOS.  However, there is no evidence which shows he was assigned to an infantry unit during such time as the unit was engaged in active ground combat, and actively participating in such ground combat in Iraq.  Therefore, there is insufficient evidence on 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)                                         AR20120020577





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ABCMR Record of Proceedings (cont)                                         AR20120020577



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