ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20180014208 APPLICANT REQUESTS: award of the Combat Action Badge (CAB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 10 August 2018 * Headquarters, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), Orders 12-153-00028, dated 1 June 2012 * Camp Atterbury Orders CA-264-0010, dated 20 September 2012 * DA Form 67-9 (Officer Evaluation Report) for the period 25 July 2012 through 1 April 2013 * Camp Atterbury Joint Maneuver Training Center Orders 100-1001, dated 10 April 2013 * U.S. Army Human Resources Command Permanent Order 078-05, dated 19 March 2015 * letter, University of Massachusetts Lowell Libraries, dated 24 July 2016 * Memorandum for Record, 304th Civil Affairs Brigade, dated 25 September 2016, subject: Justification for Delayed Combat Award * DA Form 2823 (Sworn Statement), dated 15 October 2016 * Memorandum for Record, 304th Civil Affairs Brigade, dated 15 October 2016 * Self-authored Memorandum for Record, 404th Civil Affairs Battalion (Airborne), dated 29 October 2016, subject: Narrative of Indirect Fire Attack on 11 November 2012 * memorandum, 404th Civil Affairs Battalion (Airborne), undated, subject: Proposed Citation to Accompany [Applicant's] CAB * DA Form 2823, dated 30 October 2016 * Memorandum for Record, 304th Civil Affairs Brigade S-3, dated 6 June 2017, subject: Enemy Rocket Attack on Forward Operation Base (FOB) Salerno, Khost, Afghanistan, from 11 November 2012 * DA Form 4037-E (Officer Record Brief), dated 3 August 2017 * DA Form 4187 (Personnel Action), dated 13 August 2017 * memorandum, HRC, dated 12 April 2018, subject: Request for Award of the CAB for [Applicant] * Self-authored Memorandum for Record, Asymmetric Warfare Group, dated 8 August 2018, subject: Incident Report of Indirect Fire at FOB Salerno, Afghanistan on November 11, 2012 * DA Form 214 (Certificate of Release or Discharge from Active Duty) 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 (ABCMR) 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 desire to appear before the Board in Washington, D.C. 3. The applicant states: a. His request for approval for award of the CAB for his service in Afghanistan was denied by his chain of command at the 353rd Civil Affairs Command. He wants the ABCMR to rectify the injustice by an impartial review of the supporting documents. b. His chain of command stated in the HRC Memorandum of Disapproval on 12 April 2018 that, "The witness statements do not provide clear evidence of the [Applicant] being personally engaged by the enemy in accordance with Army Regulation 600-8-22 (Military Awards), paragraph 8-8c." He highly disagrees with this statement. His witness statements, as well as other documentation, confirm his belief. c. Army Regulation 600-8-22, paragraph 8-8c (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." The documentation presented with his DA Form 4187 to the 353rd Civil Affairs Command confirms this. 4. The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 26 September 2009. 5. On 25 July 2012, he was ordered to active duty in support of Operation Enduring Freedom. 6. On 28 April 2013, the applicant was honorably released from active duty. His DD Form 214 shows in: a. block 8a (Last Duty Assignment and Major Command) – 450th Civil Affairs Battalion, Detachment 9. b. block 11 (Primary Specialty) – (1) Area of Concentration 38A (Civil Affairs) – Active Army/ United States Army Reserve – 1 year and 2 months and (2) Area of Concentration 19A (Armor, General) – 2 years and 2 months. c. block 13 (Decorations, Medal, Badges, Citations and Campaign Ribbons Awarded or Authorized) – * Afghanistan Campaign Medal with one bronze service star * Army Commendation Medal * Army Achievement Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Armed Forces Reserve Medal with "M" Device * North Atlantic Treaty Organization Medal d. block 18 (Remarks) – he served in a designated imminent danger pay area in Afghanistan//Kuwait from 20120921 to 20130408. 7. He provided copies of: a. his DA Form 67-9 for the period 25 July 2012 through 1 April 2013, that shows he was the Civil Affairs Team Chief, PRT Khost, FOB Salerno, during the period; b. HRC Permanent Order 078-05, dated 19 March 2015, which shows, in part, PRT Khost was awarded the Meritorious Unit Commendation for the period 21 October 2012 to 16 April 2013; c. a letter from the Program and Project Coordinator, University of Massachusetts Lowell Libraries, dated 24 July 2016, that corroborate certain events connected to an attack on the FOB Salerno in Khost, Afghanistan, where he was posted as a field development officer for the U.S. Army Agency for International Development during 2012 and 2013. He stated that on 11 November 2012, in the afternoon around 1500 hours, FOB Salerno received a rocket hit which impacted an area approximately 60 or 70 meters away from the Base Post Exchange where he was shopping inside at the time. After the all clear was given, he walked outside to see if he could see any damage and he saw the applicant also standing outside at a short distance away from him. He also saw colleague, Major X____ X___, also walking ahead of him in the big open area near the large base gym. While he did not converse with the applicant or Major X___X___ at that time, he can confirm that they were nearer to the explosion site area that he was. d. a Memorandum for Record from Major X____ X__, dated 25 September 2016, who provided a justification for the delayed submission for a combat award for the applicant and himself. He stated the Provincial Reconstruction Team's previous submission for combat awards was delayed due to retrograde, movement timelines, availability of computer systems needed for combat award theater submittal and approval were not available. Guidance, at the time, was to resubmit. Upon redeployment to Camp Atterbury, Indiana, the Provincial Reconstruction Team (PRT) Khost demobilized. The understanding was combat awards could no longer be submitted and all efforts to submit this combat badge were stopped. e. a DA Form 2823 from Lieutenant Colonel (LTC) X____ X. X____ (former Major X____X____), dated 15 October 2016, in which he stated that while assigned to PRT Khost during Operation Enduring Freedom, the applicant was engaged by indirect rocket fire on 11 November 2012 at approximately 1500 hours while at FOB Salerno. Upon hearing the sound of an incoming rocket, he immediately took cover and sheltered in place until the "All Clear" was sounded. He further stated, "It was reasonable that [the applicant] could have been injured during the attack and performed his duties satisfactorily in accordance with established rules of engagement. He was approximately 30 meters away from the applicant on FOB Salerno during the attack and he was knowledgeable of the applicant's presence and response to the attack. f. a self-authored Memorandum for Record from LTC X____ X. X____, dated 15 October 2016, in which he stated on 11 November 2012, in Khost Province, Afghanistan, his Civil Affairs Detachment was assigned as part of the PRT Khost and headquartered at FOB Salerno under the 3rd Battalion, 101st Brigade Combat Team. (1) Immediately prior to the attack, he was at the open-air gym conducting physical fitness. In between sets, he was the applicant passing through on his way to the Post Exchange and chapel area. As the applicant walked away, at approximately 1500 hours, the FOB was attacked by indirect rocket fire. (2) The attack was sudden and required immediate action to ensure safety of personnel and determine follow-on actions. The sound of the rocket approaching was very close. As they heard it screaming in, they dropped to the ground in the prone position and then felt the ground shake as the explosion destroyed some of the barracks huts less than 50 meters away from the south of their position. g. a self-authored Memorandum for Record, dated 29 October 2016, subject: Narrative of Indirect Fire Attack on 11 November 2012, in which he states at approximately 1500 hours on 11 November 2012, he heard the approach of a rocket and he dropped to the ground. He heard an extremely large explosion to his left, and he saw a plume of smoke rising from a row of barrack huts. At that point, he took shelter inside a reinforced bunker in the courtyard outside the Post Exchange, coffee shop, and embroidery shop. After receiving the "All Clear," he returned to the PRT Headquarters to get accountability of personnel. h. an unsigned and undated memorandum from the 404th Civil Affairs Battalion (AIRBORNE), subject: Proposed Citation to Accompany [Applicant's] CAB, that stated, "This is to acknowledge that [Applicant] has been awarded the United States Army Combat Action Badge for having been personally present and under direct hostile enemy fire while serving with Provincial Reconstruction Team Khost in Direct Support of Operation Enduring Freedom while at Forward Operating Base Salerno on 11 November 2012." i. a self-authored DA Form 2823, dated 30 October 2016, in which he verified that on 11 November 2012 while assigned to PRT Khost during Operation Enduring Freedom, Major X____X____ was engaged by indirect rocket fire at approximately 1500 hours while in the gymnasium at FOB Salerno, Khost Province, Afghanistan. j. a Memorandum for Record from the 304th Civil Affairs Brigade S-3, LTC X____ X____, dated 6 June 2017, subject: Enemy Rocket Attack on FOB Salerno, Khost, Afghanistan, from 11 November 2012, in which he stated review of a classified system accurately documented an enemy rocket attack on the FOB Salerno on 11 November 2012. k. his DA Form 4037-E, dated 3 August 2017, that shows in item IX (Assignment History), he served in PRT Khost, Afghanistan, as a Civil Affairs Plans Officer for a period of 9 months. l. his DA Form 4187, dated 13 August 2017, that shows he was recommended for award of the CAB for the incident on 11 November 2012 at the FOB Salerno, Khost Province, Afghanistan. m. a memorandum from the Chief, Soldier Programs and Services Division, HRC, dated 12 April 2018, that shows the request for award of the CAB for the applicant was disapproved. This office concurred with the applicant's current chain of command that the 11 November 2012 incident did not meet the statutory guidance for the award of the CAB and the witness statements did not provide clear evidence of the risk of the applicant being personally engaged by the enemy in accordance with Army Regulation 600-8-22, paragraph 8-8c. The applicant was advised of his appeal rights to the ABCMR. n. a self-authored Memorandum for Record, dated 8 August 2018, subject: Incident Report of Indirect Fire at FOB Salerno, Afghanistan on November 11, 2012, in which he stated a classified system and LTC X____X___'s statement confirmed a 122 millimeter rocket attack on FOB Salerno, Khost, Afghanistan on 11 November 2012. LTC X____ X___'s statement was also included in his CAB submission. ? BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, and evidence in the records. The Board noted that the criteria for award of the CAB require a Soldier to be personally present and actively engaging or being engaged by the enemy. The Board concurred with HRC's decision, agreeing that the available records do not provide clear evidence of the applicant actively engaging or being personally engaged by the enemy in accordance with the regulatory criteria. By a preponderance of the evidence, the Board determined there is no error or injustice in the decision to deny award of the CAB to the applicant. 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. ADMINISTRATIVE NOTE(S): The applicant was assigned to PRT Khost, Afghanistan, during the period the unit was awarded the Meritorious Unit Commendation. This award will be added to his DD Form 214. 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 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 600-8-22, in effect at the time, prescribed Army policy, criteria, and administrative instructions concerning individual and unit military awards. Instructions stated the 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. Paragraph 8-8 stated specific eligibility requirements include: a. May be awarded to any Soldier. b. Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. c. 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. d. Soldier must be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge/Combat Medical Badge. For example, an 11B (Infantryman) assigned to Corps staff is eligible for award of the CAB. However, an 11B assigned to an infantry battalion is not eligible for award of the CAB. e. In addition to Army Soldiers, the CAB may also be awarded to members of other U.S. Armed Forces and foreign military personnel assigned to a U.S. Army unit, provided they meet the above criteria. f. Award of the CAB is authorized from 18 September 2001 to a date to be determined. Award for qualifying service in any previous conflict is not authorized. g. Second and subsequent awards of the CAB are as follows: (1) Only one CAB may be awarded during a qualifying period. (2) Second and subsequent award of the CAB will be indicated by super- imposing one and two stars respectively, centered at the top of the badge between the points of the oak wreath. h. Retroactive awards of the CAB are not authorized prior to 18 September 2001 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014208 6 1