BOARD DATE: 30 July 2020 DOCKET NUMBER: AR20190013822 APPLICANT REQUESTS: through counsel, award of the Combat Action Badge (CAB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders 103-636, dated 13 April 2009 * Memorandum for Record (MFR), dated 25 October 2016 * MFR, Applicant Narrative, dated 7 April 2017 * MFR (Sergeant (SGT) M_____), dated 7 April 2017 * MFR, Applicant Awards Board Proposal, dated 7 April 2017 * DA Form 2823 (Sworn Statement), dated 15 May 2017 * DA Form 2823, dated 17 May 2017 * DA Form 4187 (Personnel Action), dated 20 March 2018 * Letter of Lateness, 7 April 2018 * Letter of Lateness, 2 August 2018 * CAB Recommendation of Approval, dated 18 January 2019 * Undated Memorandum, U.S. Army Human Resources Command (AHRC) * Permanent Order 289-006, dated 16 October 2018 * Letter of Support, dated 10 October 2019 * Enlisted Record Brief FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, in section 1552(b); however, the 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 applicant is currently serving in the Regular Army. 3. Counsel states, in effect, the applicant deployed to Iraq in 2009, in support of Operation Iraqi Freedom (OIF). An improvised explosive device (IED) struck his convoy on 20 November 2009. The first and third vehicles were struck by shrapnel and in response, the applicant dismounted his vehicle, which was in-between those struck by the blast, and immediately worked to secure the area and identify the triggerman of the attack. The applicant coordinated with his team to call for the battalion Quick Reaction Force (QRF) and Explosive Ordnance Disposal (EOD), he also gave chase to the IED triggerman. Notably, other members of the applicant's unit were awarded the CAB for the incident. The evidence demonstrates the applicant personally came under hostile fire while deployed in support of OIF in 2009, which satisfies the eligibility requirements for the CAB. 4. On 3 March 2018, the applicant requested retroactive award of the CAB for being personally engaged by the enemy. On 9 November 2009, [this is in error as all evidence and sworn statements list 20 November 2009 as the date of action] while conducting convoy operations from forward operating base Basra to Camp Wessam, Iraq, his convoy was attacked with an IED. All levels of command up to the Commanding General, Headquarters, 1st Special Forces Command (Airborne) recommended approval. 5. The applicant provides an undated memorandum from the Chief, Soldier Programs and Services Division, AHRC, which disapproved his request for award of the CAB. The memorandum stated the CAB may be approved for both direct and indirect engagement; however, in the case of indirect engagement, a Soldier's individual actions, their proximity to the activity and the risk to life (with associated severity) are all considerations that are taken into account when deciding whether to approve and award the CAB. While retroactive awards may be submitted to AHRC for processing, such awards will not be made except where evidence of injustice is presented, as stipulated in Army Regulation 600-8-22 (Military Awards), paragraph 8-8f(2). The documentation provided did not provide clear evidence to support retroactively awarding the CAB. 6. The applicant provides: a. A self-authored MFR dated 7 April 2017, as the proposed narrative to an awards board. In the narrative, the applicant states, in effect, his team immediately identified the direction and distance of the potential triggerman. The triggerman was located across a dumpsite and a river parallel to the road where the IED hit the convoy. EOD arrived and cleared the site for the convoy to follow through. His actions under an enemy triggered IED allowed the mission to continue with no casualties. b. A sworn statement dated 17 May 2017, in which he states: (1) He was serving as an infantry team leader for 1st Battalion, 377th Field Artillery Regiment (Air Assault) on or about 20 November 2009, when an IED hit his convoy. The IED hit the High Mobility Multipurpose Wheeled Vehicle (HMWWV) behind him. He dismounted as a security element. The IED dispersed shrapnel all over the first and third vehicles. (2) Immediately after the IED hit the HMWWV, he dismounted from the back of the Mine-Resistant Ambush Protected (MRAP) vehicle and performed 5-25 meter security sweep. He and his team (Staff Sergeant A________, SGT M_____, Specialist (SPC) H_____, SPC S JR H_____), and Captain (CPT) H_____ cleared the site and maintained positive control of all incoming vehicle movements and civilians. c. A sworn statement dated 15 May 2017, in which SGT M_____ states, in effect, he was in vehicle 3 (MRAP), when at approximately 1730 hours on 20 November 2009, vehicle 2 (HMWWV) and vehicle 3 of a seven vehicle convoy were hit with suffering damage from an IED. CPT H_____ and the applicant called for the QRF and EOD. They also identified a potential triggerman to the north of their position. A pursuit team comprised of first lieutenant (1LT) D___, SPC S JR H_____, and himself gave chase. After pursuing the potential triggerman on foot, 1LT D___ deemed it too dangerous to pursue him further after the potential triggerman entered a storm drain. d. An MFR, awards board proposal, dated 25 October 2016, from SPC S JR H_____ in which he states, in effect, he was in the fourth vehicle of the convoy as the crew served gunner when they encountered an IED. He notes the applicant immediately radioed for the QRF and he received instructions to pursue the potential triggerman. He further states in a letter of support dated 10 October 2019, that the applicant, among others previously mentioned, were exposed to the effects of an IED on 20 November 2009. He has already been awarded the CAB for the incident and requests the applicant's case be reconsidered based on the events and clerical error listed on the AHRC denial letter. 9. The CAB was created to provide special recognition to Soldiers who personally engaged, or are engaged by, the enemy. The CAB is not intended to recognize Soldiers who simply serve in a combat zone or imminent danger area. Battle participation credit alone is not sufficient; the unit must have engaged or been engaged by the enemy. Specific eligibility requirements include: a. A Soldier must be personally present and under hostile fire while performing satisfactorily in accordance with the prescribed rules of engagement, in an area where hostile fire pay or imminent danger pay is authorized. b. A Soldier must also be performing in an offensive or defensive act while participating in combat operations, engaging, or being engaged by the enemy. c. A Soldier must be performing their assigned duties associated with the unit’s combat mission in an area where hostile fire pay or imminent danger pay is authorized. BOARD DISCUSSION: The Board agreed that the applicant's actions during the IED incident on 20 November 2009 met the criteria for award of the CAB. The Board determined the applicant's record should be corrected by awarding him this badge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 20 November 2009. 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, United States 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 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. 2. Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 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, the CAB is not intended to recognize Soldiers who simply serve in a combat zone or imminent danger area. Battle participation credit alone is not sufficient; the unit must have engaged or been engaged by the enemy. Specific eligibility requirements include: a. A Soldier must be personally present and under hostile fire while performing satisfactorily in accordance with the prescribed rules of engagement, in an area where hostile fire pay or imminent danger pay is authorized. b. A Soldier must also be performing in an offensive or defensive act while participating in combat operations, engaging, or being engaged by the enemy. c. A Soldier must be performing their assigned duties associated with the unit’s combat mission in an area where hostile fire pay or imminent danger pay is authorized. d. The CAB will be announced in permanent orders. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013822 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1