2.  The applicant requests that he be relieved of financial liability in the amount of $2,047.24 assessed against him by Reports of Survey (ROS) # S-16C-14-95,
S-16C-16-95, and S-16C-17-95 for the loss of Government property.

3.  The applicant is a sergeant first class (SFC).  At the time of the ROS’s, he was assigned as the NCO-in-charge (NCOIC) of a squadron supply (S4) section. During the period 17 October to 23 November 1994, the applicant and a captain conducted a 100% joint inventory of all property for which the applicant was the primary hand receipt holder; this was in preparation for the applicant’s departure and the captain’s assumption of responsibility for those hand receipts.  As a result of the inventory process, shortages were discovered and the contested ROS’s were initiated to resolve them.

4.  ROS #S-16C-14-95 was initiated to account for shortages to Table of Distribution (TDA)/Installation property in the form of components to a General Mechanics Tool Kit.  Losses of $2697.05 worth of tools were determined to be negligence between the applicant and his sub-hand receipt holder, also an SFC, and the failure of the applicant to conduct periodic inventories of the tool kit. The applicant was assessed $1357.23 as his portion of the losses because he failed to conduct periodic inventories and allowed soldiers to sign for major components without providing detailed listings of those components.

5.  ROS #S-16C-16-95 was initiated to account for shortages to installation property in the form of bed linen.  Losses totaling $171.23 were determined to be the result of simple negligence on the part of the applicant in not properly supervising supply operations.  He was assessed the full $171.23.

6.  ROS #S-16C-17-95 was initiated to account for shortages to installation property in the form of radios, dictating machines compasses, etc..  These items were supposedly located in a supply vault and not issued to soldiers.  It was determined that accountability had been lost due to poor records keeping on the part of the applicant.  The total loss was established at $8217.70 and the applicant was assessed $518.78.  Total liability assessed against the applicant for all three ROS’s was $2047.24 [this is within the applicant’s monthly basic pay of $2152.20].

7.  In the processing of this case, a staff advisory opinion was obtained from the  US Army Logistic Integration Agency (USALIA) which addressed each ROS separately.

	a.  In ROS #S-16C-14-95, the USALIA opined that the survey officer was incorrect in saying that the applicant failed to conduct periodic inventories pointing to hand receipt updates on 1 March and 1 September 1994, and also pointing out that the second SFC was signed for the property on a sub-hand receipt.  The USALIA recommended that the applicant be relieved of the $1357.23 in financial liability which was imposed by this survey.

	b.  The USALIA pointed out that the applicant was the primary hand receipt holder for property listed on ROS #S-16C-16-95.  The absence of any sub-hand receipts for this property pointed to the applicant’s negligence and is sufficient grounds to maintain the $171.23 financial liability assessment against him.

	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.  However, the USALIA found that the survey officer did not properly depreciate the missing items and recommended that the applicant be held liable for only $484.89 vice $518.78.

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.  Direct responsibility is the obligation of a person to ensure that all Government property for which he or she has receipted for, is properly used and cared for, and that proper custody and safekeeping are provided.  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 primary hand receipt holder for the property listed on all three ROS’s; however, he had properly sub-hand receipted the property listed on ROS #S-16C-14-95 to another NCO.  The sub-hand receipt was periodically updated, indicating that someone--the applicant or the sub-hand receipt holder--conducted periodic inventories.  Based on the above, it would be unjust to hold the applicant financially liable for even a portion of that loss.

2.  Because the applicant did not sub-hand receipt the property listed on ROS’s # S-16C-16 & 17-95, he retained direct responsibility for that property.  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.  However, in assigning financial liability, the survey officer apparently did not depreciate the property listed on ROS #S-16C-17-95, thereby causing too large an amount of money to be withheld from the applicant’s pay.

3.  The USALIA recommends that the applicant be relieved of financial liability assessed by ROS #S-16C-14-95, and that the amount of liability imposed by ROS #S-16C-17-95 be reduced through depreciation from $518.78 to $484.89.  The USALIA recommends that the financial liability assessed in ROS #S-16C-16-95 remain unchanged.

4.   In the interest of justice and equity, it is recommended that the applicant’s records be corrected as indicated below.

RECOMMENDATION:

1.  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.  by reducing the amount of financial liability imposed by ROS #S-16C-17-95 from $518.78 to $484.89;

	c.   by continuing financial liability in the amount of $171.23 imposed by ROS #S-16C-16-95, for a grand total of $656.12, and;

	d.  by refunding to him the difference in any moneys already collected up to $1391.12, based on the original total of $2047.24.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

                                GRANT AS STATED IN RECOMMENDATION
  
                                GRANT FORMAL HEARING

                                DENY APPLICATION




		                                           
		        CHAIRPERSON