ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20160017475 APPLICANT REQUESTS: reversal of the decision by the Awards and Decorations Branch at the U.S. Army Human Resources Command (HRC) to deny him award of the Combat Action Badge (CAB). He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Officer Record Brief (ORB) * PERSTEMPO History Listing * Temporary Change of Station (TCS) Orders * DA Form 67-9 (Officer Evaluation Report) * DA Form 2823 (Sworn Statements) * DA Form 4187 (Personnel Action) * Self-Authored CAB Narrative * HRC Memorandum – Returned without Action * Request to HRC for Reconsideration with Supporting Documents * HRC Memorandum – Request Denied FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is appealing to the HRC Board because he believes the request for the award of the Combat Action Badge was denied in error by HRC on a misreading and misinterpretation of Army Regulation (AR) 600-8-22 (Military Awards). The applicant would like a personal appearance before the Board. He argues that: a. HRC informed him the CAB was denied because he was not personally present and actively engaging or being engaged by the enemy, and could have been reasonably injured by the blast, detonation, explosion, or round. HRC is wholly wrong and unjust in their decision and he should be awarded the CAB. He believes he meets all the requirements set forth in AR 600-8-22 and the documentation provided to HRC clearly demonstrated that he was personally present, engaged by the enemy, he could have reasonably been injured, and performed satisfactorily in accordance with the Rules of Engagement. b. HRC had previously approved the packet with one exception on 3 September 2013 as a result of one sworn statement not having two witnesses, and was now denying the request on completely different grounds not previously addressed in 2013. The packet was subjected to heavy scrutiny by the Company Commander, U.S. Army Intelligence & Security Command (INSCOM) G-1, and the Brigadier General prior to sending to HRC and the information was found to be credible and aligned the requirements set forth in AR 600-8-22. 3. The applicant provides: a. His Officer Record Brief noted an assignment in Tallil, Iraq on 14 July 2006. b. A PERSTEMPO individual event history listed “war” dates with a start date of 23 August 2006 to 8 November 2007. c. TCS Orders dated 7 June 2006 assigning him to Southwest Asia, Kuwait, with an effective date of 22 August 2006. d. His OER for the rating period 2 June 2007 through 30 April 2008 capturing comments from the rater on his time deployed. e. A sworn statement which was not witnessed from X, dated 22 April 2013, stated he served with the applicant in support of Operation Iraqi Freedom from 20 June 2006 through November 2007. He provided accounts of several attacks. * On 12 October 2006, a rocket landed very close to their office and the blast caused most objects to fall off the wall and the applicant shared with him that he was pushed forward in his chair * On 13 October 2006, on a helicopter trip from Balad to Baghdad, they were fired upon and notified the door gunner * On their trips to provide legal assistance to remote areas, they were required to stay at a logistics base operated by the Mongolians and Polish troops which was attacked almost daily f. His self-authored sworn statement with his justification for a CAB. (1) On the week of 1 April 2013, a legal review for a Soldier’s request for a CAB inspired him to submit his own application. He had not previously submitted since he had only seen Soldiers killed in combat awarded the CAB and did not feel worthy. (2) During his time deployed with the 82nd Airborne Division, he was required to assist his subordinate commands scattered throughout Iraq. In the 15 months in theater, he traveled to Balad, Taji, Baghdad, Karbala, An Najaf, Ad Diwanyia (Camp Echo), Al Kut, (Camp Delta), and CSC Scania. (3) On 13 October 2006, their takeoff was delayed in Balad when they were hit by a small arms attack and mortars approximately 1000 meters from the runway. They received fire again about 20-30 minutes after takeoff and nearly 3 months later he found out a helicopter was shot down in the same vicinity and all 12 passengers killed. (4) On the night of 13 October 2006, after the incident on the runway, the Baghdad International Airport was hit again with small arms and he was located in transient tents about 350 meters from the gunfire. The airport was hit again the night of 14 October 2006 from about 2245 to 0300 and tracers were seen throughout the night lighting up the sky. The impact could be felt and came as close as within 350 feet from the tent. Insurgent attacks and sirens could be heard the following night as well on the night of 15 October 2006. (5) During his 15 months deployed, the forward operating base was hit with rockets over 30 times and the impact is more profound than a standard mortar. One of the most significant attacks was during his meeting with a lieutenant colonel on 12 October 2006, when the 122 mm rocket fell approximately 100 years behind the building and the blast snapped his neck forward and sent the lieutenant colonel running for cover under a desk. They were hit several more times by rockets causing pictures on walls to come crashing down and the buildings to shake. (6) On 22 January 2006, he hitched a ride on a convoy trip with 1-34 Brigade Combat Team from Anaconda to Camp Adder. Upon leaving one of the gates an improvised explosive device went off about 140 meters in front of the convoy. There were no injuries. (7) They were frequently attacked during their travels to assist troopers from Camp Echo to Diwanyia, a hot bed for terrorists, and during one night a mortar landed about 100 feet from the bunker they were in. g. A sworn statement from X dated 2 July 2013, indicating that he returned to the office after the 122 mm rocket attack on 12 October 2006 and witnessed personnel examining the crater located less than 100m from the building. He walked in the office and the applicant shared with him that he was there advising a client when the building was hit, knocking pictures to the ground, breaking a window, and causing a substantial amount of force. Over 30 rocket attacks occurred over the course of the deployment. h. A Personnel Action (DA Form 4187) for the CAB was submitted on 2 July 2013 and received approval recommendation from Major General X, the INSCOM Commander, on 16 August 2013 with a forwarding address to HRC for a decision. i. A self-authored narrative dated 2 July 2013 accompanied the DA Form 4187 with details of the 12 October 2006 event which took place near his office while advising a client. j. A memorandum from HRC, dated 3 September 2013, stating the application was incomplete because the DA Form 2823 submitted had not been properly administered and must contain witness endorsements. k. A memorandum from INSCOM to the applicant, dated 3 September 2013 requesting the applicant provide the additional information required by HRC to proceed with the application request. l. A sworn statement from X dated, 26 May 2016 with the same statement as his prior sworn statement on 22 April 2013, but with proper administration and witness endorsements. m. A memorandum from the applicant to HRC explaining the time gap for resubmittal and providing the previously requested sworn statement with proper administration and witness endorsements. n. A memorandum from the Assistant Chief of Staff, G-1, of INSCOM, dated 7 July 2016, accompanied the applicant’s personnel action request recommending the award of the CAB. o. The request for the CAB was disapproved in a memorandum from HRC to the INSCOM Commander dated 24 October 2016. 4. A review of the applicant’s service record shows: a. He was appointed as commissioned officer in the Regular Army and executed an oath of office on 31 May 2005. b. He served in Iraq from 14 July 2006 to 8 November 2007 and in Japan from May 2008 to 11 July 2012. c. He was awarded the Meritorious Service Medal on 16 April 2007 for meritorious service in support of Operation Iraqi Freedom from 9 August 2006 to 4 August 2007. d. On 24 October 2016, the Awards and Decorations Branch at HRC disapproved his request for award of the CAB for service performed in support of Operation Iraqi Freedom. A Soldier must be personally present and actively engaging or being engaged by the enemy, and could have been reasonably injured by the blast, detonation, explosion, or round. The applicant’s request does not meet the aforementioned basic requirement for award of the CAB under the provisions of AR 600-8-22, paragraph 8-8. e. He was honorably released from active duty on 10 January 2017. His DD Form 214 shows he completed 8 years, 4 months, and 7 days of active service. It also shows he was awarded or authorized: * Meritorious Service Medal (3rd Award) * Army Commendation Medal (3rd Award) * Army Achievement Medal * Meritorious Unit Commendation Medal * Army Reserve Component Achievement Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with Campaign Star * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Armed Forces Reserve Medal with M Device * Parachutist Badge * Air Assault Badge 5. By regulation, a. The Combat Action Badge provides special recognition to Soldiers who personally engaged, or are engaged by the enemy. The requirements for award of the Combat Action Badge are branch and MOS (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 Combat Action Badge. b. An applicant is not entitled to a hearing before the Army Board for Correction of Military Records (ABCMR). Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could make a fair and equitable decision without a personal appearance from the applicant. Additionally, the Board also determined that relief was not warranted. The Board determined that there was insufficient evidence to show that the applicant met the standard for the CAB. Based upon the 2016 HRC decision and no new evidence presented by the applicant to show the error or injustice in that decision, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-8-22 (Military Awards) states the Combat Action Badge provides special recognition to Soldiers who personally engaged, or are engaged by the enemy. The requirements for award of the Combat Action Badge are branch and MOS (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 Combat Action Badge. Award of the Combat Action Badge is authorized for the following operations: * Afghanistan (Operation Enduring Freedom, 18 September 2001 to 31 December 2014; OFS, 1 January 2015 to a date to be determined) * Iraq (Operation Iraqi Freedom, 19 March 2003 to 31 August 2010; Operation New Dawn, 1 September 2010 to 31 December 2011) * Operation Inherent Resolve, 15 June 2014 to a date to be determined 3. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20160017475 6 1