2. The applicant requests that he be relieved of financial liability in the amount of $2,738.00 imposed by Report of Survey (ROS) 91-018, and that all moneys collected be refunded to him. 3. The applicant is a Major serving on active duty in the Regular Army. In 1990, he was a Captain assigned to an Infantry battalion in Germany with duty as a company commander. He completed his command tour in December 1990 and was reassigned to Fort Benning, Georgia. Because of time constraints, it was not possible to complete a joint inventory of all unit property with the incoming commander, therefore the applicant assigned a representative to finish the inventory. Because of pressing mission requirements, the new commander signed for the unit property before actually completing the inventory. When he did complete the inventory, tool kit shortages in the amount of $14,447.87 were identified. 4. An ROS was initiated on 8 May 1991 and a survey officer appointed. Upon completion of his investigation, the survey officer found that the required joint inventory between outgoing and incoming commanders was not accomplished, however the applicant provided a representative (a hand receipt holder) to accompany the new commander during the inventory. He also found: that the new commander used an outdated supply catalog to inventory unit tool kits rather than the actual hand receipts; that the inventory took far greater than the time stipulated by regulation; that problems with property accountability had been identified prior the applicant’s assumption of command in 1989; that the applicant had relieved his supply sergeant in January 1990 because of this problem. The survey officer concluded that the losses were the result of a lack of timely inventory by the applicant, but recommended that he be relieved of liability while the incoming commander be held financially liable because of his having signed for the property without inventorying it. 5. The ROS appointing/approving authority disagreed with the survey officer, indicating that the incoming commander had identified shortages, but was instructed by the battalion commander [the appointing/approving authority] to initiate the ROS at a later date. He determined that the incoming commander should not have signed for the property without properly inventorying it, but found the applicant financially liable for the losses. 7. 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 cited irregularities with the survey process and faulty conclusions on the part of the survey officer. For example, the incoming commander could not have been responsible for the losses which occurred prior to his assumption of command; losses were reported prior to the applicant taking command and, although he was remiss in not resolving the shortages, this failure was not the proximate cause of the losses. Finally, the USALIA found that the applicant was denied due process when the appointing/approving authority failed to notify him that he was changing the survey officer’s recommendations. 8. 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 at the time of the loss, or the actual amount of the loss to the Government, whichever is the lesser amount. 9. 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 supported by facts, nor were his recommendations in accordance with pertinent regulations. 2. There were shortages noted before the applicant assumed command in 1989. Six months after assuming command, he relieved his supply sergeant for his failure to account for unit property. Although he was remiss in not taking action to account for the missing property, this failure was not the proximate cause of the losses. 3. The USALIA advisory opinion recommends granting relief from financial liability. It cites the improperly conducted ROS, the lack of due process, and the insupportable conclusions drawn by the survey officer. 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 91-018 in the amount of $2,738.00, and that all moneys collected from him be refunded. BOARD VOTE: GRANT AS STATED IN RECOMMENDATION GRANT FORMAL HEARING DENY APPLICATION CHAIRPERSON