2.  The applicant requests that he be relieved of any and all financial liability assessed against him by Reports of Survey (ROS) T-10-94, T-11-94, T-12-94, and T-13-94 for the loss of organizational property.

3.  The applicant states that, as a result of various command inspections which found major deficiencies in almost every area of unit operations, he was relieved of his duties as the Unit Readiness NCO in April 1993.  Although two of the ROS’s dealt with missing organizational equipment identified as a result of an April 1993 inspection, he was not the Supply Sergeant and had no responsibility for supply accountability.  Further, two of the ROS’s dealt with shortages identified during an October 1993 inspection, an inspection which occurred well after his relief and reassignment.  He adds that he had no responsibility for the missing equipment and his actions and/or omissions were not the proximate cause of any of the losses.

4.  In early 1993, the applicant was a full-time AGR (Active Guard/Reserve) staff sergeant (E-6) assigned to Detachment 1, Battery A, 4th Battalion, 200th Air Defense Artillery, New Mexico Army National Guard (ARNG).  An AGR Manning Roster prepared on 30 June 1992 and provided by the applicant shows he occupied the position as Unit Readiness NCO while another AGR NCO occupied the position as Administrative NCO/Supply Sergeant.  The detachment was commanded by a first lieutenant while the company was commanded by a captain.  A command inspection in February 1993 identified serious problems in property accountability.  Later, in April 1993, shortages were identified as a result of a week long inventory of unit property.  On 29 April 1993, the applicant’s commander relieved him of his duties in the unit because he was the senior AGR NCO and should have provided better supervision of the supply operation.

5.  As a result of identified shortages, two ROS’s (T-10-94 and T-13-94) were prepared on 26 July 1993, some 90 days after the shortages were discovered.  Nothing more was done until 7 October 1993 when a 100% inventory of unit property was conducted which identified additional shortages.  On 7 October 1993, two more ROS’s (T-11-94 and T-12-94) were prepared.  These ROS’s, together with the original two ROS’s were submitted to the accountable officer who, on 19 January 1994, recommended action be taken to appoint survey officers to investigate the losses reported therein.

6.  The circumstances surrounding the losses recorded on ROS T-11-94 were investigated by a captain who improperly identified the applicant as the Readiness NCO/Supply Sergeant.  He recommended that the applicant be held jointly liable for the losses along with the detachment commander and the company commander.  ROS’s T-10-94 and T-12-94 were not investigated, but merely incorporated the investigative results of ROS T-11-94.  ROS-T-13-94 was investigated by a major who also improperly identified the applicant as the Readiness NCO/Supply Sergeant and found that his simple negligence led to a lack of supply discipline (the same investigative findings presented in ROS T-11-94).  He recommended financial liability for the applicant and the detachment commander, but not the company commander.

7.  In the processing of this case, an advisory opinion was obtained from the US Army Logistics Integration Agency (USALIA).  The USALIA opined that, based upon his signature on several supply-related documents,  the applicant was most probably working as the supply sergeant, or, at least, was supervising the supply sergeant and was, therefore, guilty of simple negligence in the losses.  However, the USALIA recommended that he be relieved of financial liability because of the length of time it took to complete the ROS’s.  The first surveys were initiated on 26 July 1993 and took until 15 December 1994 to complete.  When he was finally notified of his liability on 6 January 1995, it was unreasonable to expect that he could produce the necessary evidence to prove that he acted responsibly.

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.  Willful misconduct is defined as any intentionally wrongful or unlawful act dealing with the property concerned.  Supervisory responsibility is the obligation of a supervisor to ensure that all Government property issued to, or used by, his or her subordinates is properly used and cared for, and that proper custody and safekeeping of the property are provided.  It is inherent in all supervisory positions and is not contingent upon signed receipts or responsibility statements.  Responsibilities include:  providing proper guidance and direction; enforcing all security, safety, and accounting requirements; and maintaining a supervisory climate that will facilitate and ensure the proper care and use of Government property.  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 was the senior, full-time AGR NCO in the unit.  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.

2.  The applicant’s failure to properly discharge his supervisory responsibilities was not the proximate cause of the shortages in unit organizational property.  The ineptitude of the supply sergeant and the unit chain of command was the proximate cause of the shortages.

3.  It took 18 months for the command to finish the ROS’s; this is 10 months longer than permitted by regulation.  This delay hindered the applicant’s ability to rebut the charges against him and is the reason why the USALIA recommends relieving him of financial liability.

4. 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 relieving the individual concerned of financial liability in the amount of $1844.70, imposed as a result of ROS’s T-10-94, T-11-94, T-12-94, and T-13-94, and by refunding any moneys previously collected to satisfy that liability.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON