2.  The applicant requests, in effect, that he be relieved of financial liability in the amount of $586.00 imposed by Report of Survey (ROS) S02-92, and that all moneys collected be refunded to him.

3.  The applicant is a Sergeant First Class (E-7) in the Puerto Rico Army National Guard.  In September 1991, he was assigned to the Military Academy Division of the State Area Command Headquarters with duty as the food services NCO (noncommissioned officer). The Military Academy operated only during periods when officer candidate training was conducted.

4.  On Monday, 10 September 1991, during a routine visit to the Military Academy Dining Facility, personnel discovered that the large freezer used to store refrigerated food items had broken and all frozen food had spoiled causing a loss of $1,334.59.  After disposing of the spoiled food, an ROS was initiated on 11 October 1991 and a survey officer appointed.

5.  The ROS revealed:  that the dining facility had requisitioned food much too far in advance of an anticipated Military Academy class; that the dining facility had requisitioned an amount of food greater than that authorized for the size of the population to be served; that a system at the Fort Allen, Puerto Rico electrical station which supplied two phase power had failed, causing the compressor in the dining facility freezer to overheat and burn out.  Given that mechanical failure was the proximate cause of the loss, the survey officer recommended that no one be held financially liable.

6.  The ROS appointing authority disagreed with the survey officer and, focusing on the accumulation of unauthorized foodstuffs, rationalized that if the items were not in the freezer, they could not have been lost through spoilage.  He held the applicant jointly responsible with the food service officer for this occurrence and assessed him financial liability for $586.00 in 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 the basic fact that mechanical failure was the proximate cause of the loss, not some action or omission by the applicant.

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.

CONCLUSIONS:

1.  The applicant may have violated proper procedures by requisitioning excess foodstuffs too far in advance of the required use date, but he did not show negligence in his handling of these items.  The foodstuffs were spoiled because an electrical station failed and caused the freezer motor to burn out.  The applicant had no control over this occurrence.

2.  The USALIA advisory opinion recommends granting relief from financial liability.

3.  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 of the Department of the Army records related to this case be corrected by relieving the individual concerned of all financial liability imposed by ROS S02-92, and by refunding to him any moneys already collected. 

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON