2. The applicant requests that he be relieved of financial liability in the amount of $2,738.00 imposed by Report of Survey (ROS) 91-018, and that all moneys collected be refunded to him.
3. The applicant is a Major serving on active duty in the Regular Army. In 1990, he was a Captain assigned to an Infantry battalion in Germany with duty as a company commander. He completed his command tour in December 1990 and was reassigned to Fort Benning, Georgia. Because of time constraints, it was not possible to complete a joint inventory of all unit property with the incoming commander, therefore the applicant assigned a representative to finish the inventory. Because of pressing mission requirements, the new commander signed for the unit property before actually completing the inventory. When he did complete the inventory, tool kit shortages in the amount of $14,447.87 were identified.
4. An ROS was initiated on 8 May 1991 and a survey officer appointed. Upon completion of his investigation, the survey officer found that the required joint inventory between outgoing and incoming commanders was not accomplished, however the applicant provided a representative (a hand receipt holder) to accompany the new commander during the inventory. He also found: that the new commander used an outdated supply catalog to inventory unit tool kits rather than the actual hand receipts; that the inventory took far greater than the time stipulated by regulation; that problems with property accountability had been identified prior the applicants assumption of command in 1989; that the applicant had relieved his supply sergeant in January 1990 because of this problem. 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.
5. The ROS appointing/approving authority disagreed with the survey officer, indicating that the incoming commander had identified shortages, but was instructed by the battalion commander [the appointing/approving authority] to initiate the ROS at a later date. He determined that the incoming commander should not have signed for the property without properly inventorying it, but found the applicant financially liable for the losses.
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 cited irregularities with the survey process and faulty conclusions on the part of the survey officer. For example, the incoming commander could not have been responsible for the losses which occurred prior to his assumption of command; losses were reported prior to the applicant taking command and, although he was remiss in not resolving the shortages, this failure was not the proximate cause of the losses. Finally, the USALIA found that the applicant was denied due process when the appointing/approving authority failed to notify him that he was changing the survey officers recommendations.
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 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 supported by facts, nor were his recommendations in accordance with pertinent regulations.
2. There were shortages noted before the applicant assumed command in 1989. Six months after assuming command, he relieved his supply sergeant for his failure to account for unit property. Although he was remiss in not taking action to account for the missing property, this failure was not the proximate cause of the losses.
3. The USALIA advisory opinion recommends granting relief from financial liability. It cites the improperly conducted ROS, the lack of due process, and the insupportable conclusions drawn by the survey officer.
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 91-018 in the amount of $2,738.00, and that all moneys collected from him be refunded.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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 | 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 | CY1996 | 9608154C070209
APPLICANT STATES: That the ROS contains procedural errors in that the ROS officer appointed to conduct the survey was a captain, as was the applicant; the ROS was not completed within the prescribed 30 day time frame; the survey was processed for collection before his request for reconsideration was completed. DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory...
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 | 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 | 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 | CY1995 | 9506602C070209
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. His deteriorating physical condition severely hampered his ability to perform his duties as a supply sergeant. The ROS was improperly conducted and the survey officers conclusions were not always supported by facts.
ARMY | BCMR | CY2002 | 2002081590C070215
The incoming commander stated that he found approximately $5,000 worth of the missing property, including non-expendable tools and the computer monitor. The opinion states the ROS was not properly completed; that statements show the losses occurred before the applicant signed the hand receipt; that key personnel were not interviewed; that the issue of command-directed 100% inventories of all sets, kits, and outfits were never accomplished; and the applicant wasn't supported or given...
ARMY | BCMR | CY1995 | 9506508C070209
APPLICANT REQUESTS: That he be relieved of financial liability in the amount of $1,779.00 imposed upon him by Report of Survey (ROS) MA-81-92 for the loss of two word processors and a printer valued at $15,580; that any moneys previously collected from him be returned. DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded: 1. Although...