IN THE CASE OF:	  

		BOARD DATE:	    18 July 2013

		DOCKET NUMBER:  AR20130010541 


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, in effect, reversal of the U.S. Army Human Resources Command's (HRC) decision denying him award of the Combat Infantryman Badge (CIB) and a personal appearance before the Army Board for Correction of Military Records (ABCMR).

2.  The applicant states:

	a.  HRC's disapproval memorandum states the award was disapproved because the enemy contact was indirect fires.  However, the mortar systems used to engage his platoon were used as direct fire weapons system in hand held mode with no closeness.  He knows of many infantrymen who were awarded the CIB from indirect fire while not performing infantry duties on a Forward Operating Base.

	b.  He would like a chance to plead his case on why he feels he should be awarded the CIB as supported by his former chain of command.  He feels this award has many grey areas.  He has seen many Soldiers awarded this award while not performing any infantry duties.  When he pursued receipt of this award he was held to a different standard even though he actually was in hostile fire while leading men in combat.

3.  The applicant provides:

* Officer Record Brief (ORB)
* two DA Forms 2823 (Sworn Statements)
* three recommendation memoranda for award of CIB
* narrative for enemy contact while performing infantry duties
* HRC denial memorandum

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel remains silent and defers requests and statements to the applicant and provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  With prior Army National Guard enlisted service, on 8 December 2005, the applicant was appointed as a commissioned officer in the U.S. Army Reserve, Infantry Branch.  He was ordered to active duty and he entered active service on 7 January 2006.  He held an infantry area of concentration.

2.  On 5 January 2012, he was deployed in support of Operation Enduring Freedom (OEF).

3.  He provides:

	a.  A DA Form 2823, dated 28 September 2012, wherein the platoon sergeant, Master Sergeant (MSG) McK-----, for the 504th Parachute Infantry Regiment (PIR) stated:

		(1)  The applicant was conducting a combat patrol in and around the village of Al Fadliyah, Iraq on 6 June 2008.  The applicant dismounted the vehicles with a 9-man squad, led by Staff Sergeant (SSG) McC-----; a 2-man machine gun team; and the platoon forward observer, SGT Y---.  He stayed with the vehicles to maintain communication with the battalion and perform coordination with the mounted and dismounted elements of the patrol.

		(2)  At about 2145, the applicant moved the dismount unit into the woodline northwest of the village and radioed that he was setting up in an over watch position of the village.  At approximately 2245, the applicant's elements received about six mortar rounds within 75-100 meters of their position.  He heard the rounds impact, but could not determine from which direction they came.  He immediately sent a contact to the battalion and requested intelligence, surveillance, reconnaissance, and combat aviation.

		(3)  He contacted the applicant and informed him of the situation and asked for an update.  The applicant informed him that all Soldiers and 
equipments were accounted for and they had not received any further contact.  The applicant then explained that he was going to conduct a wide flanking maneuver in search of the enemy mortar crew and/or observers.  He continued to relay information to the applicant and received 15 minute updates from him.

		(4)  At approximately 2345, while moving west on the canal road, but east of the mounted element, the applicant heard a dirt bike coming down the trail and moved the patrol off the trail.  The applicant and SSG McC----- stopped the bike and suspected the two fighting age males on it were the enemy observers.   After conducting a search of the personnel and conducting tactical questioning, the applicant determined that there was not enough evidence to detain the individuals.  On 7 June 2008, at about 0030, he was radioed by the company commander to extract the dismounted element and return to base.  The applicant gathered his element and moved tactically to the vehicle staging area on the canal road.  They remounted the vehicles and returned to base arriving at about 0100.

	b.  A narrative for enemy contact while performing infantry duties, dated 2 October 2012, wherein the applicant states:

		(1)  On or about 6 June 2008, the 504th PIR was conducting a counter indirect fire patrol.  They arrived at the designated release point around 2130 and dismounted the element.  Around 0245 they heard six mortar rounds being fired not more than 500 meters away from their location.  A few seconds later two mortar rounds landed about 20-30 meters from up-armored trucks and the other four landed 75-100 meters away from the dismounted element in the palm grove.

		(2)  Once the rounds were complete the dismounted element began bounding to the location of the mortar team.  They questioned two men about the mortar attack.  At approximately 0030 they regrouped and returned to base to be debriefed.

	c.  An unsigned memorandum, dated 2 October 2012, wherein the battalion commander for the 504th PIR recommended approval of the award of the CIB to the applicant based on the applicant being engaged with enemy fire while conducting his infantry duties as a platoon leader on or around 6 June 2008.

	d.  A DA Form 2823, dated 16 October 2012, wherein the company commander for the 504th PIR stated:

		(1)  The applicant was tasked to conduct an area denial patrol (movement to contact) on 6 June 2008.  The mounted element of the patrol radioed updates 

regarding the position of the dismounted portion of the patrol led by the applicant. At 2245, he learned the dismounted patrol had received six mortar rounds, impacting 75-100 meters from the applicant's dismounted position.

		(2)  After the dismounted patrol broke contact from the impact of the mortars, the applicant accounted for personnel and equipment and maneuvered the dismounted element trying to find the observers and the mortar crew.  At 2345, the dismounted patrol stopped a motorcycle and questioned two individuals.  The applicant determined that the two men on the motorcycle were likely involved with the mortar attack, but he did not have enough evidence to detain them.  After discussing the contact with the battalion commander, they decided there was no further reason to keep the patrol in the area because the brigade was going to pull back to its original mission.  At 0030, 7 June 2008, he radioed SFC McK----- to have the patrol return to Tallil Air Base.  The patrol retuned by 0100 without further incident.

	e.  A Memorandum for Record, dated 8 November 2012, wherein the former battalion commander for the 504th PIR certified the applicant had engaged in enemy contact while deployed in Iraq on 6 June 2008.  According to reports received the applicant was engaged by what he thought were indirect mortars, less than 500 meters away.  The applicant and his platoon reacted to incoming rounds by taking cover and maneuvering over the terrain, taking necessary precautions to avoid casualties.  The mortar rounds started to get closer to the applicant and his men with rounds striking within 30 meters from an up-armored vehicle, causing shrapnel and debris to induce injuries as well.  Once the mortar rounds ceased the applicant directed his element to bound to the location of the mortar attack.

	f.  A memorandum, dated 15 May 2013, wherein the Deputy Chief, Awards and Decorations Branch, HRC, disapproved the request for award of the CIB to the applicant while deployed.  The HRC official stated:

   	(1)  In accordance with Army Regulation 600-8-22 (Military Awards) and Military Personnel (MILPER) Message 11-268, a Soldier must be personally present and under fire while serving in an assigned or attached to an Infantry or Special Forces primary duty position, and in a unit engaged in active ground combat, to close with and destroy the enemy with direct fires.  Improvised Explosive Devices (IEDs), Vehicle-Borne (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.

		(2)  The documentation provided indicates that mortar rounds impacted within 75-100 meters from the applicant's team.  Although engaged by the enemy, his unit was not engaged in active ground combat.  Therefore, this request does not meet the criteria for award of the CIB.

		(3)  If they (applicant's command) believed this determination to be unjust, they had the right to appeal to the ABCMR and they should provide the ABCMR a copy of this correspondence if they decide to appeal this decision.

	g.  A Memorandum For Record, dated 16 November 2012, wherein the applicant informed HRC of the attempts to contact the wartime chain of command on gaining recommendations for the CIB and reasons for the later submission for approval.

4.  A review of the SSG McC-----'s and SGT Y---'s records did not reveal they were recommended for and/or awarded the CIB for "participation in ground combat operations under enemy hostile fire to liberate Iraq in support on OIF on 6 June 2008."  As such, the records of the seven other Soldiers who were part of the applicant's 9-man squad were not reviewed.

5.  Army Regulation 600-8-22 states there are basically three requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  The CIB is authorized for award for the War on Terrorism (which includes Afghanistan (OEF) and Iraq (Operation Iraqi Freedom (OIF)) from 19 March 2003 to a date to be determined).

6.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states 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.  There are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is 
engaged in active ground combat, and he must actively participate in such ground combat.

2.  The evidence of record confirms he held an infantry specialty while apparently assigned to an infantry platoon.  Unfortunately, the specific facts and circumstances surrounding the incident failed to show the applicant and his squad actively engaged in ground combat at the time.  In addition, a review of the records of two of these Soldiers failed to show either Soldier was awarded the Combat Infantryman Badge during the same period of deployment.

3.  The evidence shows his dismounted unit received six mortar rounds 75-100 meters from their position.  After they broke contact from the impact of the mortars they tried to find the observers and the mortar crew.  They stopped two individuals on a motorcycle and questioned them.  The applicant determined that the two men were likely involved with the mortar attack, but he did not have enough evidence to detain them.  While the applicant's unit was engaged by the enemy, his unit did not engage in active ground combat with the enemy.  Even though they believed the two individuals they questioned were involved they could not confirm this.  They also did not engage in ground combat with the two enemy individuals.  They stopped and questioned them and let them go.  At best, this is an example of passive rather than active engagement.  By all accounts, there is insufficient evidence the applicant and his unit actually engaged the enemy in combat fire.

5.  In the absence of additional evidence that conclusively shows he actively participated in ground combat, regrettably, there is insufficient evidence upon which to base award of the CIB in this case.  Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.

6.  With respect to the personal hearing, the applicant’s request for a personal appearance hearing was also 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 personal appearance hearing is not warranted to serve the interest of equity and justice 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)                                         AR20130010541



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ABCMR Record of Proceedings (cont)                                         AR20130010541



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