BOARD DATE: 13 June 2018 DOCKET NUMBER: AR20160009899 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF _____x___ ____x____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 June 2018 DOCKET NUMBER: AR20160009899 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Army Good Conduct Medal (2nd award) for the period 19 August 2001 to 18 August 2004 and adding the Army Good Conduct Medal to his DD Form 214. 2. 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 award of the Combat Action Badge. ______________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: 13 June 2018 DOCKET NUMBER: AR20160009899 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 award of the Combat Action Badge and a second Army Good Conduct Medal. 2. The applicant states: a. Both he and another Soldier were in the same proximity to a mortar attack. The other Soldier received the Combat Action Badge, but he did not. b. He received an Army Good Conduct Medal in August 2001 and after that served an additional 4 years with his conduct above reproach. He believes that he meets all of the requirements for a second Army Good Conduct Medal. 3. The applicant provides – * four Army Achievement Medal Certificates and an Army Commendation Medal Certificate * letter of recommendation * four DA Forms 2166 (Noncommissioned Officer (NCO) Evaluation Report) (NCOER) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * nine pages of a request to U.S. Army Human Resources Command (HRC) for the Combat Action Badge * HRC denial of the Combat Action Badge 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. On 19 August 1998, the applicant enlisted in the Regular Army. He completed training, including basic airborne training, and was awarded the military occupational specialty (MOS) 13R1P (Field Artillery Firefinder Radar Operator – parachute qualified). 3. On 30 October 2000 he completed the Utility Equipment Repairer Course (MOS 52C), and on 20 February 2002 he completed the Electronic Warfare/Intercept Systems Repairer Course (MOS 33W). 4. On 6 August 2001, the applicant was awarded the Army Good Conduct Medal for the period 19 August 1998 to 18 August 2001. 5. NCOERs covering the period February 2002 through January 2005 show he was rated as among the best and was recommended to be promoted ahead of his peers. 6. On 19 March 2005, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement). He had completed 6 years, 7 months, and 1 day of net active service. His DD Form 214 lists his awards as – * Army Commendation Medal * Army Achievement Medal (5th Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Humanitarian Service Medal * Noncommissioned Officer Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Senior Parachutist Badge * Military Free Fall Jumpmaster Badge * Driver and Mechanic Badge with Driver-"W" Bar * Bronze German Armed Forces Parachutist Badge * Venezuelan Parachutist Badge 7. On 9 August 2016, HRC denied the applicant's request for award of the CAB. HRC noted Army Regulation 600-8-22 (Military Awards), paragraph 8-8c(3), states a Soldier must be personally present and actively engaging or being engaged by the enemy. HRC further noted that Military Personnel (MILPER) Message 11-268, table 8-1, step 5, note 3, requires that the Soldier could have been reasonably at risk for injury by the blast, detonation, or explosion. HRC noted, "The witness statements provided in support of your request verify mortar rounds impacted outside of the compound and a rocket-propelled grenade exploded over the compound. In this regard, this incident does not meet the basic requirement for the award of the Combat Action Badge." 8. The witness statements provided in concert with the HRC request are identical except for the personal information. All three statements and the applicant's own statements indicate that two mortar rounds landed outside the compound perimeter and one rocket-propelled grenade exploded overhead. None of the statements give any estimate of the distance from the blast or indicate that some other Soldier was injured in the attack. 9. The applicant's record contains no derogatory entries, disciplinary actions, nonjudicial punishments, or court-martials that would suggest he was considered ineligible for award of the Army Good Conduct Medal (2nd Award). REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) states the: a. Army Good Conduct Medal is awarded to those individuals who distinguish themselves by their conduct, efficiency and fidelity during a 3-year period of service. Although there is no automatic entitlement to the Army Good Conduct Medal disqualification must be justified. Any case of unfavorable consideration requires the immediate commander to notify the individual of the rationale for the decision and permits the member to respond. This action is to be filed in the Soldier's official military personnel file. Current practice requires that the commander provide written notice of nonfavorable consideration and permits the individual to respond. b. Award of the Combat Action Badge (CAB) is branch and MOS immaterial. 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 CAB. However, it is not intended to award the CAB to all Soldiers who serve in a combat zone or imminent danger area. Eligibility requirements include: (1) May be awarded to any Soldier. (2) Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. (3) 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. (4) Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge and/or Combat Medical Badge. 2. MILPER Message 11-268 (Approved Changes to AR 600-8-22, Military Awards, issued 2 September 2011), table 8-1 (Steps for Processing Award of Combat Badges), step 5, 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. Note 3 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.” DISCUSSION: 1. HRC denied the applicant’s request for award of the Combat Action Badge on the basis that the mortar rounds that exploded outside of the compound and the rocket-propelled grenade that exploded overhead did not meet the criteria for the badge. The available evidence does not clearly define the applicant’s proximity to any explosions. As such, the degree to which he was personally engaged by the enemy is unclear. The criteria for the Combat Action Badge require a Soldier to be personally present and actively engaging or being engaged by the enemy, not merely in the general area where an explosion occurs. 2. During the three year period following the applicant's award of his first Army Good Conduct Medal effective 18 August 2001, he received multiple Army Achievement Medals, the Army Commendation Medal, was rated as among the best on his NCOERs, and was promoted to staff sergeant. There is no evidence in the available records that presents a barrier to awarding him the Army Good Conduct Medal (2nd Award) for the period 19 August 2001 to 18 August 2004. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009899 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009899 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2