2. The applicant requests that he be relieved of financial liability in the amount of $1,480.61 (1 months 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 applicants unit was poorly led and the applicant was an incompetent supply sergeant. This combination led to serious problems with property accountability. The applicants predecessor had been relieved from the AGR program in August 1989 and, for more than 2 months, the unit commander left the Supply Room vacant and never directed the outgoing supply sergeant to conduct a 100% inventory of unit property. Upon assuming his new duties, the applicant never conducted an inventory; however, in November 1991, the unit experienced a change of command and there is an unsigned statement in the record showing that an inventory was conducted between the old commander and someone identified only as myself and that all property was present. This is somewhat amazing because the unit had deployed to Southwest Asia for Operation Desert Storm and, after returning from Saudi Arabia in July 1991, it took more than 1 year to receive all of the units deployed equipment. The units property was not available for inventory in November 1991! In the applicants defense, he did recognize that he was operating beyond his limited capabilities and repeatedly sought help from his chain of command to no avail.
5. In July 1992, the applicant was sent to the Unit Supply Specialist Basic NCO Course (BNCOC) in Pineville, Louisiana. He failed the course and returned to his unit in early September 1992. He was removed from the AGR program on 30 October 1992 because of his failure to pass BNCOC. A new supply sergeant reported for duty in November 1992 and, upon conducting an inventory and finding numerous shortages, an ROS was initiated on 13 January 1993. An ROS officer was appointed and an investigation was started on 19 March 1993 and concluded on 26 August 1993. Upon completion of his investigation, the survey officer found that the applicants incompetence was the proximate cause of the losses and recommended that he and the unit commander be held jointly liable for the missing property.
6. The ROS approving authority, on 27 September 1993, approved the ROS recommendation to hold the applicant and his commander liable for the lost property (typewriters, blankets, watches, and MP gear). Without concern for the due process rights of the applicant, and in violation of Army regulations, the ROS was forwarded to finance authorities without benefit of a required legal review for collection of the debt. The applicants pay was withheld beginning in November 1993.
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 commented that the ROS was improperly conducted and that the applicants due process rights of rebuttal and request for reconsideration were completely denied. Further, the USALIA opined that the applicants incompetence could not be proven to be the proximate cause of the losses as it was never determined what was on hand when the applicant took over as supply sergeant (the only document to suggest full property accountability was the previously mentioned, unsigned statement of myself in November 1991).
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 ($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.
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. There is no doubt that the applicant was an incompetent supply sergeant as witnessed by his abysmal performance on the job and in BNCOC. However, it cannot be stated that his incompetence was the proximate cause of the units shortages.
2. The ROS was improperly conducted and the survey officers investigation was poor, untimely, and his conclusions insupportable.
3. The ROS was not processed properly and the applicants due process rights, guaranteed by Army regulation, were totally ignored.
4. 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.
5. In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicants 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 T12-93 in the amount of $1,480.61, and that all moneys collected from him be refunded.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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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. 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. For example, the incoming...
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c. Likewise, the applicant was the primary hand receipt holder for the property on ROS #S-16C-17-95 and failed to properly account for it. His negligence in not properly accounting for the property or using proper supply procedures to issue the property was the proximate cause of its loss. That all of the Department of the Army records related to this case be corrected by: a. relieving the individual concerned of financial liability imposed by ROS #S-16C-14-95 in the amount of $1357.23; b....
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