IN THE CASE OF:	  

		BOARD DATE:	    14 November 2013

		DOCKET NUMBER:  AR20130001073


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 defers his request to counsel.

2.  The applicant makes no additional statement in support of his request.

3.  The applicant provides no additional evidence in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR)) decision regarding the applicant's request for award of the Special Forces (SF) Tab and correction of his record to show he held military occupational specialty (MOS) 18B (SF Weapons Sergeant).

2. In the event the ABCMR denies the applicant's request, counsel requests a personal hearing before the Board to present testimony and additional evidence in support of this petition.

3.  Counsel states the following points in relation to the applicant's request for relief:

   a. The applicant is a decorated combat veteran, with 100 percent (%) service-connected disability, who is seeking to have his official records accurately reflect his combat service so he may be properly vested on the rolls as a full member of the 1st SF Regiment, as a legacy to his family.
   b. He served in Afghanistan, during the early stages of Operation Enduring Freedom (OEF), in an SF weapons sergeant position with an SF operational detachment, for a period exceeding 180 days.

   c. He was awarded the Combat Infantryman Badge (CIB) for his service in Afghanistan.

   d. SF Tab award orders or MOS 18B orders were not published, despite the fact he served in MOS 18B, in a combat environment, for a period of more than 250 days.

   e. There is no evidence he completed an approved Reserve component (RC) SF Qualification Course (SFQC).

   f. Army Regulation 600-8-22 (Military Awards), dated 25 February 1995, is the applicable regulation governing his award of the SF Tab.

   g. Before leaving active duty in 2004, he was informed that orders for his   SF Tab had been requested from the U.S. Army John F. Kennedy Special Warfare Center (USAJFKSWC).

   h. During the interim period (between his release from active duty and the date of his initial application to the Board), Army Regulation 600-8-22 was revised, thereby disqualifying him for award of the SF Tab when considered against the new regulatory criteria. 

4.  Counsel provides:

* a 12-page brief containing new arguments in support of the applicant's request for relief
* a memorandum from the Company Sergeant Major (SGM) of Company A,        1st Battalion, 19th SF Group (Airborne), Washington Army National Guard (WAARNG), dated 14 November 2012

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 ABCMR in Docket Number AR20110022087, dated 14 June 2012.

2.  On 28 March 2003, following previous enlisted service in the U.S. Marine Corps (Active and Reserve components), ARNG, and U.S. Naval Reserve, the applicant enlisted in the WAARNG.  At the time of his enlistment, he was a previous graduate of the USMC Infantry Training School, the U.S. Army Airborne Course, and the U.S. Army Ranger Course.  Accordingly, he was qualified in MOS 11B (Infantryman), with Special Qualification Identifiers (SQI) "P" (Parachutist) and "V" (Ranger Parachutist). 

3.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) and National Guard Bureau (NGB) Form 21 (Annex A – DD Form 4 (Enlistment/Reenlistment Agreement – ARNG)) show he enlisted for a 1-year period in the "Try One in the Guard" program.  

4.  His DD Form 1966 (Record of Military Processing – Armed Forces of the United States) and NGB Form 21 show he contracted for the SF training option program, for qualification in MOSs 18B and 18C (SF Engineer Sergeant).  His DD Form 1966 shows he enlisted into Detachment 4 of Company A, 1st Battalion, 19th SF Group (Airborne), WAARNG.  

5.  Orders 209-01, issued by the WAARNG on 28 July 2003, reassigned him from Detachment 4 of Company A, 1st Battalion, 19th SF Group (Airborne), to Company A, 1st Battalion, 19th SF Group (Airborne).  In both organizations, he was assigned as a Weapons Noncommissioned Officer (NCO), Duty MOS (DMOS) 18B3V, against position number 202D-10 on the organizational manning document. 

6.  Orders 209-100, issued by the WAARNG on 28 July 2003, ordered him to active duty in support of OEF for a period not to exceed 365 days, effective         1 August 2003.

7.  He served in Afghanistan from 9 September 2003 to 6 June 2004.  

8.  Permanent Orders 131-028, issued by Headquarters, Combined/Joint Task Force 180, Bagram Airfield, Afghanistan on 10 May 2004, awarded him the CIB for engaging in active ground combat, effective 15 December 2003.

9.  On 25 July 2004, he was honorably released from active duty.  

   a. Item 11 (Primary Specialty) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates his primary specialty upon his separation was MOS 11B, with SQI "V."  

   b. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not indicate he was awarded the SF Tab, either previously or as a result of his service in OEF.
10.  His DA Form 2166-8 (NCO) Evaluation Report (NCOER)) for the period December 2003 through November 2004 indicates:

a. His primary MOS (PMOS) during the rating period was 11B2V;

b. He was evaluated on his performance of duty in DMOS 18B;

   c. Part IV (Rater) – Values/NCO Responsibilities, sub-paragraph b. (Competence), shows he received an "excellence" rating for his DMOS proficiency during the rating period.  One of his bullet comments shows he "developed and supervised indigenous and detachment weapons training while deployed to Afghanistan." 

   d. Part IV, sub-paragraph d. (Leadership), shows he received an "excellence" rating for his leadership proficiency during the rating period.  One of his bullet comments shows he "served as Special Forces advisor to Embed Training Team for Afghan National Army on numerous patrols."

   e. Part IV, sub-paragraph e. (Training), shows he received an "excellence" rating for his training proficiency during the rating period.  His bullet comments show he:

* developed weapons training for indigenous forces
* supervised small unit tactics training for indigenous forces
* conducted weapons cross training for Dutch Special Forces

11.  Orders 206-022, issued by the WAARNG on 25 July 2005, discharged him from the ARNG effective 27 March 2005.

12.  His Army Military Human Resource Record (AMHRR) is void of any orders indicating he was awarded the SF Tab.  Additionally, his AMHRR is void of any orders, forms, or certificates indicating he completed an approved SFQC, either active or RC.  Lastly, his AMHRR is void of any orders that show he was awarded MOS 18B.

13.  Counsel provides:

   a. A 12-page brief containing new arguments in support of the applicant's request for relief, in which he contends:

		(1)  The Board misstated or misapplied the applicable regulation (Army Regulation 600-8-22), in paragraph 16 of the Record of Proceedings in ABCMR Docket Number AR20110022087, by requiring eligible RC SF Tab awardees to be graduates of an SFQC in addition to (emphasis added) serving more than  120 days with an SF operational detachment in combat.

		(2)  The Board misapplied the policies set forth in Army Regulation       600-8-22, in the Discussion and Conclusions section of the Record of Proceedings in ABCMR Docket Number AR20110022087, by not acknowledging the provisions of paragraph 8-47d, which he interprets to provide for the retroactive award of the SF Tab in cases where a Soldier meets the criteria of paragraph 8-47b, subparagraphs (4), (5), or (emphasis added) (6).  

		(3)  Army Regulation 600-8-22, paragraph 8-47d governs retroactive requests for the SF Tab in the case of veterans (such as the applicant) who were discharged after a period of service.  

		(4)  It is counterintuitive to require formal "basic" SF training in order to be qualified to serve in combat in an SF billet when a Soldier has successfully completed a combat tour as an SF weapons sergeant in an SF operational detachment.  Essentially, this would be the same as requiring a walk-on athlete to try out for the team at the end of the season, after initially earning a starting position and enjoying a winning season in the majors.

		(5)  Paragraph 8-47 reflects this wisdom and articulates different scenarios under subparagraphs (b) and (d).  Paragraph (d) awards the SF Tab based on three eligibility categories of combat service by active duty and Reserve veterans serving in SF units while conducting SF missions during WWII, Pre, and Post 1955 war periods as set forth in Paragraphs (b)(4), (5), or (6).

		(6)  As such, any Soldier, having demonstrated his ability to perform in an SF DMOS during combat, for 120 or more days of consecutive service, and earns the CIB for that service period, is acknowledged as being trained and qualified for the basic SF MOS and awarded the SF Tab without the need of attending an SFQC.  In other words, that Soldier meets the "basic eligibility" requirements in paragraph 8-47b.  It is not lost on the Army that formal schooling does not guarantee success on an SF team during a combat deployment.  Therefore, exceptions to attending the SFQC are sometimes warranted, expected, and specifically authorized by regulation.  This is especially the case during force multiplying periods common during transition periods and build-ups from peacetime to wartime deployment needs.  

		(7)  The applicant's service was subsequent to 1955, and, as a member of the RC, governed by subparagraph b(4).  This eligibility criterion simply has two parts: combat service on an SF team for 120 or more consecutive days, and a CIB or CMB award for that period of service.
		(8)  The Army is bound to follow its own regulations.  Determining a regulation's meaning requires application of the same principles that imbue exercises in statutory construction.  This begins with the language of the statute itself and looks to its plain or ordinary meaning of the words used in the regulation.  If, after employing all the traditional tools of construction, the statute's text seems unambiguous and the ordinary meaning of that unambiguous language yields a reasonable result, the interpretive odyssey is at an end.  If, however, the language admits of a possible ambiguity and Congress has not spoken directly to the issue, the court must look for guidance to any relevant regulations promulgated by an agency charged with administering the statute.

		(9)  Army Regulation 600-8-22 governs SF Tab awards in six defined and different situations.  Each subparagraph and situation is mutually exclusive, not cumulative as applied by the Board in it decision.  In other words, if any one of the subsections is satisfied, the SF Tab award is awarded.  This is completely compatible with the remainder of the regulation as a whole.  Otherwise, paragraph 8-47d would include the conjunctive use of "and" rather than "or" in defining retroactive application for SF Tab awards.

		(10)  Soldiers are only selected for deployment with SF units when they are highly qualified.  The applicant had unique special operations training and experience from other SF type units and schools, including the USMC reconnaissance community.  The applicant was a graduate of the U.S. Army Ranger Course and had been a Reconnaissance Marine by MOS in the USMC.  Additionally, he was a highly qualified military diver trained in tactical and engineering diving operations. 

		(11)  Immediately prior to his activation and to meet shortfalls in SF troops, U.S. Army Special Operations Command (USASOC) sent a memo to all SF Groups acknowledging the shortfall in formally-trained but otherwise 
highly-qualified SF Soldiers, and authorizing assignment of Ranger (Airborne) qualified personnel to SF operational detachments.  A copy of this order has not been located but several SF Group members have informed the applicant that this order authorized his deployment as an SF unit member without attending the SFQC.  This order was in effect for less than a year, has since been recalled, and is no longer in effect as the shortfall has been eliminated with the increased troop levels to wartime equivalents.

		(12)  His assignment to an SF operational detachment in OEF was an exception to meet the shortfalls in a special wartime circumstance based on the needs of the armed forces.

		(13)  He had combat service in an SF operational detachment for more than double the required 120 consecutive days, in the 18B SF position, and received a CIB for this period.  Simply stated, his combat service in Afghanistan satisfies the basic eligibility requirements for SF qualification articulated under Army Regulation 600-8-22, paragraph 8-47b(4).

		(14)  At all times since his discharge, he anticipated the award of the SF Tab from his unit, as the required paperwork from 19th Special Forces Group (Airborne) had been submitted to USAJFKSWC and he was awaiting award authorization.  Upon learning that the paperwork was misplaced, lost, or set aside, he filed this application.  It is an injustice to deny him an award of an SF Tab and MOS 18B.  He has more than met the minimum requirements of "basic eligibility" and proven his proficiency during combat operations as an SF weapons sergeant as a member of an SF operational detachment in Afghanistan during OEF.

		(15)  His request demonstrates an error in the application of the relevant DA regulations and an injustice in denying him his award of the SF Tab.  Through no fault of his own, his unit's request for orders awarding him MOS 18B and the SF Tab were lost or misplaced during the initial phases of OEF and this nation's War on Terror.  Without question, he stepped up when our armed services were lacking SF Soldiers and demonstrated his professionalism, expertise, and exemplary character as a member of an SF unit on the very tip of the spear.  

		(16)  It is only fitting that this SF Tab be awarded.  Without this holding and award, he is omitted from the rolls of the 1st SF Regiment, despite the fact that he served honorably in an 18B position in combat in an SF operational detachment during our nation's weakest moments, and was decorated for his SF service.  

		(17)  This omission effectively erases his history of combat service with the 1st SF Regiment, the official registry and historical caretaker for Special Forces – service which included numerous SF missions in Afghanistan at the edge of the world for more than double the required consecutive days of combat service required under Army Regulation 600-8-22, paragraph 8-47.

   b. A memorandum from the Company SGM of Company A, 1st Battalion, 19th SF Group (Airborne), WAARNG, dated 14 November 2012.  In this memorandum, the Company SGM states he submitted a request for the applicant's award of MOS 18B and the SF Tab, based on his service with an SF operational detachment over a period of more than 120 days in combat.  He states he didn't follow up on the request after it was submitted.

14.  According to the U.S. Army Special Forces Command (Airborne) website:

   a. The mission of the SF Command is to organize, equip, train, and validate forces to conduct full spectrum special operations in support of U.S. Special Operations Command (USSOCOM), Geographic Combatant Commanders, American ambassadors, and other governmental agencies.

   b. SF Soldiers deploy and execute nine doctrinal missions: unconventional warfare, foreign internal defense, direct action, counter-insurgency, special reconnaissance, counter terrorism, information operations, counter proliferation of weapons of mass destruction, and security force assistance.

   c. There are five active component SF Groups and two U.S. Army National Guard Groups.  Each SFG is regionally oriented to support one of the war-fighting geographic combatant commanders. 

   d. The cornerstone of the SF Group’s capability is the Operational Detachment-Alpha (ODA), a highly-trained team of 12 SF Soldiers.  Cross-trained in weapons, communications, intelligence, medicine, and engineering, the ODA member also possesses specialized language and cultural training.

   e. The ODA is capable of conducting the full spectrum of special operations, from building indigenous security forces to identifying and targeting threats to U.S. national interests.

   f. The U.S. military’s premier unconventional warriors, the SF provide a viable military option for operational requirements that may be inappropriate or infeasible for large conventional forces.

15.  Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual military awards.  Paragraph      8-47 of the version in effect at the time provided guidance on the SF Tab. 

a. The Commander, USAJFKSWC is the award approving authority. 

   b. The SF Tab may be awarded to any person in the active Army or an active Reserve status who meets the appropriate criteria listed below:  

		(1)  Successful completion of the SFQC or the SF Officer Course. 
	
		(2)  Active Army personnel.  Successful completion of the resident SFQC, the SF Officer Course, or the then-approved program of instruction for SF qualification in SF training groups, and who were subsequently awarded, by competent authority, SQI "S" (Special Operations Support Personnel), SQI "3" (for officer personnel), or an MOS in either Career Management Field (CMF) 18 or Functional Area (FA) 18. 

		(3)  Reserve Component Soldiers in an active Reserve status.  Successful completion of the resident SFQC, the RC SFQC, or a program of instruction approved by the U.S. Training and Doctrine Command (TRADOC).  In addition, Reserve component personnel must have been awarded, by competent authority, SQI "S" or "3" in MOSs 11B, 11C, 12B, 05B, or 91B, or ASI "5G" or "3" or an MOS in CMF 18 or FA 18 before becoming eligible for award of the SF Tab.
 
		(4)  Subsequent to 1955.  RC personnel must have successfully served for 120 consecutive days, or more, as a company grade officer or enlisted member of an SF Operational Detachment (A-Team), Mobile Strike Force, SF Reconnaissance Team or SF Special Project Unit, and must have been awarded the CIB or CMB for such service.

		(5)  Prior to 1955.  RC personnel must have served for 120 consecutive days or more, as an officer or enlisted member of the 1st Special Service Force between August 1942 and December 1944, OSS Detachment 101 between April 1942 and September 1945, OSS Jedburg Detachments between May 1944 and December 1945, OSS Operational Groups between May 1944 and December 1945, the 6th Army Special Reconnaissance Unit (also known as the Alamo Scouts) between February 1944 and December 1945, or 8240th Army Unit between June 1950 and July 1953.

		(6)  Former wartime service.  The SF Tab may be awarded retroactively to those personnel who served with SF units during wartime and were either unable to or not required to, attend a formal program of instruction, but were awarded SQIs "S," "3," or [ASI] "5G" by competent authority. 

   c. Application for award of the SF Tab under the provisions above will contain detailed information, accompanied by substantiating documentation to justify the claim. 

   d. Those personnel who retired or were honorably discharged from the Active Army must provide documentary evidence of qualification per paragraphs b (4), (5), or (6) above. 

   e. Previous award of SQI ''S," or ASI "5G," as a result of a non-standard training program does not constitute qualification for award of the SF Tab.  Non-standard training is defined as any method of SF qualification not outlined in current or past editions of Army Regulation 611-101 (Commissioned Officer Specialty Classification System), Army Regulation 611-112 (Manual of Warrant Officer MOSs), Army Regulation 611-201 (Enlisted CMFs and MOSs), and any Training and Doctrine Command regulations.

16.  Army Regulation 611-201, dated 26 June 1995, prescribes the enlisted MOS classification structure of the United States Army.  Chapter 5 of this regulation governs the awarding of SQIs.  Table 5-1 states that to qualify for award of SQI "S," enlisted Soldiers:

* must be Airborne qualified 
* must successfully complete OJT/OJE and serve 24 months in their primary MOS with an SF unit (may be waived up to 12 months), or successfully participate in at least two unit exercises (these exercises may be a result of unit training or actual mission requirements)
* or, must successfully complete SF Assessment and Selection (SFAS) and the SFQC (Soldiers completing both SFAS and SFQC will be awarded the SQI and the SF Tab)

17.  DA Pamphlet (PAM) 611-21 (Military Occupational Classification and Structure), dated 31 March 1999, gives procedures and prescribes the method of developing, changing, and controlling officer, warrant officer, and enlisted military occupational classification structure.  

   a. Chapter 9 covers the enlisted classification system and provides procedural guidance for the classification of enlisted personnel and positions.  

   b. Chapter 10 covers the career progression charts for CMFs and MOS specifications.  

   c. Paragraph 10-67 (18B – SF Weapons Sergeant) provides that for initial award of MOS 18B, eligible Soldiers must have completed a formal SFQC.

18.  Army Regulation 15-185 (ABCMR) states the ABCMR may, in its discretion, hold a hearing.  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 applicant, through counsel, requests reconsideration of his previous request for award of the SF Tab and MOS 18B. 

2.  Counsel makes numerous contentions regarding the Board's findings in the original case; essentially, he contends the Board incorrectly applied the applicable Army Regulation against the case facts.  Counsel's contentions are noted.

3.  The evidence of record shows:

* the applicant enlisted into an SF unit, for the purpose of service in an SF organization
* the applicant was unable to attend an SFQC because his unit deployed
* the applicant was deployed in combat for nearly a year with his SF unit
* the applicant performed admirably in combat, earning the CIB and "excellence" ratings on his NCOER
* the applicant performed the same duties in support of the unit's organic mission as those performed by trained SF Soldiers
* the applicant was not hindered in his ability to execute the unit mission by his lack of formal training

4.  The SF Tab award guidance contained in the 1995 version of Army Regulation 600-8-22 is ambiguous.  Specifically, it does not definitively state whether or not an RC Soldier, with combat experience exceeding 120 days, must also be a graduate of an SFQC (i.e., no conjunction is mentioned, neither an “and” nor an “or”).  In the original case, the Board concluded the applicant did not meet the criteria for award of the SF Tab because he was not a graduate of an SFQC, despite his record of combat service with an SF operational detachment exceeding 120 days.   

5.  Notwithstanding the conclusions rendered by the Board in the original case, a second review of the applicable regulatory guidance supports an alternate conclusion.  Specifically, paragraph 8-47b(4) provides that RC Soldiers may be awarded an SF Tab if they successfully serve more than 120 days as a member of an SF operational detachment, which the applicant did.  The regulation in effect at the time does not specifically require that the applicant meet both criteria found in sub-paragraphs (3) and (4); therefore, since he met the criteria of at least one of the sub-paragraphs, it appears he has met the eligibility criteria and should be awarded the SF Tab.

6.  The applicant requests his military records be corrected to show MOS 18B.  Although the available evidence shows his duty MOS was 18B during OEF there are no orders which show he was awarded MOS 18B.  Additionally, by regulation, formal training is required for award of MOS 18B, which the applicant did not receive.  Consequently, there is an insufficient basis to grant this portion of the requested relief.    
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  

2.  With respect to the applicant's request for reconsideration, the Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20110022087, dated 14 June 2012.    As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the SF Tab effective         6 June 2004 and amending his DD Form 214 to add the SF Tab.

3.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding the applicant MOS 18B, or to correcting his record to show he held MOS 18B.





      __________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)                                         AR20110022087



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ABCMR Record of Proceedings (cont)                                         AR20130001073



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