2. The applicant requests that he be relieved of financial liability assessed against him in the amount of $1,599.90 by Report of Survey (ROS) APLE-SB-05-94 for damage to an MK-19, 40 MM Grenade Machine Gun. He states that he was not negligent in his efforts to free a jammed charging handle and that he did not use excessive force.
3. The applicant is a staff sergeant (SSG) serving on active duty. On 15 February 1994, he was assigned to the 1st Platoon, 25th Military Police Company, Schofield Barracks, Hawaii. Following a training exercise, another SSG was reassembling an MK-19 that had been disassembled for cleaning. When he attached the left charging handle, it did not seat properly, became jammed, and would not move forward or backward. After trying to free the jammed part, the SSG took the weapon to the applicant for help. Using only his hands, the applicant pulled on the charging handle until he freed the jammed part. When he removed it, he noticed that it appeared damaged and instructed the SSG to take the weapon to the unit armorer.
4. The unit armorer stated that the weapon was brought to him with the left charging handle detached. Upon inspection, the armorer determined that the weapon had suffered serious damage which was beyond his capability to repair, so he sent it to support maintenance. On 16 March 1994, an estimated cost of damages (ECOD) was performed which set the amount of damage at $5,268.29. On 16 March 1994, the applicants commander initiated as ROS.
5. An investigating officer (IO) was appointed and an investigation was conducted into the circumstances surrounding the damage to the MK-19. The IO determined that the applicant and the SSG should be held jointly accountable for the damage because they failed to show due care when trying to free the jammed part. The IO recommended that each individual be assessed 1 months pay, in the applicants case $1,599.90.
6. The ROS was properly processed and the applicant was notified of the commanders intent to hold him liable. He exercised his rights to rebuttal and reconsideration; however, his efforts were to no avail and liability was continued. After having exhausted all available means of appeal, the applicant submitted a request to this Board. With his request, he provided two statements from soldiers who witnessed the SSG use a piece of metal to strike the weapon and his booted foot in an attempt to kick the charging handle free.
7. In the processing of this case, a staff advisory opinion was obtained from the US Army Logistics Integration Agency (USALIA). It contains no information, advice or recommendation which would constitute a basis for granting the relief requested. The USALIA opinion cites a discrepancy in the two witness statements mentioned above; that being that neither statement reflects that the charging handle was ultimately freed by the applicant and the SSG.
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 negligence as simple or gross, with simple negligence being 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 to be expected of a reasonably prudent person, all circumstances being considered, and accompanied by a reckless, deliberate, or wanton disregard for the foreseeable consequences of the act.
CONCLUSIONS:
1. The applicant was asked by the SSG to assist in freeing the jammed charging handle on the MK-19, 40 MM Grenade Machine Gun. He states that he freed the jammed part by pulling on the charging handle with his hand. When the part came free, the applicant noticed that it was damaged and told the SSG to take the weapon to the armorer.
2. When the armorer received the weapon from the SSG, he stated that the charging handle was presented to him along with the rest of the weapon [that is, it was detached from the weapon].
3. Two soldiers made sworn statements attesting to the fact that the SSG beat the weapon with a metallic object and also sat down behind the weapon and forcefully kicked the charging handle with his shod foot in an attempt to free the part. The witnesses further state that, after applying this extreme force to the weapon, the SSG asked the applicant for his help and he was observed by the witnesses to use his hand in an attempt to free the jammed part. They did not state that they saw the applicant succeed in this endeavor.
4. The USALIA opinion states that, because everyone admits that the part was ultimately freed, the two supportive witness statements are of dubious value because they do not mention this important fact. However, the fact that these statements describe the SSG using unreasonable measures and extreme force prior to seeking the applicants help suggest that the SSG was solely responsible for the damage. That the witnesses did not see the applicant ultimately succeed in removing the jammed part is irrelevant.
5. In view of the foregoing findings and conclusions, and notwithstanding the advisory opinion of the USALIA, in the interest of justice and equity, it would be appropriate to correct the applicants records as indicated below.
RECOMMENDATION:
That all of the 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 APLE-SB-05-94 in the amount of $1,599.90, 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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