2. The applicant requests, in effect, that he not be held financially liable for the damage caused by the fire he inadvertently started in a tent.
3. He states that the fire was started by an explosion of motor gasoline (MOGAS) fumes caused when he opened a gas can improperly marked as kerosene and poured the mismarked fuel into a paper cup. He contends that he was only following instructions at that time and he should not be held accountable for the fire damage since the gas can contained the wrong fuel.
4. His military records show that he enlisted in the Regular Army in pay grade E-1 for 4 years on 29 June 1993. He was awarded the military occupational specialty of infantryman and was advanced to pay grade E-2.
5. On 22 October 1994 an investigation was initiated under Army Regulation 15-6 into the circumstances surrounding a tent fire which occurred on that date. That investigation was completed on 10 November 1994. The investigating officer (IO) found that on 22 October 1994 a fire destroyed a general purpose small tent that was serving as a company command post. Five soldiers were inside the tent, three E-4s and two E-2s one of which was the applicant. The proximate cause of the fire was determined to have been the applicants pouring MOGAS from a gas can improperly marked as kerosene into a paper cup in order to refuel a burning kerosene heater inside the tent. After the applicant poured the gas into the cup, he attempted to turn off the heater. At that time the fumes of the MOGAS were ignited by a propane lantern that was lit and hanging above the heater, resulting in the damage or destruction of the tent and its contents, and in the applicant receiving a minor burn to one hand. The IO concluded that the applicant did not know that the can contained MOGAS and that he had assumed that it contained kerosene as it was marked. However, the IO determined that the applicant was negligent in starting the fire in that common sense should have prevented him from attempting to refuel a burning heater, while a propane lantern was lit, in an enclosed area. The IO recommended that the applicant be held financially responsible for the destruction of the equipment. The IO also determined that the senior enlisted soldier in the tent had demonstrated poor control over his subordinates by his failure to stop the applicant from attempting to refuel the heater. The IO also held the company commander and first sergeant culpable in that they had failed to provide instructions, guidance and directions on the use of the kerosene heater to the individuals who were required to use that appliance in the tent. The IO recommended that the commander and first sergeant be counseled on their failure to provide proper supervision to their soldiers. The IO set the cost of the military property that was destroyed or damaged at $46,167.41, not including the loss of personal equipment.
6. The applicants records are silent on the disposition of the IOs findings and recommendations.
7. The applicant was honorably discharged on 16 December 1994 in pay grade E-2 by reason of physical disability with $1,866.60 in severance pay. He had completed 1 year, 5 months and 18 days of active duty.
8. In the processing of this case the staff of the Board found it necessary to contact the Defense Finance and Accounting Service (DFAS). The DFAS stated that the applicants finance records show that he was charged with $933.30 in September 1995 as a result of a report of survey. There is no record of the applicant making any payments on that debt.
9. Department of Defense Pay Manual (DODPM), paragraph 70721, Remission and cancellation of indebtedness-enlisted members, states that an enlisted soldier may apply for remission of indebtedness to the U.S. Government. However, no debt may be remitted after the soldier is discharged, retired or released from active duty.
10. Army Regulation 735-5, Policies and Procedures for Property Accountability, paragraph 13-42, Liability limits, states that soldiers who are determined liable for the loss or destruction of Government property not personally issued to them and not for use in their living quarters, are limited in liability to an amount equal to 1 months basic pay at the time of the loss, or the actual amount of loss to the Government, whichever is less.
CONCLUSIONS:
1. The applicant was directed to perform a function for which he had not received training, training which his commander should have insured he had received prior to his being allowed to fuel the heater. In addition, the gas can was improperly marked as kerosene by persons other than the applicant.
2. Based on the applicants lack of training through no fault of his own, his lack of experience, and the improper marking on the gas can, the Board is of the opinion that he should not be held responsible for the damage caused by that fire.
3. There is no evidence that either misconduct or gross negligence on the part of the applicant caused the fire.
4. In addition, since the applicant was billed for the damages caused by the fire after his separation, which appears to have been at the rate of 1 months base pay, he could not request remission of that indebtedness. The Board considers that a significant loss of procedural safeguards.
5. In view of the foregoing, the applicants records should be corrected as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by remitting any and all indebtedness of the individual concerned based upon the 22 October 1994 Report of Proceedings by Investigating Officer/Board of Officers.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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