BOARD DATE: 23 May 2018 DOCKET NUMBER: AR20160010989 BOARD VOTE: _____x____ __x_____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 23 May 2018 DOCKET NUMBER: AR20160010989 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * awarding him the Combat Action Badge for action on 2 February 2004 at Baghdad, Iraq * adding the Combat Action Badge to his DD Form 214 _____________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: 23 May 2018 DOCKET NUMBER: AR20160010989 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 (CAB). 2. The applicant states he was impacted by enemy mortar fire multiple times during his combat tour in Iraq and he received medical treatment for injuries he sustained during these attacks. He disagrees with the U.S. Army Human Resources Command (HRC) decision denying him the CAB. While the HRC Command Surgeon could not locate (electronic) medical records to support his medical treatment, he has evidence he received medical treatment. Other members of his unit were awarded the CAB for the same incidents. He does not know why he did not receive the CAB with other members of his unit as his name was on the award recommendation. He concludes by stating someone must have records of his unit and the Soldiers he served with who received the CAB. 3. The applicant provides – * 79th Quartermaster Company personnel roster * Headquarters, Department of the Army (HQDA) mobilization amendment order * Standard Form (SF) 600 (Chronological Record of Medical Care) dated 20 February 2004 * DA Form 2173 (Statement of Medical Examination and Duty Status) dated 7 March 2004 * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 1 May 2004 * Memorandum for Record (MFR) by Lieutenant Colonel (LTC) M. Curt H., dated 21 February 2006 * DA Form 2823 (Sworn Statement) by Sergeant First Class (SFC) Gene C.B., dated 21 November 2006 * MFR by Second Lieutenant (2LT) Stephen M.D., dated 7 March 2007 * DA Form 2823 by 2LT Stephen M.D. dated 7 March 2007 * DA Form 4187 (Personnel Action), request for CAB (Applicant), dated 13 March 2007 * DA Form 4187, request for CAB (Sergeant (SGT) Jesse E.I.) * emails dated 8 August 2012; Subject: CAB * HRC Awards and Decoration Branch CAB instructions dated 17 December 2015 * HRC Awards and Decoration Branch CAB denial letters dated a 7 March 2016 and 13 April 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. With prior service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) for a troop program unit. On 12 February 2003, he was ordered to active duty in support of Operation Enduring Freedom. His unit of assignment was the 79th Quartermaster Company, USAR from Marion, OH. His military occupational specialties were 76W (Water Treatment Specialist) and 82C (Field Artillery Surveyor). 3. Orders 078-716 issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, KY reassigned and deployed the 79th Quartermaster Company to United States Central Command. 4. On 1 May 2004 the applicant was released from active duty due to completion of required active service. He was issued a DD Form 214. Item 18 (Remarks) shows he served in Iraq from 25 March 2003 to 26 March 2004. 5. The applicant provides the following evidence: a. a SF 600, dated 20 February 2004, showing he was treated for hearing loss and ear pain after a mortar blast on 2 February 2004. The treating medical officer stated, "Subjective hearing loss 2 [degrees] explosions." He was provided pain medication and advised to have his hearing tested upon redeployment. b. a DA Form 2173 shows on 2 February 2004 at Logistics Base Seitz in Baghdad, Iraq the applicant was injured. He sought medical treatment on 20 February 2004. It was determined a permanent partial disability may result from his injury. The official stated, "Patient was near mortar blast." He had subjective hearing loss. The commanding officer indicated the injury was in the line of duty, dated and signed the form on 7 March 2004. c. a MFR, dated 21 February 2006, signed by LTC M. Curt H. shows the applicant's company was assigned to the 541st Combat Support Battalion with duty at Camp Victory, Iraq. The unit then moved to Logistics Base Seitz outside of Baghdad International Airport near the city of Abu Gharib. The unit performed security for the base manning entry control points, towers and guard duty. He states, "On three occasions this unit and those assigned from 18-26 January 2004 came under direct mortar fire from the city of Abu Gharib." He was the battalion commander during the applicant's deployment. (1) On 18 January 2004 at approximately 1635 hours the base was attacked with seven 60mm high explosive mortar rounds. He provides the specific coordinates where each round impacted the base including the vicinity of the 79th Quartermaster Company barracks. He reports there were casualties. (2) On 26 January 2004 at approximately 1540 hours the base was attacked with 12 60mm mortar rounds. All mortar rounds impacted inside the perimeter of the base with five mortar rounds impacting the direct vicinity of the 79th Quartermaster Company barracks and 2 impacting in their motor pool area. He again reports there were casualties. (3) On 28 January 2004 at approximately 0652 hours the front gate of the base was targeted with five high explosive mortar rounds. (4) He concludes, "Many assigned to the 79th [Quartermaster Company] were within distances closer than those prescribed in the guidelines established for the CAB…" d. on 21 November 2006, SFC Gene C.B. prepared a sworn statement wherein he states he was the unit platoon sergeant on 26 January 2004 when the base was impacted by 12 incoming mortar rounds from Abu Gharib. Unit members were conducting tasks throughout the base including manning the entry control point and north towers, working in the container storage area and motor pool. At about 1540 hours a round hit in the container yard "about 10 meters away from the west most container" and the 45 Soldiers who were working in the area took cover. A second round hit south of their headquarters building and unit barracks. Within his statement he provides the names of unit members who were between 8 to 30 meters from a mortar round impact. The applicant and SGT Jessie E.I.Jr., are identified in this report. e. a MFR, dated 7 March 2007, signed by 2LT Stephen M.D. requests the Combat Action Badge for members of his unit. He states during the period from 1 January 2004 through 15 March 2004 the unit was assigned to Logistics Base Seitz which was the target of multiple enemy mortar attacks. On 28 January 2004 at approximately 0652 hours, mortars impacted at the entry control point. Rounds landed within 50 meters of a group of unit Soldiers. Soldiers who were injured from the blast received the Purple Heart. His MFR does not contain the applicant's name. f. on 7 March 2007, 2LT Stephen M.D. prepared a sworn statement wherein he stated the applicant was assigned to Logistics Base Seitz and was in the vicinity of mortar attacks warranting award of the CAB. He states the base was attacked by enemy mortar rounds as follows: (1) on 18 January 2004 at approximately 1635 hours the base was attacked with seven 60mm high explosive mortar rounds. He provides the specific coordinates where each round impacted the base including the vicinity of the 79th Quartermaster Company barracks. (2) on 26 January 2004 at approximately 1540 hours the base was attacked with 12 60mm mortar rounds. All mortar rounds impacted inside the perimeter of the base with five mortar rounds impacting the direct vicinity of the 79th Quartermaster Company barracks and 2 impacting in their motor pool area. (3) on 28 January 2004 at approximately 0652 hours the front gate of the base was targeted with five high explosive mortar rounds with rounds landing within 100 feet of the front gate. g. on 13 March 2007, 2LT Stephen M.D. signed a DA Form 4187 identifying the applicant by name and requesting he receive the CAB. The dates of attack noted in this recommendation were 18 January, 26 January and 28 January 2004. (He restates the information noted in his MFR discussed above.) h. a DA Form 4187 requesting the CAB for SGT Jesse E.I. based on incoming mortar rounds at Logistics Base Seitz on 26 January 2004. i. by letter, dated 17 December 2015, HRC informed the applicant he had to provide additional evidence before they could review his request for the CAB. The guidance in this letter required the specific date the applicant was impacted by a mortar attack and his vicinity to the impacted rounds. j. by letter, dated 7 March 2016, his request for the CAB was denied by HRC. The letter states the applicant's request and supporting evidence did not meet the basic requirements for the CAB. The official stated, "…you provided details that there was a secondary attack on a different date at which time you suffered an injury. Verification of this information would support your claim for award of the Combat Action Badge, but coordination with our Command Surgeon found no documentation in your medical records to support your claim." l. by letter, dated 13 April 2016, an HRC official informed him he could appeal to the ABCMR. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) states the CAB was approved on 2 May 2005. Requirements for award of the CAB are branch and military occupational specialty 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. The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. The 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. Award of the CAB is authorized from 18 September 2001 to a date to be determined. Only one Combat Action Badge may be awarded during a qualifying period. [This regulation does not list requirements for the proximate vicinity to enemy mortar rounds a Soldier must be for award of the CAB.] 2. 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 pursuant to Title 10, U.S. Code, section 1552. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. In May 2005, the CAB was established with a retroactive award period starting on 18 September 2001. The applicant served in Iraq from 25 March 2003 to 26 March 2004. 2. In 2006 and 2007, the applicant's former platoon sergeant and battalion commander prepared sworn statements supporting award recommendations for the CAB for members of the company impacted by enemy mortar rounds at Logistics Base Seitz. The specific dates of mortar impacts noted in their statements were 18 January, 26 January and 28 January 2004. 3. The approval authority at HRC denied the applicant the CAB in 2016 because they could not verify through their Command Surgeon that the applicant sought medical treatment for injuries incurred during an enemy mortar attack. The applicant provided evidence from his medical record showing he sought medical treatment for ear pain on 20 February 2004. Within his medical treatment record, he states he was injured during an enemy mortar attack at Logistics Base Seitz on 2 February 2004. This information was recorded by a medical officer. His diagnosis was probable hearing loss and he was prescribed medication for the pain. 4. There appears to be four known dates when the applicant was in the vicinity of enemy mortar rounds. His February 2004 medical record is the first document to support he was directly impacted by mortar rounds on 2 February 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) AR20160010989 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010989 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2