BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20160013928 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20160013928 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20160013928 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 the award of the Combat Action Badge based on a qualifying event during his service in Iraq in 2008. 2. The applicant states, in effect: a. He submitted his request to be awarded the Combat Action Badge to the National Guard Bureau (NGB) for service/action during Operation Iraqi Freedom. On 24 February 2008, while he and his unit were in Camp Bucca, Iraq, hostile forces attacked the camp using indirect fire (120-millimeter (mm) mortars). (1) NGB stated, "indirect fire was present at the base camp, however, [applicant] was located inside a structure with no indication [he was] in immediate danger." (2) The applicant asserts, in accordance with Army Regulation (AR) 600-8-22 (Military Awards), paragraph 8-8 (Combat Action Badge), subparagraph c (3), he was personally present and actively being engaged by enemy forces. [subparagraph c (3) states, "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.] b. According to Military Personnel (MILPER) message 11-268, table 8-1, step 5, note 3, it is extremely reasonable to assume he could have been injured or killed because he was in a Combat Housing Unit (CHU) that was made of non-ballistic, non-concussion proof material (sheet metal, plywood, and glass). [MILPER message 11-268, Title: Approved Changes to AR 600-8-22, Military Awards, issued 2 September 2011, contains Table 8-1 (Steps for Processing Award of Combat Badges). Step 5 of this table requires the Unit S-1 to attach substantiating documents to requests for the award of the Combat Action Badge, and includes references to Note 3 at the bottom of the table. Under Note 3 it states "Narratives and sworn statements of incidents will include the following: specific date of incident, proximity of the Soldier to the impacted area or small arms fire (in meters), and whether the Soldier could have reasonably been injured by the blast, detonation, or explosion.] c. The applicant states he was 50 meters [about 164 feet or a little over half of a football field] from the blast's epicenter. The blast killed a civilian employee who, at the time, was in a similar structure as the applicant. d. Citing Army Field Manual (FM) 23-90 (Mortars), chapter 7 (120-MM Mortar, M120), paragraph 28, note 1, the applicant claims a tube-fired projectile of similar size has a "kill-radius" of 60 to 75 meters. Based on this, he asserts, shrapnel, debris, or by falling contents from inside his CHU (i.e. wall lockers, bunk beds, weapon systems, air conditioning units, or shelving) could have killed or injured him. [FM 23-90 was last published on 1 March 2000 and was superseded by FM 3-22-90 on 31 December 2004. Until 1990, previous versions dealt only with the 81-mm mortar. The September 1990 and March 2000 iterations included the 120mm mortar. (There is no paragraph 7-28 in the September 1990 issue of the FM). Paragraph 7-28 (Authorized Cartridges) in the March 2000 edition describes smoke and high explosive cartridges that were available for use in the M120 mortar (including ground-mounted, carrier-mounted, and towed versions). Note 1 states, "When using enhanced ammunition, the bursting area of the round is 75 meters; when using NDI (non-developmental item, i.e. not developed by the Army but bought "off-the-shelf") ammunition, the bursting area of the round is 60 meters."] 3. The applicant provides: * memorandum, dated 7 July 2016, Subject: Request for Award of the Combat Action Badge * Combat Badge Quality Checklist for the applicant, undated * two letters from the applicant's Congressional Representative, dated 2 June 2015 and 28 July 2016, respectively * Congressional Recommendation for Appeal - Combat Action Badge for [applicant], Tennessee Army National Guard (TNARNG) * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 7 August 2008, with DD Form 215 (Correction to DD Form 214), dated 5 August 2008 * Orders Number 145-102, dated 25 May 2007 * applicant's Enlisted Record Brief, dated 29 July 2016 * applicant's Personnel Qualification Record - Enlisted, prepared 29 July 2016 * applicant's narrative of events * six DA Forms 2823 (Sworn Statement), all dated between 2015 and 2016 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 Army Board for Correction of Military Records (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. Having had prior enlisted service in the Regular Army, the applicant enlisted in the TNARNG on 2 October 2001. He was promoted to sergeant (SGT) on 24 September 2004. 3. Orders mobilized him in support of Operation Iraqi Freedom on 4 June 2007, and deployed to Iraq on 31 August 2007. While in Iraq, he was assigned to a field artillery company with duties as a battalion representative in the forward operating base (FOB) Purchase Request and Contracting Office. He redeployed on 21 May 2008. 4. On 7 August 2008, he was honorably released from active duty based on completing his required active service. His DD Form 214, as amended by a DD Form 215, shows he completed 1 year, 2 months, and 4 days. He was awarded or authorized: * Army Commendation Medal (2nd Award) * Army Good Conduct Medal * Army Reserve Components Achievement Medal (1st Award) * National Defense Service Medal (2nd Award) * Iraq Campaign Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Armed Forces Reserve Medal with "M" Device (2nd Award) * Noncommissioned Officer (NCO) Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Driver and Mechanic Badge with Mechanic Bar 5. His official military personnel record is void of any reference to the incident in question. 6. On 7 July 2016, an official from the U.S. Army Human Resources Command (HRC) provided a memorandum to the NGB, dated 7 July 2016, Subject: Request for Award of the Combat Action Badge. The official essentially stated: * the applicant's request for award of the Combat Action Badge was disapproved * the regulation requires the recipient to be personally present and actively engaging or being actively engaged by an enemy * MILPER message 11-268, table 8-1, step 5, note 3 adds the stipulation that the recipient must reasonably have been at risk of injury by blast, detonation, or explosion * in the applicant's case, there was indirect fire, but the applicant was located inside a structure with no indication he was in immediate danger 7. The applicant provides sworn statements and a document titled, Congressional Recommendation for Appeal - Combat Action Badge for [applicant]. All essentially agree: * Camp Bucca was struck by indirect fire (two apparent mortar rounds) around 2300 hours on 24 February 2008 * both rounds of indirect fire landed in a section of combat housing set aside for contract workers; one civilian local national contractor was killed, and others were wounded or injured (exact number unclear) * Companies A and B (applicant was assigned to Company B) were located in a separate part of the housing area * there is no evidence anyone from either company (including the applicant) was injured or killed as a result of the indirect fire a. Sworn statement by Staff Sergeant (SSG) CAM, dated 3 May 2015, states, in effect: * there were a total of 4 rockets fired, but only two impacted the housing area that quartered his unit's Soldiers * the impact area was located less than 50 meters from the CHU in which he lived * at the time, the Soldiers in his CHU were all in bed, and either asleep or just waking up * the second rocket struck closest to his location and caused the entire housing unit to shake and bounce; items were knocked off walls and things fell out of wall lockers * there was a lot of gravel and shrapnel that you could hear spraying the walls of the CHU; fortunately, no one from his unit was injured, and no damage was done to their housing unit * they all hit the ground and then began to check on each other; he and one other Soldier were in his CHU at the time * after the noise died down, they exited the CHU and proceeded to the bunker for accountability * he noticed the applicant as they headed to the bunker; the applicant had been in a CHU that was very close to his, and the applicant was making sure all of the Soldiers were okay * he and others in the unit were asked to write statements about what happened but nothing ever came of them; he did not keep a copy of his statement b. Sworn statement, dated 26 July 2016, written by SGT GRG, essentially states: * two rockets impacted the housing area where Soldiers of the field artillery unit were quartered (identified as Companies A and B) * at the time of the attack, the five Soldiers in his housing unit were asleep; the first rocket's landing caused all to dive to the floor and seek cover * the initial blast was less than 50 meters west of his CHU, and was close enough, and sufficiently strong, to shake the entire unit and cause the wall lockers to tip over, dumping the contents on the floor * shrapnel and debris sprayed the sides and roof of the CHU; there was also some damage to his housing unit * after he gathered himself together, he realized how lucky they all were to be alive; unfortunately one person was killed and there were several who were wounded * he and the applicant proceeded to the designated rally point for accountability c. Sworn statement, dated 5 May 2015, prepared by Major MAK, writes, in effect: * he was the battle captain for the MP battalion [higher headquarters for the applicant's field artillery unit] and was performing those duties on the night that indirect fire hit Camp Bucca * the estimated distance between the point of impact and the housing units was less than 50 meters on one impact, and about 100 meters for the second * both points of impact landed in parts of the housing area set aside for contracted workers * there was a row of HESCO barriers [brand name for a rapidly deployable barrier system] and the barriers reduced the blast/fragmentation area * Soldiers were knocked out of their beds, wall lockers were toppled, and shrapnel/debris from the impact was found about 100 meters from both points of impact d. Sworn Statement, dated 17 July 2015, made by MAJ PGA, stated, in summary: * he is writing this statement because the recommendations for the award of the Combat Action Badge were lost * he was the commander of Alpha Company; the MP battalion was their higher command * two Soldiers from his unit were on the Crater Analysis Team, whose role it was to determine the direction of flight of incoming rockets; this was done so a quick reaction force could be sent in response * he was back home on leave when this incident took place; and was notified on his return * he spoke with his acting commander and unit first sergeant; they said sworn statements had been completed for submission with an award recommendation for the Combat Action Badge * from that point forward, the tracking of this award recommendation was lost e. Sworn statement by Sergeant First Class JLP, dated 1 May 2015, that stated, in effect: * he was the NCO-in-charge for crater analysis that night; the two rockets had impacted within about 100 meters of the housing area that quartered Companies A and B * the immediate threat impacted a CHU within 15 meters of some of the CHUs that housed Companies A and B; this blast killed a civilian contractor and several were severely wounded * the second round landed in an open area about 100 meters away near some concrete bunkers; this blast injured a couple of civilian contractors * based on their crater analysis, they determined 120-mm rockets had been used; the blasts projected shrapnel and debris over a 250 meter omnidirectional pattern * one "gator" [military version of an all-terrain vehicle] and a Ford Explorer were destroyed, and large chunks of metal, wood, and shrapnel were observed in a 100 to 150 meter radius * the writer included a drawing depicting the locations of the CHUs in relation to the rocket points of impact f. A letter, dated 28 July 2016, from the applicant's Congressional Representative that included a document prepared by SSG TCM and titled, Congressional Recommendation for Appeal - Combat Action Badge for [applicant]. (1) This document provides a narrative of events describing the efforts to have the Combat Action Badge approved for the applicant, as well as a request to appeal the decision to deny the award. (2) The document asserts it is reasonable to assume shrapnel, debris, or by falling contents from the structures hit by the rocket could have injured or killed the applicant. (3) The writer further contends, "the reasonability of death or injury should not be questioned when you are 50 meters away from an [sic] large explosion with a blast radius of almost 200 meters." g. No evidence was submitted that the applicant, or any member of either Companies A or B, received the Purple Heart based any injuries incurred during this event. REFERENCES: 1. AR 600-8-22 prescribes policies and procedures for military awards. a. Paragraph 8-8, states, on 2 May 2005, the Chief of Staff of the Army approved the creation of the Combat Action Badge to provide special recognition to Soldiers who personally engaged, or were engaged by, the enemy. (1) The requirements for award of the Combat Action Badge are branch and military occupational specialty immaterial. (2) 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 Combat Action Badge. (3) A recipient must not be assigned or attached to a unit giving the Soldier eligibility for either the Combat Infantryman Badge or Combat Medical Badge. For example, an infantryman assigned to Corps staff could be awarded the Combat Action Badge, but if assigned to an infantry battalion, that Soldier would no longer be eligible. (4) The Combat Action Badge is not intended to be awarded to all Soldiers who serve in a combat zone or imminent danger area. Instead, the Soldier must be: * performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized * personally present and actively engaging or being engaged by the enemy * performing satisfactorily in accordance with the prescribed rules of engagement b. Combat Infantryman Badge is awarded to infantry Soldiers who are assigned to an infantry unit engaged in active ground combat, and who has actively engaged in such combat and performed satisfactorily. The recipient must be personally present and under hostile fire. 2. Article, titled Wartime Spine Injuries: Understanding the Improvised Explosive Device and Biophysics of Blast Trauma, published 26 December 2011 in The Spine Journal (an official peer-reviewed medical journal for the North American Spine Society), was written by two military doctors and one civilian physician. It describes explosive devices and their associated injuries. Regarding the biophysics of blast injuries, the article states, in summary: a. When an explosive device is detonated, the explosive material goes through a chemical reaction that releases highly compressed, super-heated gas. This gas forms a blast wave, the leading edge of which is highly compressed (referred to as the "blast front"). The blast front is the principle cause of primary blast injuries (also known as "overpressure" injuries). There is a rapid decrease in peak overpressure as the blast front/wave travel from the blast epicenter. b. The blast front is quickly followed by the relatively slower blast wave, which propels fragmentation, large objects and people considerable distances. The blast wave is the principle cause of secondary blast injuries. c. In an open space environment, the nearly instantaneous peak in ambient air pressure quickly decays as it travels away from the explosion's epicenter through a well-defined pressure/time curve, called the "Friedlander Wave." d. The article includes an illustration of the "Friedlander Wave" for an open-field explosion of a 155-mm mortar shell [the round purportedly employed in the indirect fire attack was smaller; 120-mm], and displays the associated pounds per square inch (psi) with distance from the epicenter: * 0 to 40 feet - 130 to 250 psi, death from primary blast injuries * 40 to 100 feet - 30 to 120 psi, possible lung injury and death from fragments/shrapnel * 100 to 280 feet - 2 to 15 psi, possible ear drum rupture and fragment injury * 280 to 1800 feet - no primary blast injuries, but possible injury due to fragments 3. The article also provides a table that classifies blast injuries as primary, secondary, tertiary, and quaternary. Classification Description Injury Pattern Primary "Overpressure" injury "Implosion" occurs at time of contact of body with blast front, then near instantaneously re-expands as blast front passes auditory shift (temporary hearing loss) (2 psi) eardrum ruptures (5 to 15 psi) lung injury (30 to 80psi) 50 percent chance of death (130 to 180 psi) probable death (200 to 250 psi) Secondary ballistic injury from bomb fragments and environmental material penetrating injuries Traumatic Brain Injury (TBI) Tertiary Whole body translocation where blast wave propels the individual through the air; Large objects can become projectiles Crush injuries can occur blunt force trauma crush injuries TBI Quaternary All other explosion-related injuries burn injuries toxic gas asphyxiation 4. Army Tactics, Techniques, and Procedures (ATTP) 3-21.90 (Tactical Employment of Mortars), currently in effect, is an Army and Marine Corps multiservice publication that serves as a doctrinal reference for the employment of mortars. Chapter 8 (Mortar Firing Survivability Techniques and Defense) describes techniques for increasing survivability from enemy attack, to include enemy mortars. a. Positions should be constructed with sidewalls and overhead cover. Sidewalls are walls or barriers that stop fragments and reduce blast effects from near-miss impacts of rockets, artillery, and mortar rounds. They should be of minimal height, protect against the fragmentation and blast from near hits, and support overhead cover. b. The thickness of dry soil required to stop the fragmentation and blast effects of the indirect firing of a 152-mm round is 20 inches. Prefabricated barrier material is increasingly available [i.e. HESCO barriers], and are commonly used to build walls and barriers in semi-permanent positions. They provide excellent all-around protection. DISCUSSION: 1. The applicant is petitioning to be awarded the Combat Action Badge based on having been engaged by the enemy with indirect fire. He provides sworn statements in support of his request. HRC denied his initial request because, at the time of the incident, the applicant was inside a CHU that offered relative protection, and was about 50 meters from the point of impact. 2. The evidence submitted by the applicant does not include any official confirmation of the event (such as an investigation conducted at the time under AR 15-6 (Procedures for Administrative Investigations and Boards of Officers)). Because there is no official documentation provided, it is not possible to conclusively confirm the size of the round that struck the camp (and with that, the "kill-range" of that round), or the exact location of the impact, in relation to the applicant's CHU. 3. What he does offer are first-hand accounts, albeit, written more than 7 years after the event. Assuming the facts provided in these statements, it is possible to conclude the following: a. Indirect fire, asserted to be a 120-mm mortar round, struck in two locations, one of which was within 50 meters of the applicant. At the time of the event, the applicant was physically located in a CHU, as were most of those who provided first-hand accounts. b. While one civilian contractor was killed and others were injured, that death and those injuries were apparently limited to the contractor portion of the CHU housing area. The evidence suggests none among those occupying CHUs in Company A and B's section of the housing area (to include the applicant) were hurt. c. The CHUs inhabited by the Soldiers of Companies A and B had HESCO barriers, which, according to one statement, reduced the blast/fragmentation area. (1) Entire housing units shook and bounced, knocking items off the wall and out of wall lockers. A lot of gravel and shrapnel sprayed the walls and the roofs of the housing units, and the effects of the blast damaged at least one of the CHUs (though the extent of the damage is not given). (2) The statements appear to indicate no one sustained any overpressure injuries (i.e. lung or eardrum ruptures, or auditory shift), or ballistic or crush wounds from shrapnel or flying/falling debris. 4. The criteria of this award includes the requirement the recipient be personally present and actively engaging or being engaged by the enemy. Additionally, when explosive devices are involved, there must have been a reasonable risk of injury by the blast, detonation, or explosion. a. The applicant asserts he was within the "kill-radius" when the mortar round exploded. This argument assumes, however, an explosion has occurred in an open area, where there is no protection or blast mitigation. The applicant, however, was inside a structure that afforded him relative protection, and the HESCO barriers that surrounded his CHU further protected this structure. The preponderance of the evidence suggests the both the CHU and the HESCO barriers did their job, and, as a result, the reasonable risk of injury was significantly reduced. b. He further contends he could have been killed or injured by flying debris or falling furniture/equipment within his CHU. While the possibility certainly existed for crush injuries resulting from flying debris or collapsing furniture, the lack of such injuries appears to indicate the relative risk and likelihood of such injury was low. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013928 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013928 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2