2. The applicant requests that he be relieved of financial liability in the amount of $1,480.61 (1 month’s pay) imposed by Report of Survey (ROS) T12-93, and that all moneys collected be refunded to him. 3. In October 1989, the applicant was a sergeant in the Puerto Rico Army National Guard, serving in an Active Guard/Reserve (AGR) assignment as the newly assigned supply sergeant for an MP Company. He had been in the AGR program since May 1984 and, although he held military occupational specialty (MOS) 76Y, supply specialist, this was his first assignment as a unit supply sergeant. 4. By all accounts, the applicant’s unit was poorly led and the applicant was an incompetent supply sergeant. This combination led to serious problems with property accountability. The applicant’s predecessor had been relieved from the AGR program in August 1989 and for more than two months there was no one working in the Supply Room. Prior to his departure, the previous supply sergeant did not conduct an inventory of Upon conclusion of Operation Just Cause, the equipment on loan from the NVEOD was picked up on 15 February 1990, but not the three NVG’s. After failing to recover the NVG’s, the NVEOD, on 26 February 1992, initiated an ROS. A survey officer was appointed and, upon completion of his investigation, he found that the apparent last person to sign a temporary hand receipt for the missing NVG’s was the applicant and recommended that he be held financial liable for $18,012.00 in losses. He reached this determination by drawing insupportable conclusions from statements to suggest that the applicant knew that the NVG’s were missing and stalled for time to recover them. 5. The ROS appointing/approving authority, on 24 March 1994, approved the ROS recommendation to hold the applicant liable for the lost NVG’s. It should be noted that during the period of Operation Just Cause in late 1989 and early 1990, the applicant was diagnosed with Parkinson’s Disease and his physical condition rapidly deteriorated to the point where he was retired with a permanent physical disability in October 1992. His deteriorating physical condition severely hampered his ability to perform his duties as a supply sergeant. 6. In the processing of this case, the United States Army Logistics Integration Agency (USALIA) provided an opinion recommending that the applicant be relieved of financial liability. The USALIA commented that the NVG’s were classified as sensitive items and, as such, required documented quarterly inventories which, apparently, were not conducted. Other irregularities were cited, including the fact that the NVG’s were improperly hand receipted numerous times before arriving at the applicant’s unit. Finally, the survey process, itself, was faulty, as were some of the conclusions on the part of the survey officer. The applicant was denied due process by the very fact that the ROS took more than two years to initiate and complete when it should have taken not longer than 75 days according to Army Regulation 735-5. This impaired the applicant’s ability to defend himself against the survey officer’s findings. 7. Chapter 13 of Army Regulation 735-5 states that the Government may impose a finding of pecuniary liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage, or destruction of Government property. The total amount of pecuniary liability for soldiers will be established as the equivalent of 1 month's basic pay ($1,844.70 in this instance) at the time of the loss, or the actual amount of the loss to the Government, whichever is the lesser amount. 8. The Consolidated Glossary for AR 735-5 defines simple negligence as the failure to act as a reasonably prudent person would have acted under similar circumstances. Gross negligence is defined as an extreme departure from the course of action expected of a reasonably prudent person, and accompanied by a reckless, deliberate, or wanton disregard for the foreseeable consequences of the act. Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss or damage would not have occurred. CONCLUSIONS: 1. The ROS was improperly conducted and the survey officer’s conclusions were not always supported by facts. 2. The ROS was not conducted in a timely manner which greatly hindered the applicant’s ability to provide meaningful documentation to support his contentions of what may have happened to the NVG’s. 3. The USALIA advisory opinion recommends granting relief from financial liability. It cites the improperly conducted ROS and the lack of due process afforded to the applicant by the inordinate delay in conducting an investigation into the loss. 4. In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below. RECOMMENDATION: That all Department of the Army records related to this case be corrected by showing that the individual concerned is relieved of financial liability assessed by ROS 8-94 in the amount of $1,844.70, and that all moneys collected from him be refunded. BOARD VOTE: GRANT AS STATED IN RECOMMENDATION GRANT FORMAL HEARING DENY APPLICATION CHAIRPERSON