MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             3 May 2000
	DOCKET NUMBER:    AR1999024055

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Through counsel that his records be corrected to show award of the Combat Infantryman Badge pursuant to Headquarters United States Forces Central Command Permanent Order 89-156, dated 23 April 1991, by removing any authority or document which revokes the applicant’s award of the Combat Infantryman Badge (CIB).

APPLICANT STATES:  In effect, that counsel will represent him.

COUNSEL CONTENDS:  In a six-page brief with 13 enclosures, that the Army Board for Correction of Military Records (ABCMR) should remove from the applicant’s records any document or authority which revokes his award of the Combat Infantryman Badge.  In his brief, counsel first presents facts and provides a historical review of the events leading to the revocation of the applicant’s CIB.  An officer evaluation report (OER) for the period 13 December 1990 through 6 June 1991 is presented to show that the applicant was the commander of a Special Operations Chemical Reconnaissance Detachment which was part of the 1st Battalion, 3rd Special Forces Group, of the Army Special Operations Command.  Counsel points out that the OER reflects the applicant was “engaged in ground combat operations in Kuwait City during which he performed several sensitive theater-level missions under hazardous conditions in an outstanding manner.”

Counsel then addresses the revocation action.  Over five and a half years after award of the CIB, the applicant was informed by the U.S. Total Army Personnel Command (PERSCOM) that a question had been raised by the Military Awards Branch as to his eligibility for the award of the CIB.  In a 13 December 1996 memorandum, PERSCOM advised the applicant of the criteria for award of the CIB, that he did not possess the required infantry or special forces Area of Concentration (AOC), and that he had the option of submitting a statement in his behalf before the matter was considered.  Counsel contends that, on 12 March 1997, PERSCOM revoked the applicant’s award of the Combat Infantryman Badge “solely on the basis of the fact that [the applicant] did not have the…infantry or special forces primary specialty…”.  Counsel also contends that the reference (the 25 February 1995 version of Army Regulation 600-8-22, paragraph 8-6c(1)) cited as authority for this action is inappropriate for reasons presented later in the legal brief.  Instead, counsel states that the applicant was the commander of a special forces unit which satisfied the “applicable regulatory requirements of Army Regulation 672-5-1 (contained in All Ranks update number 15 dated 1 October 1990).  Then counsel argues essentially that a personnel action taken in 1991 cannot properly be controlled by a regulation issued in February 1995 when in fact there was another applicable regulation in effect at the time in question.

Counsel then proceeds to discuss the provisions of Army Regulation 672-5-1.  He writes that this regulation “provides that personnel with other than an infantry or special forces MOS [military occupational specialty] who are attached/assigned to an infantry or ranger unit engaged in active ground combat are not eligible for the CIB [Combat Infantryman Badge] regardless of the circumstances.”  Based on this cite, counsel argues that the applicant is not excluded from award of the Combat Infantryman Badge in this case because he was not attached or assigned to an infantry or a ranger unit, but instead was the commander of a “Special Forces unit”.  Further, he contends that his interpretation of this exclusionary paragraph is consistent with the criteria for award of the Combat Infantryman Badge found in 25 February 1995 version of Army Regulation 600-8-22 from which the reference “who are attached/assigned to an infantry or ranger unit…” was deleted.  

Counsel then noted that “Special Forces officers” were not included in the eligibility requirements for the Combat Infantryman Badge contained in the 1984 version of Army Regulation 672-5-1.  He contends:  “it is reasonable to conclude that the 1 October 1990 version of the regulation was specifically designed to expand eligibility to include officers with Special Forces affiliation.  That affiliation pertains not only to the qualifications of the officer in question, but to the nature of the unit, the duties assigned, and the indicia of branch affiliation.  In this case infantry or ranger units would not suffice for award of the CIB to an other than infantry or Special Forces branch qualified officer.  However, no such exclusion exists with respect to officers who are attached or assigned to Special Forces units which were engaged in active ground combat.”

Counsel then reiterates that paragraph 5-7 of Army Regulation 672-5-1 in the applicable regulation for award of the Combat Infantryman Badge at the time in question and is also the authority for award of the Combat Infantryman Badge to the applicant as shown on his orders.  He continues that the 12 March 1997 PERSCOM memorandum states “the Infantry or Special Forces SSI does not mean [sic.] have to be the soldier’s primary specialty, as along as the soldier has been properly trained in Infantry or Special Forces tactics, possess the appropriate skill code and is serving in that specialty when engaged in active ground combat.”  Counsel then shows that the applicant is properly trained in Special Forces tactics because he is a graduate of the Special Operations Detachment (2E-18a) course (15 January to 5 June 1987).  Further, counsel states that the proponent for the Special Forces Branch supports the applicant’s request, that the applicant’s attendance at the Officer Advance Course and stabilization was accomplished by Special Forces Branch.  Counsel continues that the regulation in effect at the time in question does not specify that an officer must be in the branch of infantry or Special Forces; rather, it does specify that he must be an “Infantry or Special Forces officer.”  Counsel concludes that the analysis used to justify the withdrawal of the Combat Infantryman Badge to the applicant is predicated on his branch rather than his duties and that the eligibility requirements for award of the Combat Infantryman Badge do not use the term “branch” anywhere in their criteria.
Counsel predicates his appeal to the ABCMR on two grounds.  The first ground, he contends, is “the interpretation of a subsequently issued regulation to change the rules to the detriment of [the applicant].  Such effort is fundamentally unfair and violates all concepts of administrative due process.  Regulations in effect at the time and which are subsequently changed should not be used to retroactively alter an award to the detriment of a soldier.”  Counsel then discusses the Title 32 of the United States Code of Federal Regulations which governs award of the Combat Infantryman Badge and concludes that the Code of Federal Regulations, revised as of 1 July 1998 does not “comport” with the Army Regulation cited to deny the applicant the badge which he “meritoriously earned.”  Counsel states that the Code of Federal Regulations specifies that an officer who has commanded an infantry unit is deemed to have been detailed infantry and is eligible for the award of the Combat Infantryman Badge notwithstanding the absence of written orders detailing him in Infantry.  Counsel concludes that it appears that the Army has followed a practice of awarding the Combat Infantryman Badge, assuming other criteria are met, to an officer other than infantry who under appropriate orders has commanded an infantry unit for at least 30 days.  Counsel states that he is not raising this authority to the attention of the Board as controlling in this matter; rather, it serves to point out the flexibility that has been applied to award of the Combat Infantryman Badge and the fundamental unfairness of the restricted, retroactive and narrow interpretation applied by the Army in this case.

Counsel’s second basis for reinstatement of the applicant’s Combat Infantryman Badge is the fundamental unfairness of revoking award of the Combat Infantryman Badge after a period of 6 years during which time the applicant “had an honest, reasonable and good faith belief that in fact he was authorized to wear the Combat Infantryman Badge.”  Counsel argues there is no evidence, nor is there any factual basis to conclude, that [the applicant] sought this award, contrived to receive it, manipulated any records or conducted himself in any manner to render him culpable for an erroneous award.  Rather, he performed his duties as required and as is evident from Order 89-156 dated 23 April 1991, accepted award of the Badge as a member of the Third Battalion, Fifth Special Forces Group.  To deprive him of a Badge under these circumstances when he satisfied the performance requirements of leading a Special Forces detachment under direct combat circumstances and when he performed the same general duties as numerous of his subordinates under identical circumstances for which there has been no question concerning the award is fundamentally unfair and constitutes gross injustice to [the applicant]”.  Counsel then proceeds to state that the applicant’s unit was a Special Operations Command asset unique in the Department of Defense, that he was treated as a Special Forces Detachment Commander by Special Forces Group, he wore Special Forces branch insignia, performed his specialty in chemical defense with Special Forces units, took his orders and conducted operational performance with a Special Forces chain of command, and sought to branch transfer and met every criterion for branch transfer except attendance at the advance course which was essentially delayed by Operation Desert Shield/Desert Storm.

Counsel also argues that there is a “stigma” associated with the revocation of the applicant’s award of the Combat Infantryman Badge in that it implies that the officer in question is in some way “at fault and culpable.”  Counsel argues that the mere suggestion that he wore a Combat Infantryman Badge and was not entitled to it is a matter which, within the military community, carries “great negative implication” and then refers to the incident involving a former Chief of Naval Operations.  Counsel contends that only the restoration of the award will remove the stigma.  

Finally counsel argues that award of the Combat Infantryman Badge in this case was not made casually; rather, it “was the result of a deliberative process which considered the circumstances of [name omitted] duties, his performance of these duties and the hostile environment in which they were performed.  The gravity of the decision to award the Combat Infantryman Badge stands in sharp contrast to the mechanical revocation process to which he was subjected.  This award was justified by two combat battalion commanders at the time, and has been supported subsequently by the entire Special Forces chain of command.  Appealing to the Board’s equitable and legal authority, the revocation is inappropriate and deserves abandonment.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was commissioned on 28 May 1986 as a second lieutenant in the Chemical Corps upon graduation from the United States Military Academy.  At the time in question, he was the commander of the 56th Chemical Detachment assigned to the 1st Battalion of the 3d Special Forces, but the applicant was attached to the 5th Special Forces Group during Operation Desert Storm.  

The applicant resigned from the Army effective 13 July 1991 to attend medical school.  He completed his Doctor of Medicine Degree on 20 June 1995, returned to active duty, and was promoted to major on 27 October 1998.

The applicant’s Official Military Personnel File (OMPF) microfiche contains his  Service School Academic Report for the period 28 May 1986 through 26 November 1986 which shows that he completed the Chemical officer Basic Course in military occupational specialty 74A.

The applicant’s OMPF also contains his Service School Academic Report for the period 28 November 1986 through 5 June 1987 which shows that he completed the Special Operations Detachment Officer Qualification Course which was conducted from 15 January 1987 through 5 June 1987.
The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 13 July 1991 is authenticated in his own hand.  This discharge document shows that he served in Southwest Asia from 16 January 1991 to 16 March 1991, but does not show the CIB as an authorized award.

The applicant’s DD Form 214 which covers his active duty from 28 May 1986 through 13 July 1991 shows the entry “74A CHEMICAL CORPS 5YRS 2MOS//NOTHING FOLLOWS//” in item 11 (Primary Specialty).

The applicant’s Officer Evaluation Reports (DA Forms 67-8) for periods 31 January 1990 through 12 December 1990 and 13 December 1990 through 6 June 1991 show his branch as “CM” [chemical] and his designated specialty as “74A” [chemical] in blocks 4 and 5, respectively of Part I (Administrative Data).  The applicant authenticated this data on both OER’s in his own hand.  In Part III (Duty Description), his duty position is shown as “Chemical Recon Detachment Commander” with a “SSI/MOS [special skill identifier/military occupational specialty] of 74A00.  The officer evaluation report for the period 13 December 1990 through 6 June 1991 covers the applicant’s service in Southwest Asia.  

The applicant’s Officer Evaluation Reports for periods 31 January 1990 to 12 December 1990 and 13 December 1990 through 6 June 1991 contain in Part III (Duty Description) his principal duty title, his SSI/MOS and narrative description of his duties.  The narrative description on both of these DA Forms 67-8 is:  “Command a Special Operations Chemical Reconnaissance Detachment with a current world wide mission to conduct NBC Special Reconnaissance to include chemical and biological sampling operations.  Responsible for developing the detachment into a highly skilled Special Operations force capable of deploying and sustaining itself in designated contingency areas by threat priority.  Capable of operating with an ODA in a denied area or unilateral in a non-denied area.  Maintain a high state of operational readiness with unique mission capabilities of NBC Special Reconnaissance and NBC Foreign Internal Defense.”

The rater portion (Part V) of the applicant’s Officer Evaluation Report for the period 13 December 1990 through 6 June 1991 contains the narrative essentially describing his performance during Operation Desert Storm as follows:  [The applicant’s] performance during this period was absolutely superb.  Faced with the difficult challenge of deploying a unique Special Operations Chemical Reconnaissance Detachment to Desert Shield, this capable leader thoroughly prepared, professionally coordinated and flawlessly executed the deployment.  While attached to the 5th Special Forces Group during Operation Desert Storm, he was tasked with the preparation of an extremely sensitive theater-wide sampling mission.  His detailed planning and preparation were lauded by the Group Operations Officer and other senior officers.  Based on his performance and the readiness of his unit, [the applicant] was selected to conduct interoperability training with both Saudi Arabia and Czechoslovakian forces.  During ground combat operations in Kuwait City, he again performed several sensitive, theater level missions under hazardous conditions in an outstanding manner.  This officer is a true professional in every sense of the word.” 

PERSCOM Message with a date/time group of 171226Z January 1991 delegated wartime award approval authority for Operation Desert Storm.  In the case of the CIB, award approval authority was delegated to the Commander of Army Forces Central Command with authority to further delegate award authority for the CIB to division commanders who have troops committed to the combat operation.  This message also stated that the CIB may be awarded only to infantry and special forces officers and enlisted soldiers (other than special forces medics) who satisfactorily perform infantry or special forces duties in active ground combat.

Headquarters, United States Army Forces Central Command Permanent Order 89-156, dated 23 April 1991, awarded the CIB to selected members of the 3d Battalion, 5th Special Forces Group (Airborne).  The period of service on this order is 24 February 1991 to 28 February 1991 and the authority for award is “Paragraph 5-7, AR 672-5-1”  The applicant’s name is listed on this order.

On 25 September 1996, the Medical Corps Branch was advised by a military person that it was possible that the applicant was improperly awarded the CIB.  The allegation noted that the applicant was the chemical officer of the 1st Battalion, 3d Special Forces, from Fort Campbell, Kentucky, and was not a member of the 3d Battalion, 5th Special Forces which had been deployed to Southwest Asia.  The Medical Corps Branch in turn requested that the Awards Branch review the award of the CIB to the applicant.

By U.S. Total Army Personnel Command (PERSCOM) Memorandum, dated 19 December 1996, the applicant was notified that the Awards Branch of PERSCOM “had been asked to look into [the applicant’s] eligibility for award of the Combat Infantryman Badge (CIB)”.  The PERSCOM memorandum stated the three requirements for award of the CIB contained in Army Regulation 672-5-1 in effect at the time in question and stated that initial review of the applicant’s personnel information indicated that he did not possess the infantry or special forces Area of Concentration (AOC) which would disqualify him from award of the CIB.  PERSCOM also offered the applicant an opportunity to submit as statement on his behalf not later than 31 January 1997 prior to PERSCOM making a decision in his case.

The applicant submitted a statement on his behalf, dated 27 January 1997, in which he contends that he was one of the first graduates of the “Special Operations Detachment Officer Qualification Course (2E-18A) and the 18A identifier on his diploma alone should “qualify for the Area of Concentration requirement.”  He also contends that as a first lieutenant in a promotable status to captain that he was formally selected and then managed by the Special Forces Branch and that he was authorized to wear the Special Forces insignia based on completion of the branch qualification course and formal selection.  

In his statement, the applicant also wrote that he served 3 years in Special Operations Forces from detachment through general staff wearing the Special Forces branch insignia and that no one ever questioned his wearing of the Special Forces branch insignia.  He also contends that he was told by the Chemical Corps branch that he would conduct all personnel matters with the Special Forces branch.

In his statement, the applicant then addressed the fact that he was denied the opportunity to attend “any” officer advanced course because he was selected to command the 56th Special Operations Chemical Detachment and that this delayed his branch assignment to Special Forces.  Finally he contends that he believed he was in “some manner branched Special Forces or had the area of concentration (AOC)” because “Special Forces Branch rescheduled and delayed his advanced course schooling and authorized [him] to wear their branch insignia.  He concluded by stating that the “best interest of the Army and the soldier should be followed, not the letter.”

Attached to the applicant’s statement was a 20 February 1997 memorandum from a General Officer who supported the applicant’s request to restore award of the Combat Infantryman Badge.  The General Officer was not the applicant’s supervisor in Southwest Asia, but was his battalion commander during the time in question.  This General Officer contended that PERSCOM did not “consider the unique circumstances surrounding the management of this officer’s [the applicant’s] career” and reiterated the facts regarding completion of the Special Operations Detachment Qualification Course in 1987, career management by Special Forces branch, and command of the 56th Chemical Detachment which precluded the applicant’s attendance at the “Special Forces Officer Advanced Course prior to Operation Desert Storm.  In conclusion, the General Officer contends that it was the Army’s administrative error which resulted in absence of documentation of the applicant’s Special Forces AOC, that the Army should now correct his record to show that he possessed the Special Forces AOC during Operation Desert Storm, and that this “approach would be wholly consistent with the spirit of the CIB requirements and would properly recognize this officer’s wartime service.”

By PERSCOM memorandum, dated 12 March 1997, the applicant was notified his award of the CIB had been revoked in accordance with Paragraphs 1-27 and 1-29a of Army Regulation 600-8-22 (Military Awards), dated 25 February 1995 and with an effective date of 28 March 1995.  This memorandum stated the award criteria for the Combat Infantryman Badge to soldiers serving in the Persian Gulf War was outlined in Army Regulation 600-8-22.  The PERSCOM memorandum further stated:  “Paragraph 8-6k requires that prior to approval of the award [the Combat Infantryman Badge], soldiers must meet the general criteria outlined in paragraphs 8-6b and 8-6c.  Paragraph 8-6c(1) requires that an officer must be an Army infantry or special forces officer (SSI 11 or 18).  Paragraph 8-6c(3) states that personnel with other than infantry or special forces primary specialty are not eligible regardless of the circumstances.  The infantry or special forces SSI does not [mean (sic)] have to be the soldier’s primary specialty, as long as the soldier had been properly trained in infantry or special forces tactics, possess the appropriate skill code and is serving in that specialty when engaged in active ground combat.” 

Paragraph 4 of the 12 March 1997 PERSCOM memorandum reviewed personnel management and qualifications for SSI 18 as stated in Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Utilization).  The memorandum stated that, while officers are controlled by Special Forces Branch throughout their special forces training, they remain assigned to their basic branches.  Officers are “branched” to special forces and awarded SSI 18A upon successfully all of the following:  Special Forces Assessment Course; The Airborne Course; An Officer Advanced Course; Special Forces Detachment Officer Qualification Course and Promotion to Captain.

The 12 March 1997 PERSCOM memorandum concluded that the applicant did not meet the basic criteria for award of the CIB “because branch designator 18A was not awarded“.  The award of the applicant’s CIB was revoked by PERSCOM Permanent Orders 71-3, dated 12 March 1997.

Army Regulation 672-5-1 (Military Awards), dated 1 October 1990 with an effective date of 1 November 1990, governed Army awards during the Operations Desert Shield and Desert Storm.  Paragraph 5-7a states eligibility requirements for award of the CIB:  “An individual must be an Army infantry or special forces officer (SSI 11 or 18) in the grade of colonel or below , or an Army enlisted soldier or a Army warrant officer with infantry or special forces MOS, who subsequent to 6 December 1941 has 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.  Battle participating credit alone is not sufficient; the unit must have been in active ground combat with the enemy during the period.  Personnel with other than an infantry or special forces MOS who are attached/assigned to an infantry or ranger unit (Brigade or smaller) engaged in active ground combat are not eligible for the Combat Infantryman Badge regardless of the circumstances.  Commanders are not authorized to make any exceptions to this policy except as noted below.”

Army Regulation 600-8-22, dated 25 February 1995 with an effective date of 28 March 1995, prescribes Army policy and procedures concerning awards.  Paragraph 8-6 provides for award of the CIB, and paragraph 8-6k specifies that for the Persian Gulf War (Operation Desert Storm) individuals must have met the criteria in paragraphs 8-6b and c to be awarded the CIB during the period 17 January 1991 to 11 April 1991.  These paragraphs state that 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.  Specific eligibility requirements state:  “(1) A soldier must be an Army Infantry or special forces officer (SSI 11 or 18) in the grade of colonel or below, or an Army enlisted soldier or warrant officer with an infantry or special forces MOS, who subsequent to 6 December 1941 has 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.  Eligibility for special forces personnel (less the special forces medical sergeant) accrues from 20 December 1989.  Retroactive awards for special forces personnel are not authorized.  (2)  A recipient 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.  The unit in question can be of any size smaller than brigade.  For example, personnel possessing an infantry MOS in a rifle squad of a cavalry platoon or in a cavalry troop would be eligible for award of the CIB.  Battle or campaign participation alone is not sufficient; the unit must have been in active ground combat with the enemy during the period.  (3)  Personnel with other than an infantry or special forces MOS are not eligible regardless of circumstances.  The infantry or special forces SSI or MOS does not necessarily have to be the soldier’s primary specialty, as long as the soldier has been properly trained in infantry or special forces tactics, possesses the appropriate skill code, and is serving in that specialty when engaged in active ground combat as described above.  Commanders are not authorized to make any exceptions to this policy.”

Army Regulation 600-8-22, dated 25 February 1995 with an effective date of 28 March 1995, prescribes Army policy and procedures concerning awards.  Paragraph 1-27 of this regulation states:  “Revocation of awards will be announced in permanent orders.”  

Paragraph 1-29 of Army Regulation 600-8-22, dated 25 February 1995, states:  “a.  Once an award has been presented, it may be revoked by the awarding authority if facts subsequently determined would have prevented the original approval of the award had they been known at the time.  Failure to be reassigned or separated as originally scheduled does not constitute grounds for revocation of an award which has been presented.  The decision to revoke an award may not be delegated by the award authority.  In making the decision, the awarding authority may consider a statement of concurrence or nonoccurrence (with comments) from the individual concerned.  Upon revocation, the affected individual will be informed that he or she may appeal the revocation through command channels to Commander, PERSCOM, ATTN: TAPC-PDA, Alexandria, VA 22332-0741, for final review.  

Paragraph 1-30 of Army Regulation 600-8-22, dated 25 February 1995, states:  “a.  Commanders authorized to award combat and special skill badges are authorized to revoke such awards.  An award, once revoked, will not be reinstated except by Commander, PERSCOM, ATTN: TAPC-PDA, Alexandria, VA 22332-0741, when fully justified.” 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was commissioned in the Chemical Corps, attended the Chemical Officer Basic Course and possessed the military occupational specialty of 74A which is Chemical Corps throughout his active duty.

2.  The applicant’s principal duty prior to service in support of Operation Desert Storm in Southwest Asia was “Chemical Recon Detachment Commander” with a “SSI/MOS [special skill identifier/military occupational specialty] of 74A00.

3.  The applicant’s principal duty during the period of his service in support of Operation Desert Storm in Southwest Asia was “Chemical Recon Detachment Commander” with a “SSI/MOS of 74A00.  The applicant’s officer evaluation report covering the period 13 December 1990 through 6 June 1991 shows he performed essentially chemical officer duties in Southwest Asia during Operation Desert Storm.

4.  Army regulation, which governed award of the CIB at the time in question, stated among several eligibility requirements that “An individual must be an Army infantry or special forces officer (SSI 11 or 18) in the grade of colonel or below, or an Army enlisted soldier or a Army warrant officer with infantry or special forces MOS.

5.  Initial review of the applicant’s personnel information by PERSCOM revealed that he did not possess an infantry or special forces AOC which would disqualify him from award of the CIB.  PERSCOM offered the applicant an opportunity to submit a statement in his behalf and the applicant responded.  PERSCOM, after due consideration, concluded that the applicant did not meet the basic criteria for award of the CIB “because branch designator 18A was not awarded“.  As a result, award of the applicant’s Combat Infantryman Badge was revoked by PERSCOM Permanent Orders 71-3, dated 12 March 1997 in accordance with paragraphs 1-27 and 1-29 of Army Regulation 600-8-22 in effect at this time.

6.  The Board noted the numerous arguments by counsel to include contentions that PERSCOM cited the wrong award regulation, that the applicant was eligible for the Combat Infantryman Badge because he was “treated” as a Special Forces detachment commander, that the 1 October 1990 version of the regulation was specifically designed to afford eligibility for the CIB to include officers with “Special Forces affiliation”, that “flexibility” has been applied historically to award of the CIB”, . that to deny the applicant award of the CIB is “fundamentally unfair and constitutes gross injustice”, that there is a stigma associated with revocation of awards, and that the applicant was “subjected” to a “mechanical revocation process”.  However, these contentions fail to provide the evidence necessary for the Board to overturn the decision by PERSCOM to revoke award of the Combat Infantryman Badge to the applicant.

7.  The Board noted that both Army Regulation 672-5-1 and Army Regulation 600-8-2 require that, for an officer to receive the Combat Infantryman Badge, he must be an Army infantry or special forces officer (SSI 11 or 18).  This criterion is the administrative basis for PERSCOM’s decision to revoke the applicant’s award of the Combat Infantryman Badge.

8.  The governing regulation for award of the Combat Infantryman Badge requires that a recipient of the Combat Infantryman Badge 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. The Board considers this criterion as the key consideration in award of the Combat Infantryman Badge in this particular case as well as the key to any decision to overturn the revocation order by PERSCOM.  

9.  The Board has determined that the applicant and his counsel have not provided compelling evidence that the applicant was actively engaged in ground combat as a special forces detachment commander in Southwest Asia during Operation Desert Storm.  This fact alone brings the original award of the Combat Infantryman Badge into doubt and certainly justifies PERSCOM’s decision to revoke the award of the Combat Infantryman Badge to the applicant.

10.  As a result of the foregoing, the Board concludes that there is insufficient evidence to show the applicant earned the Combat Infantryman Badge and that there is insufficient evidence for the Board to rescind U.S. Total Army Personnel Command Permanent Orders 71-3, dated 12 March 1997 which revoked the applicant’s award of the Combat Infantryman Badge.

11.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

12.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  __JHK___  GRANT

________  ________  __RVO___  GRANT FORMAL HEARING

__EWL___  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999024055	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000503	
TYPE OF DISCHARGE	ACTIVE DUTY 	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	NA	
DISCHARGE REASON	NA	
BOARD DECISION	SPLIT VOTE	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	107.000	
2.		
3.		
4.		
5.		
6.		

	a.  The applicant was assigned as a Chemical Corps Officer in the MOS/SSI of 74A prior to and at the time he served in Southwest Asia.  

	b.  The applicant, as a Chemical Corps Officer, commanded a “Chemical Recon Detachment” which was attached to the 5th Special Forces Group while in Southwest Asia.  

	c.  The applicant did not possess and was not assigned in the MOS/SSI of 11 or 18A at the time of his service in Southwest Asia.

	d.  The applicant, while in Southwest Asia, prepared an extremely sensitive theater-wide sampling mission, conducted interoperability training with both Saudi Arabia and Czechoslovakian forces, and, during ground combat operations in Kuwait City, he performed several sensitive, theater level missions under hazardous conditions.

	e.  The applicant did not meet the eligibility requirements for award of the Combat Infantryman Badge as stated in Army Regulation 672-5-1 in effect at the time in question.  

	f.  PERSCOM inquired into the award of the applicant’s Combat Infantryman Badge.  PERSCOM also provided the applicant an opportunity to present his views and the applicant responded.  

	g.  After due deliberation, PERSCOM determined that the applicant did not meet the requirements for award of the Combat Infantryman Badge and revoked that portion of the pertinent orders in accordance with the Army award regulation in effect at that time.

8.  The Board also considered the points raised counsel in support of restoring the applicant’s award of the Combat Infantryman Badge as follows:

	a.  Counsel contends that the “sole basis for questioning award of the Combat Infantryman Badge is that he did not possess either infantry or special forces areas of concentration and therefore was not eligible the award.”  This is essentially the basis for PERSCOM’s revocation of the 

The Board has also noted counsel’s argument that to deny the applicant award of the Combat Infantryman Badge is “fundamentally unfair and constitutes gross injustice”, because he led a “Special Forces detachment under direct combat circumstances”; he was “treated as Special Forces detachment commander”; he “wore Special Forces branch insignia”, “he performed his specialty in chemical defense with Special Forces units”; he “sought branch transfer and met every criterion for branch transfer except for the attendance at the advance course”, delayed because of the onset of Operation Desert Storm”.  In this matter, the Board notes that proper Army Regulation governing award of the Combat Infantryman Badge was in effect at the time and the applicant did not meet the eligibility requirement of that regulation for award of the Combat Infantryman Badge.  Notwithstanding the contentions that the applicant was a Special Forces Detachment Commander, led his unit in combat, wore the. insignia and would have branch transferred except for the Persian Gulf War, the fact remains that the applicant was a chemical officer in command of a chemical detachment (not a Special Forces Detachment) and did not meet the eligibility requirements of the regulation in effect at the time in question.

  sole basis for applicant’s officer evaluation report for his in Southwest Asia reflects that he was engaged in combat opertions in  was engaged inofficer evaluation report which states that PERSCOM’s reference to Paragraph 8-6c(1) of Army Regulation 600-8-22, dated 25 February 1995 with an effective date of 28 March 1995, in regard to the requirement for possessing “infantry or special forces primary specialty” is “inappropriate”.

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The Board noted that the applicant and counsel contend repeatedly that the applicant was eligible for award of the CIB because he led a “Special Forces detachment under direct combat circumstances”; he was “treated as Special Forces detachment commander”; he “wore Special Forces branch insignia”, “he performed his specialty in chemical defense with Special Forces units”; he “sought branch transfer and met every criterion for branch transfer except for the attendance at the advance course”, delayed because of the onset of Operation Desert Storm”.  However, evidence of record shows that the applicant was a chemical corps officer in command of a chemical detachment at the time of his service in Southwest Asia.  Further, evidence of record and statements by counsel and General Officers attest to the fact the applicant had not transferred to the Special Forces branch and had not been awarded the Special Forces SSI at the time of his service in Southwest Asia.  Therefore, the applicant did not meet the regulatory eligibility requirements for award of the CIB for his service in Southwest Asia because he did not meet the regulatory requirements for award of SSI 18 and did not posses SSI 18. 

and the fundamental unfairness associated with the restricted, retroactive and narrow interpretation which has been applied in the case of [name omitted].”