IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20230001027 APPLICANT REQUESTS: reconsideration of his previous request for retroactive award of the Combat Action Badge (CAB) and a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement (new evidence), undated * enclosure (1), letter and addendum * letter, Major N.B.Q, 21 August 2021 * addendum letter, Major N.B.Q (new evidence), 18 August 2022 * enclosure (2), three memoranda for the record (MFR), two self-authored sworn statements, and three buddy statements * self-authored sworn statement, 25 February 2020 * MFR Master Sergeant (MSG) J.B.H., 25 February 2020 * MFR Master Sergeant (MSG) J.B.H., 20 March 2020 * MFR First Sergeant (1SG) J.B.H., undated * self-authored sworn statement, 15 September 2021 * buddy statement Staff Sergeant (SSG), retired J.E.B., undated * buddy statement SSG A.J.E. (new evidence), undated * buddy statement Corporal (CPL) H.S. (new evidence), 9 September 2022 * enclosure (3), five images/pictures of Gun trucks and Boomerang system * diagram/image of ambush area, undated * picture of the front of Gun truck five, undated * picture of right side of Gun truck five, undated * close-up picture of front of Gun truck five with decapitated Saint Paul figurine, undated * pictures of Gun truck four Boomerang III system (new evidence), undated * enclosure (4), Army Regulation (AR) 600-8-22 (Military Awards), 2006 and 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 13 November 2014 * Orders D-02-904437, 12 February 2019 * supporting document (1), Attorney submitted Army Board for Correction of Military Records (ABCMR) Packet * supporting document (2), Human Resources Command (HRC) denial letter, 7 September 2021 * letter, Congressman V.G. to Secretary of the Army C.W. (new evidence), 27 June 2022 * Congressional Privacy Act Release Form (new evidence), undated * supporting document (3), ABCMR denial letter and Record of Proceeding (AR20220001276), 8 August 2022 * letter from Colonel (Retired) A.T.H. to the ABCMR (new evidence), 29 April 2023 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20220001276 on 2 August 2022. 2. The applicant provides new evidence and argument not previously considered by the Board. The applicant states: a. The Board's reason for denying his previously submitted request was incorrect. All sworn statements mention that the mine roller attached to his vehicle received extensive damage from small arms fire. The new evidence proves that the fourth gun truck received small arms fire as it passed the ambush area, and that the enemy subsequently engaged the fifth gun truck in which he was riding. Please consider his previously submitted evidence and the new evidence that strengthens the claim that the enemy engaged his gun truck. b. The summary of the evidence that he previously submitted shows ample evidence proving the enemy combatants engaged his truck, and as such, he earned the CAB. He and his fellow Soldier he deployed to Afghanistan with have been attempting to receive the award they deserved. Because of the significant action on 11 August 2014, his chain of command submitted them for the award of the CAB because they were directly engaged by the enemy (see enclosures (1), (2), and (3)). The Company, the Battalion, and the Brigade approved the award of the CAB. However, the award packet was lost at Division due to a change of command (see enclosure (1)). They have fought this injustice for eight-plus years to receive an award earned but not distributed because of an administrative error at the highest level. Since then, they have submitted a request for the CAB to HRC on their own via their respective Congressman. All attempts ended in denials not based on facts. He submitted a request to the ABCMR and recently received a denial letter for that request as well. He believes the Board should have seriously considered the voluminous evidence supporting his case. Below, he breaks down the supporting documents so the Board may review them once again. c. The denial letter from the HRC, dated 7 September 2021 (supporting document (2)) states: "We are unable to take favorable action upon your request. Army combat badges are designed to provide special recognition to Soldiers who personally engage the enemy in ground combat or who satisfactorily perform their duties while being engaged in ground combat by the enemy. This particular event does not meet the regulatory guidance for award of the Combat Action Badge (CAB). In accordance with Army Regulation (AR) 600-8-22 (Military Awards), paragraph 8-8, the CAB is not intended to recognize an individual for unit battle participation or deployment to a combat zone. The CAB is designed to recognize the non-Infantry Soldier, whose daily mission, similar to infantry, is to engage with and destroy the enemy. The badge is intended to recognize an individual Soldier's satisfactory performance in ground combat with the enemy. The retroactive request considered by this office did not demonstrate that Mr. M. [the applicant] fulfilled the basic criteria. We understand that another vehicle in the convoy was engaged by the enemy; nevertheless, as [the applicant's] vehicle was not engaged, nor did he personally engage the enemy, this event does not qualify for award". (1) As stated in all supporting documents, the enemy engaged his vehicle, a civilian vehicle, and another military vehicle with small arms fire. The confusion occurred because HRC was unaware that the "Mine roller" was an extension of his truck (see enclosures (1), (2), and (3)). They satisfactorily performed their duties by following the rules of engagement and company standard operating procedures to push through the area (Killzone) if they could not identify the enemy. (2) AR 600-8-22 (see enclosure (4)) does not mention or intend the award to be exclusive to non-Infantry Soldiers, whose daily mission, similar to Infantrymen, is to engage with and destroy the enemy. Enclosure (4) shows the opposite of the award's purpose. As stated on page 11 of supporting document (1), this language is not part of the regulation, and the assertion is without any reasoned justification. (3) The case studies on pages 11 and 12 of supporting document (1) show many instances where soldiers were awarded the Combat Action Badge for just being in the proximity of indirect fire and not engaging the enemy. These instances were far less direct and common, yet they still met the regulatory threshold that HRC and ABCMR cite. This double standard is an injustice with the overwhelming amount of evidence we have presented for years. d. The ABCMR on pages 13 and 14 of supporting document (3) stated in the board discussion and board determination/recommendation: "The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The Board noted that Army combat badges are designed to provide special recognition to Soldiers who personally engage the enemy in ground combat or who satisfactorily perform their duties while being engaged in ground combat by the enemy. The CAB is not intended to recognize an individual for unit battle participation or deployment to a combat zone. The CAB is designed to recognize the non-infantry Soldier, whose daily mission, similar to infantry, is to engage with and destroy the enemy. In that regard and within these parameters, the Board determine[d] that the recommendation of the CAB does not meet the statutory guidance outlined in AR 600-8-22. While the Board did note that another vehicle in a convoy was engaged by the enemy; nevertheless, as the applicant's vehicle was not engaged, nor did he personally engage the enemy, this event does not qualify for award. A Soldier must also be performing in an offensive or defensive act while participating in combat operations, engaging, or being engaged by the enemy. Based on the preponderance of the evidence, the applicant does not meet the criteria for award of the CAB in this case. 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". e. The evidence laid out on pages 8 to12 of supporting document (1) shows the applicant meets the criteria for award of the CAB. Furthermore, the CAB was lost at no fault of the soldiers (see enclosure (1)), and different standards are being applied to his situation compared to the case studies presented on pages 11 and 12 of supporting document (1). Not receiving the CAB and being provided special recognition to Soldiers who personally engage the enemy in ground combat or who satisfactorily performed their duties while being engaged in ground combat by the enemy is an injustice that needs remedy. 4. The applicant enlisted in the U.S. Army Reserve on 11 February 2011. He successfully completed training and was awarded military occupational specialty 88M (Motor Transport Operator). 5. He entered active duty on 20 February 2014, and he served in Afghanistan from 18 April to 15 October 2014. 6. On 13 November 2014, he was honorably released from active duty upon the completion of his required active service. The DD Form 214 he was issued shows he was awarded or authorized the: * Afghanistan Campaign Medal with campaign star * Army Commendation Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Armed Forces Reserve Medal with M Device * Driver and Mechanic Badge with Driver-Wheeled Vehicle clasp 7. On 12 February 2019, he was honorably discharged from the USAR. 8. The applicant provides previously considered evidence and the following new evidence in support of his request: a. A letter and addendum letter from Major N.B.L. states, in effect, he was the commander of the 498th Transportation Company. On 11 August 2014, a convoy under his command came under small arms fire while conducting operations from Forward Operating Base (FOB) Shank to FOB Ghazni, Afghanistan. The applicant was present and took a defensive position while his vehicle and other vehicles in his convoy came under fire. The applicant's actions were in line with the Company's standard operating procedures (SOP) to move through and out of a kill zone and not return fire unless positive identification occurred. The engagement damaged one of the escorted civilian vehicles and the applicant s vehicle with the attached mine roller. Upon the convoy's return to Bagram Airfield (BAF), the applicant and the Soldiers who were actively engaged by the enemy were put in for award of the CAB. The CAB award packets were approved at the Battalion and Brigade level and forwarded to the 10th Mountain Division in command for final approval. However, the award packets were lost during the transition of command between the 10th Mountain Division and the 4th Infantry Division, and the applicant and his fellow soldiers did not receive the CAB. b. A buddy statement from SSG A.J.E. states, in effect, himself, the applicant, and other servicemembers from the 498th Transportation Company were part of a Convoy Escort Team (CET) responsible for the safety and security of civilian white trucks, the truck drivers and the equipment they were tasked to haul for the U.S. Army as part of ongoing retrograde operations. On 11 August 2014, the CET consisting of five-gun trucks, a maintenance wrecker vehicle, and the six white trucks they were escorting came under enemy fire. At some point during the mission, SSG A.J.E. observed the boomerang system alerting him of small arms fire. He alerted the CET commander Sergeant First Class How___ of the direction and distance of incoming small arms fire each time he received an alert. No enemy combatants were identified, and the CET was able to push through a would-be kill zone. Once the convoy was halted, a damage assessment found flat tires on a white truck and extensive damage to the mine roller attached to the applicant s gun truck. c. A buddy statement from CPL H.S. states, in effect, the applicant was an assistant gunner in the same gun truck he was the gunner. On 11 August 2014, his convoy was attacked with small arms fire while escorting civilian-operated vehicles from FOB Shank to FOB Ghazni, Afghanistan. He was informed the convoy was taking small arms fire when the truck commander SSG E. sent out the alert via the radio that their boomerang system was alerting them they were taking small arms fire. He witnessed civilians run for cover and lie in a ditch beside the road. The convoy followed SOP and took up defensive positions. Because they were in a village, he could hear but could not see the exact location where the incoming rounds were coming from. He later learned a civilian vehicle and the mine roller attached to his and the applicant s vehicle were struck multiple times. d. Pictures of Gun truck four Boomerang III system. e. A letter from Congressman V.G. to Secretary of the Army C.W. and Congressional Privacy Act Release Form. f. A letter from Colonel (retired) A.T.H. to the ABCMR, states, in effect: (1) He was the applicant s Battalion Commander in 2014. He supports his application to the ABCMR for retroactive award of the CAB. Because of what it represents and what it requires of a Soldier, the CAB award packets are thoroughly vetted within his Battalion. He remembers the event clearly since he was present before, during, and after the attack on the applicant s convoy. It was a deliberate ambush with small arms fire with enough rounds and firepower to cause extensive damage to vehicles and equipment. The impact of small arms fire from the enemy on the side of the road was observed impacting within proximity, mere feet, in front of the vehicle the applicant was operating in, causing extensive damage. He was present, under hostile fire, and performed his assigned duties bravely, satisfactorily, per the rules of engagement. After gaining additional insight and understanding about the attack as he reviewed the CAB award packets of the applicant and his fellow Soldiers, he was confident to recommend approval then and now. (2) Because of his knowledge of the events, the Colonel can attest that the applicant and the other occupants of the vehicle he inhabited were personally present, under hostile fire, and conducted defensive acts while engaged by the enemy. At the same time, they performed satisfactorily per the prescribed rules of engagement. Given these facts and how they satisfy all requirements for the award of the CAB, he gladly recommends approval of the applicant s ABCMR award request. He hopes the ABCMR corrects this injustice and grants the applicant relief. 9. The ABCMR considered the applicant's request for correction of his DD form 214 to show award of the Combat Action Badge on 2 August 2022. After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board found the evidence presented did not demonstrate the existence of a probable error or injustice as a basis for correction of the applicant s records. 10. Regulatory guidance states the Combat Action Badge provides special recognition to Soldiers who personally engaged or are engaged by the enemy it is not intended to recognize Soldiers who simply serve in a combat zone or imminent danger area. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant s contentions, the military record, and regulatory guidance on the award of the Combat Action Badge. The Board gave due consideration to the letters of support to include that of a colonel who attested to the validity of the applicant s request and that he had recommended the applicant and the request had been properly vetted. Based on the documentation available for review the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :xx :xx :xx GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20220001276 dated 2 August 2022. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD2144 for the period ending 13 November 2014 to show the award of the Combat Action Badge. 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. AR 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 Combat Action Badge 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 Combat Action Badge. However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area. The Combat Action Badge may be awarded to any Soldier. Paragraph 8-8 specific eligibility requirements include: a. Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. b. 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. c. Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Action Badge/Combat Medical Badge. For example, an 11B (Infantryman) assigned to Corps staff is eligible for award of the Combat Action Badge. However, an 11B assigned to an infantry battalion is not eligible for award of the Combat Action Badge. d. Award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined. Award for qualifying service in any previous conflict is not authorized. e. Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001. For service on or after 18 September 2001, applications with supporting documentation for retroactive awards of the Combat Action Badge will be forwarded through the first 2-star general in the chain of command to HRC. f. The Combat Action Badge may be awarded by any commander delegated authority by the Secretary of the Army during wartime or HRC. Effective 3 June 2005, Commanders delegated authority to award the Combat Action Badge may further delegate award authority to commanders in the grade of major general or above. The Combat Action Badge will be announced in permanent orders. 2. Army Regulation 15-185 (ABCMR) states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001027 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1