ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  15 March 2022 DOCKET NUMBER: AR20210012171


APPLICANT REQUESTS: in effect, reconsideration of his request for: 

.award of the Combat Action Badge (CAB)

.all awards to be included on his DD Form 214 (Certificate of Release orDischarge from Active Duty)

.promotion to sergeant (E5/SGT)



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record), online application 

FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20200003709 on 30 December 2020.

2.The applicant states, in effect:

a.He would like to receive an updated copy of his DD Form 214 (Certificate ofRelease or Discharge from Active Duty) with his discharge, medals, and rank. The last DD Form 214 he received was from his deployment. 

b.He has sent his request before that he was supposed to receive his CAB due toreceiving mortars and direct gun fire on several missions. He was also supposed to receive a promotion, during deployment but his unit, at the time, left this information out due to him having a seizure in Kuwait so this was the opportunity for them to do less paperwork and leave him with nothing. 

c.Everyone came home with CABs, combat infantryman badges, and promotions,meanwhile, he was in Landsthul, Germany while hooked up to machines. His unit, at the time, would not return his phone calls or emails. He tried to contact several people in the rear detachment to address his situation, but he did not get a response. He also tried to call down range with no response. He feels he deserves this. He was downrange daily and saw mortars land next to his truck and got into gun fights with 
individuals on top of the mountains. He has tried several times to address this situation but no one would help him. He thinks he deserves this because he fought alongside of the same individuals who received CABs and got promoted. His unit let him out because he was no there to defend himself.  

3.On 21 February 2008, the applicant enlisted in the US Army Reserve (USAR) for aperiod of 6 years.

4.On 30 September 2009, orders were published ordering the applicant to active dutyfor a period of 400 days in support of Iraqi Freedom. He had a report date at Fort Sill,Oklahoma on 17 November 2009.

5.On 18 December 2009, temporary change of station orders were published fordeployment in support of Operation Iraqi Freedom not to exceed 344 days with aproceed date of 11 January 2010.

6.On 14 April 2010, a Personnel Action was completed promoting the applicant toSpecialist effective 14 November 2009.

7.On 10 July 2010, orders were published reassigning the applicant to Womack ArmyMedical Center, Fort Bragg, North Carolina for Medical Evacuation of a ReserveComponent Soldier for continued Medical Care with a report date of 10 July 2010 andend date of 19 July 2010.

8.On 30 July 2010, orders were published retaining the applicant on active duty toparticipate in Reserve Component Warriors in Transition Medical Retention ProcessingProgram for completion of medical evaluation. His report day was 30 July 2010 for 60days. On 31 August 2010, the orders were amended changing the end date from
27 September 2010 to 31 August 2010.

9.On 2 September 2010, orders were published retaining the applicant on active duty toparticipate in Reserve Component Warriors in Transition Medical Retention ProcessingProgram for completion of medical care and treatment. His report date was 1September 2010 for 325 days ending on 22 July 2011. On 23 May 2011, the orderswere amended changing the end date from 22 July 2011 to 17 January 2012.

10.On 2 June 2011, a memorandum subject:  Request for Early Release from ActiveDuty of the applicant, and states in effect, the applicant's request for early release fromactive duty of the applicant was reviewed in accordance with regulation and wasapproved. The release date would be no later than 23 June 2011. The Fort BraggTransition Center would be responsible for publication of the separation order withassignment to his USAR unit. The Fort Bragg Transition Center would ensure theapplicant received a DD Form 214 as validation of his active duty service.
11.On 20 June 2011, the applicant was issued a DD Form 214, which shows in:

a.Block 2 (Department, Component, and Branch):  Army/USAR

b.Block 4a (Grade, Rate, or Rank):  Specialist

c.Block 9 (Command to Which Transferred):  his USAR unit

d.Block 12 (Record of Service):  Date entered AD this Period:  17 November 2009
    Separation Date this Period:   20 June 2011 
 Net Active Service This Period:  1 year, 7 months, and 4 days 

e.Block 13 (Decorations, Medals, Badges, Citations, and Campaign RibbonsAwarded or Authorized): 

.National Defense Service Medal

.Global War on Terrorism Service Medal

.Iraq Campaign medal with Campaign Star

.Army Service Ribbon

.Overseas Service Ribbon



f.Block 18 (Remarks):  Served in a designated imminent danger pay area. Servicein Afghanistan from 11 January 2010 to 1 July 2010. Applicant completed period for which he was ordered to active duty. Ordered to active duty in support of operation Iraqi Freedom. 

g.Block 23 (Type of Separation): Release from Active Duty

h.Block 24 (Character of Service): Honorable

i.Bock 28 (Narrative Reason for Separation):  Completion of Required ActiveService. 

j.On 26 January 2021, a DD Form 215 (Correction to DD Form 214) was issuedadding the Afghanistan Campaign Medal with 1 bronze service star to his DD Form 214. 

12.On 22 June 2011, orders were published amending his active duty orders changingthe end date from 17 January 2012 to 20 June 2011.

13.On 11 August 2012, the applicant was part of a urinalysis, with his USAR unit, andwas found positive for the use of marijuana.

14.On 1 October 2012, his immediate commander notified him that he was beingrecommended for separation under the provisions of Army Regulation 135-178 (EnlistedAdministrative Separation), Chapter 12, paragraph 12-1d for abuse of illegal drugs. Theapplicant had 30 days from receipt of notification to respond.

15.On 1 October 2012, the unit paralegal specialist completed and affidavit of serviceby mail, which states on 1 October 2012, she mailed notification of separation to theapplicant via return receipt requested to the applicant's last known address. The returnreceipt was returned to the unit as unclaimed. The applicant's service record is void ofacknowledgment of the separation proceedings and election of rights.

16.On 5 November 2012, a commander's report was completed stating thecommander's reasons for recommending separation and an under other than honorableconditions characterization of service. His reasons were as follows:

a.The applicant was tested for use of illegal substances on 11 August 2012, duringa random urinalysis and was found positive for the use of marijuana. 

b.An effort to rehabilitate the applicant would be non-productive. The applicantdisregarded the commander's zero tolerance policy and this lack of discipline was unacceptable. 

c.There had been nor prior documented drug or alcohol abuse by the applicant.

d.The applicant's circumstances involving the case were unknown. He had beenunreachable since the incident. 

e.Attempts to rehabilitate the applicant had bee unsuccessful because the applicantrefused to communicate and failed to report to battle assembly. 

f.There had been no further efforts, other than counseling, in regards to theapplicant's rehabilitation efforts. He was an 88M, which required him to operate heavy trucks, transport vehicles, personnel, and cargo. His lack of discipline could compromise mission safety and accomplishment.  

17.The applicant's chain of command recommended approval of the discharge with anunder other than honorable conditions discharge and reduction to the grade ofPrivate/E1 (PVT). On 28 November 2012, the Assistant Staff Judge Advocate found theseparation to be legally sufficient.

18.On 19 February 2013, the appropriate separation authority approved the separationand directed the applicant be issued an under other than honorable conditionsdischarge and reduction to the rank of PVT.
19.On 14 March 2013, orders were published reducing the applicant to PVT effective14 March 2013, and discharging the applicant from the USAR with an under other thanhonorable conditions discharge effective 19 March 2013.

20.On 7 February 2019, the Army Discharge Review Board sent the applicant a letterstating, they reviewed his case and voted to grant relief by changing his characterizationof service to honorable.

21.On 30 December 2020, the applicant received a letter from the ABCMR stating theywould correct his DD Form 214 by adding the Afghanistan Campaign Medal with 1Bronze Star. They were not able to add the CAB because he had not applied to the USArmy Human Resources Command who had the authority to AWARD the CAB toeligible Veterans retroactive to 18 September 2001.

22.The applicant is requesting, in effect award of the CAB, all awards to be included onhis DD Form 214, and promotion to SGT stating he was with other Soldiers whenmortars fell in the area and those Soldiers received the CAB. Other Soldiers werepromoted to SGT, while they were downrange and he should have been promoted aswell. He has not received a DD Form 214 since his deployment DD Form 214.

23.In reference to the applicant's request for award of the CAB:

a.There is no evidence in the applicant's service record that he was in the area ofmortar attacks or fought in combat. The applicant did not provide documentary evidenced to support his claim.  

b.Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, andadministrative instructions concerning individual and unit military awards. The requirements for award of the CAB are 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, 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. 

24.In reference to the applicant's request all awards to be included on his DD Form 214and stating the last DD Form 214 he received was for his deployment:

a.The member was a member of the USAR and activated for deployment in Iraqand Afghanistan. 

b.Army Regulation 635-5 (Separation Documents) prescribed the separationdocuments prepared for Soldiers upon retirement, discharge, or release from active 
military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  The regulation stated that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of REFRAD, retirement, or discharge.  This regulation further stated that certificates of achievement, letters of commendation, and similar documents are not recorded on the DD Form 214.  A similar document is not issued to members of the USAR upon discharge.   

25.In reference to the applicant's request for promotion to SGT:

a.There is no evidence in the applicant's service record that he was beingconsidered for promotion, while he was deployed. The applicant did not provide documentary evidence showing he was being considered for promotion.  

b.Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes theenlisted promotions and reductions function of the military personnel system. Chapter 5 states Soldiers selected for promotion by boards are identified on a list maintained by the promotion authority.  Promotion from the list is by sequence and MOS based on a position vacancy within a geographical region. It prescribes policy for the promotion of USAR Soldiers assigned to USAR Troop Program Units. A promotion from the list is by sequence and MOS based on a position vacancy within a reasonable distance of the Soldier’s residence. Wherever practical, SGT promotion boards will be held at battalion or similar level. The results of a SGT promotion selection board will be sent to the promotion authority for integration on the PPRL and a PPRL will be maintained by the promotion authority.  Promotions from the list will be according to the procedures described in paragraph 5-10. 


BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant provided insufficient evidence to show he applied to HRC for award of the CAB and had been denied. There is also no evidence in the applicant's service record that he was being considered for promotion, while he was deployed. The applicant did not provide documentary evidence showing he was being considered for promotion.  





BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XX: XX: XX: 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. 

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. 

REFERENCES: 

1.Title 10, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the ABCMR determines itwould be in the interest of justice to do so.

2.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. The ABCMR begins its consideration of each casewith the presumption of administrative regularity. The applicant has the burden ofproving an error or injustice by a preponderance of the evidence.

3.Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, andadministrative instructions concerning individual and unit military awards. Therequirements for award of the CAB are branch and MOS immaterial. Assignment to acombat arms unit or a unit organized to conduct close or offensive combat operations orperforming 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 orimminent danger area. Battle participation credit alone is not sufficient; the unit musthave engaged or been engaged by the enemy.

a.Award of the CAB is not automatic and will not be awarded solely based on awardof the Purple Heart. 

b.Specific eligibility requirements include:

(1)May be awarded to any Soldier.

(2)A Soldier must be personally present and under hostile fire while performingsatisfactorily in accordance with the prescribed rules of engagement, in an area where hostile fire pay or imminent danger pay is authorized. For all named conflicts beginning after the effective date of this publication, a Soldier must also be performing in an offensive or defensive act while participating in combat operations, engaging, or being engaged by the enemy. 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. The requirement for hostile fire pay or imminent danger pay does not apply to cases determined to be eligible under the conditions described in paragraph 3-8c which states combat award recommendations for stability operations must be evaluated on a case-by-case basis to determine if award criteria are met. To ensure timely and appropriate recognition, paragraph 3-8 supersedes guidance elsewhere in 
this regulation in cases where there is a potential conflict pertaining to award or badge eligibility. 
 
  (3) 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. For example, an infantryman (MOS 11B) assigned to Corps staff is eligible for award of the CAB. However, an infantryman assigned to an infantry battalion is not eligible for award of the CAB. 
 
 c. Retroactive awards of the CAB are not authorized prior to 18 September 2001. 
 
 d. When delegated wartime awards approval authority by the Secretary of the Army (or his or her designee), the following authorities apply: 
 
  (1) Brigade commander level for Soldiers assigned to, attached to, or under the operational control of brigade-level or smaller units. 
 
  (2) The first general officer in the chain of command for Soldiers assigned to units at echelons above brigade. 
 
  (3) The next higher general officer in the chain for award to a general officer. 
 
  (4) Authority to award the CAB is also delegated to regional medical center commanders receiving casualties directly from the wartime theater. Medical center commander must ensure the Soldier meets the requirements. 
 
 e. The wartime command retains wartime awards approval authority for 12 months after redeployment, and can approve award of the CAB for Soldiers who deployed with their command, and qualified for, but did not receive the CAB during the deployment. 
 
 f. Soldiers may be awarded the Combat Infantryman Badge, Combat Medical Badge, and CAB for the same qualifying period, provided the criteria for each badge are met. However, subsequent awards of the same badge within the same qualifying period are not authorized. 
 
 g. Requests for retroactive award of the CAB will not be made except where evidence of injustice is presented. For requests submitted under paragraph 8–8g(2)(b) through (d) must include justification explaining why the CAB was not awarded in theater. 
 
 h. The CAB will be announced in permanent orders. 
 
4. Army Regulation 635-5 (Separation Documents) prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  The regulation stated that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of REFRAD, retirement, or discharge.  This regulation further stated that certificates of achievement, letters of commendation, and similar documents are not recorded on the DD Form 214.  A similar document is not issued to members of the USAR upon discharge.   
 
5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. 
 
 a. Chapter 5 states Soldiers selected for promotion by boards are identified on a list maintained by the promotion authority.  Promotion from the list is by sequence and MOS based on a position vacancy within a geographical region.  It prescribes policy for the promotion of USAR Soldiers assigned to USAR Troop Program Units.  A promotion from the list is by sequence and MOS based on a position vacancy within a reasonable distance of the Soldier’s residence.  Wherever practical, SGT promotion boards will be held at battalion or similar level.  The results of a SGT promotion selection board will be sent to the promotion authority for integration on the PPRL and a PPRL will be maintained by the promotion authority.  Promotions from the list will be according to the procedures described in paragraph 5-10. 
 
 b. To be promoted to SGT the Soldier must— 
 
• be in a promotable status per paragraph 1-10, of this regulation 
• be listed on a valid PPRL 
• be in the proper sequence order when promoted off the list 
• have a passing Army Physical Fitness Test score within 12 months of the date of the promotion order 
  
 c. The procedures necessary to accomplish a promotion from the promotion recommended list will be as follows: 
 
• based on cumulative vacancy computations the unit will report a current or projected vacancy requirement to the authority responsible for maintaining the PPRL 
• the authority will identify the Soldier on the list who will be promoted into the vacancy and notify the promotion authority 
• the promotion authority will then publish the promotion orders 
• the effective date of the promotion will be the date of the assignment to the vacancy 
 d. Selection off the PPRL must be in the following sequence - highest number of points with the required MOS residing within a reasonable distance of the required vacancy or reside outside a reasonable commuting distance and has submitted a statement of willingness to commute. 
 
 e. Paragraph 5-18 states a consolidated PPRL will be established, published, and maintained by the regional promotion list manager who will announce the suspense dates for receiving a copy of the report of board proceedings from the promotion authorities.  The reports will be consolidated into one PPRL.  The names of recommended Soldiers will be extracted from the reports and placed on the list according to the format described in paragraph 5-19.  The list will be revised every 3 months (or as often as needed) and distributed to all subordinate commands.  A copy of the list will be retained in the files of the issuing authority for 2 years. 
 
//NOTHING FOLLOWS//