2. The applicant requests that he be relieved of financial liability in the amount of $676.91 which was imposed against him as a result of Report of Survey (ROS) #46-94 and that all moneys collected to satisfy that liability be refunded.
3. In 1989, the applicant was a sergeant in the New York Army National Guard (ARNG). On 25 September 1989, he separated from the ARNG and enlisted in the US Army Reserve (USAR). At the time he departed his ARNG unit, he contends that he cleared his Organizational Clothing and Individual Equipment (OCIE) hand receipt with the unit supply section, however the supply sergeant did not have time to take his OCIE, so another soldier did it.
4. The applicant continued to serve in the USAR and, in 1991, entered active duty with service in Germany. On 10 March 1994, some 42 months after the applicant departed his ARNG unit, the unit initiated an ROS claiming that he had not turned-in his OCIE when he cleared. No investigation was conducted and the unit used the applicants OCIE hand receipt as evidence. This hand receipt has five signatures in the signature and date columns; the first three appear to be the applicants signature and the last date on which he signed is 5 February 1988. The last two signatures appear different from the first three and there are no dates associated with them. However, the hand receipt does reflect that a showdown inspection was conducted on 6 January 1990, more than 90 days after the applicant left the unit.
5. The ARNG unit attempted to notify the applicant at his last known address, but was unsuccessful. The ROS was approved and forwarded to the Defense Finance and Accounting Office (DFAS) for collection. In late 1994, the applicant began seeing money withheld from his active duty pay to pay off the ROS indebtedness.
5. In the processing of this case, a staff advisory opinion was obtained from the US Army Logistics Integration Agency (USALIA). It recommends that the applicant be relieved of financial liability and points out the extreme tardiness of the ROS and the apparent forgery of the applicants signatures on the OCIE hand receipt. It also points out that the applicants clearance records plainly show that he was leaving the ARNG in order to join the USAR and that the ROS was erroneously processed under the provisions of paragraph 14-4b, Army Regulation 735-5 which refers to soldiers who stop coming to drills and fail to turn-in equipment. The ROS should have been processed under chapter 13 which refers to soldiers who transfer to another component of the Army.
6. 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. 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.
7. 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. Willful misconduct is defined as any intentionally wrongful or unlawful act dealing with the property concerned. Personal responsibility is defined as the obligation of a person to exercise reasonable and prudent actions to properly use, care for, and safeguard all Government property in his or her possession. It applies to all Government property issued for, acquired for, or converted to a person's exclusive use, with or without receipt. 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 applicant received his ARNG commanders signature that he had properly cleared the unit. Four years later, the unit initiates an ROS which hold the applicant liable for missing OCIE; it uses a suspect OCIE hand receipt as the only proof that the applicant failed to turn-in his equipment. The hand receipt is suspect as to the applicants last two signatures and the date of a showdown inspection conducted more than 90 days after the applicants departure.
2. The USALIA advisory opinion recommends granting the applicant relief.
3. 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 of the Department of the Army records related to this case be corrected by relieving the individual concerned of financial liability in the amount of $676.91 imposed by ROS #46-94 and by refunding to him all moneys previously collected to satisfy that liability.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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