IN THE CASE OF:	  

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20140001463 


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 reinstatement of his Basic, Senior, and Master Explosive Ordnance Detonation (EOD) Badges. 

2.  The applicant states, in effect, that the revocation of his EOD Badges is unjust because his conduct was neither grossly negligent nor did he flagrantly violate EOD safety procedures or regulations.  Accordingly, the regulatory standards for revocation of his EOD Badges have not been properly established and his badges have been unjustly removed.  He appealed to the U.S. Army Human Resource Command (HRC), and his appeal was denied due to actions that were grossly negligent and a flagrant violation of EOD procedures which is incorrect and not supported by the facts.  He admits to deviating from the black-letter rules codified in EOD publications but such deviations are contemplated by the publications themselves.  Many Soldiers in the EOD community and his chain of command agree that the revocation of his badges does not meet the regulatory standards for revocation of his badges as a negligence determination should be premised on his actions and how they deviated from those of a reasonably prudent Soldier; however, the determination of negligence in his case rests solely on the fact that he and other Soldiers were injured.

3.  The applicant provides a list of enclosures titled “Appeals Packet with Page Count Index.”




COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s EOD Badges be reinstated.

2.  Counsel states, in effect, that the preponderance of evidence does not show the applicant was grossly negligent in the performance of his duties.  A commander may revoke an EOD Badge based on a determination that the awardee is grossly negligent in the performance of his duties and Army Regulation 735-5 defines gross negligence as an extreme departure from due care resulting from an act or omission and is accompanied by a reckless, deliberate, or wanton disregard for foreseeable loss or damage.  The denial by HRC to reinstate his badges is in error because his actions were not grossly negligent.  Given the applicant’s years of experience and training he made a judgment that the munitions were safe to approach in 10 minutes vice 30 minutes which does not constitute gross negligence.  This is the only incident the applicant has had in his career and he accepts full responsibility for the incident and is determined to use it as an opportunity to become a better EOD technician.

3.  Counsel provides a three-page memorandum outlying her arguments.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 August 2001 for a period of   4 years, training as an EOD specialist, and a cash enlistment bonus.  He completed his training, was awarded the military occupational specialty, and he has remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 1 November 2007.

2.  His records show that he was awarded the basic EOD Badge on 
12 November 2002, the Senior EOD Badge on 20 September 2005, and the Master EOD Badge on 29 October 2010.

3.  On 16 December 2010, seven pieces of unknown unexploded ordnance were brought in to the compound in Afghanistan by the unit that discovered them and they were determined to be Russian ZAB 2.5 incendiary sub-munitions in extremely poor condition.  Due to the condition of the munitions, it was determined that they should be destroyed, and on 17 December 2010 the applicant’s team transported the munitions to a demolition pit for exploitation and disposal.  

4.  It appears that during the process of destroying the munitions the applicant waited only 10 minutes after the fire had gone out to approach the site instead of waiting the 30 minutes that is considered standard safety procedures.  As a result, an explosion occurred, injuring the applicant and four other personnel. 

5.  An investigation was conducted under the provisions of Army Regulation 15-6 on 18 December 2010 which found the following:

   a.  The applicant failed to follow the directions of the unit’s operation section in regard to the disposition of the seven Russian sub-munitions.

   b.  The applicant failed to observe the safety guidelines as outlined in Technical Manual 60A-1-1-22 (Paragraph 2-2v) which states “Do not" perform Render Safe Procedures (RSP) if blowing in place is permissible.  If authorized by service directives and at the discretion of the officer in charge, the RSP will be limited to those procedures that do not require contact with the fuse or munitions.  The team members stated in all of their statements that they wrapped the item with three layers of detonation cord.

   c.  The applicant failed to observe the safety guidelines as outlined in 
TM60A-1-1-22 (paragraph 2-2m), by failing to observe the minimum wait time of
30 minutes after the cessation of burning to approach the site.  The applicant and his team waited only 10 minutes before proceeding down to the incident site.

   d.  The applicant failed to observe the safety guidelines as outlined in 
TM60A-1-1-22 (paragraph 2-2r), by allowing non-essential personnel in the vicinity of EOD operations.  He allowed his team members and security detail to approach the site causing all personnel to receive injuries when components of the item detonated.

   e.  He failed to submit a pre-technical report to EOD Technical Division and allow for a proper amount of time for a response and he failed to follow the proper procedures in conducting a technical-intelligence report by not taking detailed measurements, proper photographs, or X-rays of the device or coming up with an RSP plan.

   f.  No risk assessment was completed prior to commencing EOD operations for this incident.

6.  The investigating official recommended that the applicant receive a Letter of Reprimand from his company commander for failure to enforce safety guidelines, that he be required to conduct a class for his peers on the proper procedures for conducting demolition operations and the use of external personnel during those operations, that his team leader certification be revoked due to his total disregard of EOD safety procedures, and that he receive the maximum punishment afforded under non-judicial punishment due to his failure to comply with the lawful directions of operations personnel which caused other members to be injured.

7.  On 25 January 2011, the Combined Joint Task Force Commander in Afghanistan revoked the applicant’s EOD Badges due to negligence and violation of EOD safety regulations.

8.  On 31 March 2011, a legal review of the revocation of the applicant’s EOD Badges was conducted by the Command Staff Judge Advocate which opined that the revocation was fully supported by the evidence and that there was no defense or extenuating circumstances in the investigation that should be considered as grounds for badge reinstatement.

9.  On 13 December 2011, the applicant submitted a four-page rebuttal to the revocation of his EOD Badges to HRC in which he gave his version of what occurred and contended that his actions were not grossly negligent and did not warrant the revocation of his badges. 

10.  On 14 March 2012, the applicant submitted a request for reinstatement of his EOD Badges to HRC.  The Chief of Ordnance at the U.S. Army Ordnance School reviewed the applicant’s appeal and recommended that his appeal be denied.  The HRC Awards and Decorations Branch denied his appeal on
18 September 2012.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that commanding generals of divisions and higher command; commanders of separate groups or equivalent headquarters exercising operational control of EOD personnel or units; Commandant, U.S. Army Ordnance Missile and Munitions Center and School; and a commander of an EOD Control Group or units may approve awards of all levels of badges.  It also provides that any EOD Badge may be revoked by a commander having the authority to award the badge upon his or her determination that the awardee was guilty of gross negligence in the performance of assigned EOD duties or a flagrant violation of EOD safety procedures or regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been noted and appear to lack merit.

2.  While the applicant and counsel argue that the applicant’s actions did not constitute “Gross Negligence” or warrant revocation of his EOD Badges, the evidence of record shows that he did in fact fail to follow published safety guidelines during the disposal of the munitions in question and in doing so placed himself and others to unnecessary risk of harm. 

3.  The applicable regulations provide that any EOD badge may be revoked by a commander having the authority to award the badge upon his or her determination that the awardee was guilty of gross negligence in the performance of assigned EOD duties or a flagrant violation of EOD safety procedures or regulations. 

4.  The commander who revoked his badges apparently believed that the applicant’s actions constituted gross negligence or a flagrant violation of EOD safety procedures or regulations and he was within his authority to revoke the applicant’s badges.

5.  It is also noted that the applicant has appealed the revocation of his badges to HRC and both HRC and the proponent agree that revocation of his badges was appropriate under the circumstances.

6.  After reviewing the evidence presented in this case, it appears that the applicant has not submitted sufficient evidence to show that his EOD Badges were unjustly revoked or that he was not afforded due process.

7.  Accordingly, there appears to be no basis to grant his request for reinstatement of his EOD Badges.

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)                                         AR20140001463



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ABCMR Record of Proceedings (cont)                                         AR20140001463



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