2.  The applicant requests that he be relieved of financial liability in the amount of $4,291.50 (1 month’s basic pay) imposed against him by Reports of Survey (ROS) 120-33-91 and 120-34-91.

3.  The applicant contends that the subject ROS’s were not completed in accordance with applicable regulations:  that he was never contacted by the SO (surveying officer) for his input into the investigation; that he was not provided with a complete copy of the ROS’s or given the opportunity to rebut the findings; that the appointing/approving authority approved the ROS’s before he [applicant] had the opportunity to submit his request for reconsideration; that the SO was unduly influenced by the command group to find him financially liable; that two ROS’s were initiated for the same loss in contravention of pertinent regulations.

4.  The applicant further states that he was found financially liable because he was determined to have demonstrated simple negligence in caring for the missing property.  He states that he repeatedly argued against imprudent supply procedures foisted upon his unit by higher headquarters.  He also provides copies of command inspections by higher headquarters which found his supply accountability to be excellent.

5.  The applicant is a colonel in the US Army Reserve (Retired).  At the time of the contested ROS’s, he was a lieutenant colonel serving as a battalion commander of a newly activated Military Intelligence battalion with companies in five different states.  The battalion was absorbing various existing units while, at the same time, receiving equipment from several units which had been inactivated.  The battalion was directed to consolidate company property at battalion level, then sub-handreceipt it back to the companies (this was to be accomplished as a paperwork exercise, with no actual transfer or physical inventory of the property).  Further, equipment deemed excess could not be turned-in, but, per instructions from the applicant’s higher headquarters, had to be stored pending a review to determine whether other battalions might need any of it.  There was no secure storage facility available to the applicant’s battalion.

6.  During most of the period of the applicant’s command, his battalion had an inexperienced supply officer (S4) and no S4 NCO.  The battalion’s higher headquarters provided frequent command inspections which always found supply operations to be running in a commendable fashion.  When the battalion finally received an experienced S4 NCO, a 100 percent inventory of battalion property was undertaken.  This inventory found vast shortages of various organizational property and two ROS’s were initiated based on the class, or type, of property (table of organization and equipment, TOE, and organization clothing and individual equipment, OCIE).

7.  The appointing/approving authority for the ROS’s appointed an SO who undertook an investigation into the shortages.  He did not interview the applicant, but did interview battalion S4 personnel.  When he completed his investigation, the SO submitted it to the appointing/approving authority recommending that the applicant and his S4 officer share financial liability for the missing property while acknowledging all of the extenuating and mitigating circumstances identified above.  After deductions for depreciation, losses on ROS 120-33-91 were set at $11,986.33 and losses on ROS 120-34-91 were set at $16,308.42.  The applicant’s basic pay was divided in half and $ 2145.75 was applied to each ROS.  The same thing was done with the S4 officer’s (a captain) basic pay.

8.  Although required by Army Regulation 735-5, the applicant was not afforded the opportunity to rebut the ROS findings.  He was sent a copy of the basic ROS, DA Form 4697, without exhibits or attachments, when he was notified that he was being held financially liable.  He acknowledged receipt of the notification and sought reconsideration by the appointing/approving authority.  His request for reconsideration was denied [although the S4 officer’s request for reconsideration was granted and he was relieved of financial liability].

9.  Having been held financially liable, the applicant sought answers from the SO.  On 25 August 1991, he met with the SO who basically told him that he was directed by the commanding general to find the applicant, as a commander, liable.  He admitted to the applicant that, had he not found him liable, he would have been told to redo the ROS’s.

10.  Army Regulation 735-5, chapter 13, 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.

11.  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.  Command responsibility is the obligation of a commander to ensure that all Government property within his or her command is properly used and cared for, and that proper custody and safekeeping of Government property are provided.  It is evidenced by assignment to command at any level and includes:  ensuring the security of all property in the command; observing subordinates to ensure that their activities contribute to the proper custody, care, use, and safekeeping of all command property; enforcing all security, safety, and accounting requirements; and taking administrative or disciplinary measure when necessary.  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 assumed command of a newly activated battalion with companies located in five different states.  He placed the most qualified of his officers in the S4 position and, although he attempted to establish and maintain property accountability, circumstances and directives from his higher headquarters worked against him.

2.  The applicant had command responsibility for all of his unit’s property and he faithfully attempted to discharge that responsibility in a reasonable fashion.  He received positive feedback on his efforts during command inspections from his higher headquarters which found supply operations to be excellent.  It does not appear that he was negligent in the discharge of his responsibilities for property accountability.

3.  The ROS’s were not conducted and processed in accordance with applicable Army regulations; the applicant was not afforded the opportunity to rebut the SO’s findings.  Furthermore, the approving authority approved the survey before the applicant’s request for reconsideration was acted upon and denied.  Finally, based on a conversation with the SO, it appears that there was undue command influence placed on the SO to hold the commander financially liable.

4.  Nothing that the applicant did or failed to do could be attributed as the proximate cause of the losses.

5.  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:

	a.  relieving the individual concerned of all financial liability assessed against him by the contested ROS’s, and

	b.  by refunding to him any moneys already collected to satisfy that liability.

BOARD VOTE:  

                                GRANT AS STATED IN RECOMMENDATION

                               GRANT FORMAL HEARING

                                DENY APPLICATION




		                                             
		        CHAIRPERSON