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 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 NVGs. After failing to recover the NVGs, 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 NVGs 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 NVGs 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 NVGs. It should be noted that during the period of Operation Just Cause in late 1989 and early 1990, the applicant was diagnosed with Parkinsons 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 NVGs 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 NVGs were improperly hand receipted numerous times before arriving at the applicants 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 applicants ability to defend himself against the survey officers 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 officers conclusions were not always supported by facts.
2. The ROS was not conducted in a timely manner which greatly hindered the applicants ability to provide meaningful documentation to support his contentions of what may have happened to the NVGs.
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 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 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
ARMY | BCMR | CY1995 | 9506542C070209
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. By all accounts, the applicants unit was poorly led and the applicant was an incompetent supply sergeant. 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...
ARMY | BCMR | CY1995 | 9509641C070209
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...
ARMY | BCMR | CY1995 | 9511255C070209
Although he may not have had direct responsibility for the unit property by way of formal hand receipt documents, he had supervisory responsibility over the junior, full-time AGR NCO who functioned as the supply sergeant; as a supervisor, he should have stepped-in to remedy or, at least surface, accountability problems. The applicants failure to properly discharge his supervisory responsibilities was not the proximate cause of the shortages in unit organizational property. ...
ARMY | BCMR | CY1996 | 9605969C070209
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....
ARMY | BCMR | CY1997 | 1997023679C070209
It further found that the applicant was not liable as he was not present at the time and it could not be determined whether the property was on hand when the former commander cut the lock on the supply room door and began distributing property in preparation for annual training. The ROS which found the applicant liable for $1,885.20 worth of missing property was improperly conducted and reached an inappropriate conclusion regarding the applicants financial liability. RECOMMENDATION: That...
ARMY | BCMR | CY1997 | 1997023679
The applicant states that at the time of the alleged loss of Government property, he was hospitalized and not present for duty. The applicant’s military records show that, at the time of the loss, he was a supply specialist in the Puerto Rico Army National Guard. The advisory opinion rendered by the National Guard Bureau recommended that the applicant be relieved of all financial liability.
ARMY | BCMR | CY1996 | 9607075C070209
During the period 15 June to 22 July 1994, a 100 percent inventory of the applicants property was conducted pursuant to a change of primary hand receipt holders. The first of the surveys (ROS 02-94) recommended that the applicant not be held financially liable because of serious faults in maintaining property records, and various inaccuracies caused by the trading of inoperable items for new equipment without updating accountable records. The USALIA advisory opinion recommends granting...
ARMY | BCMR | CY1996 | 9608842C070209
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 for which a soldier has personal responsibility. Although the applicant may have been responsible from an operational standpoint of coordinating movement of platoon equipment from one area of the Reserve Center to another, this cannot be construed to...
ARMY | BCMR | CY2001 | 2001051477C070420
On 24 March 1999, the applicant was officially notified that he was being recommended for financial liability to the United States Government in the amount of $475.40 for losses investigated through a ROS. Chapter 3 of this regulation, states in pertinent part, that the Army, by law, may pay claims for amounts due to the applicants as a result of correction to military records; however, the Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in...
ARMY | BCMR | CY1996 | 9609617C070209
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. He held the applicant jointly responsible...