2.  The applicant requests, in effect, correction of his military records by:  remitting or canceling $2,501.00 in indebtedness assessed against him as a result of Report of Survey (ROS) #25-95; reimbursement for any moneys already collected to satisfy the above indebtedness; and by removal of a general officer memorandum of reprimand (GOMOR) from his Official Military Personnel File (OMPF).

3.  The applicant is a chief warrant officer (CW2) pilot assigned to an aviation unit in Alaska.  On 21 February 1995, he was the co-pilot of a CH-47D Chinook helicopter that had returned to Fort Wainwright Army Airfield after completing a night training exercise.  The applicant was at the controls and was attempting to park his helicopter near the hangar by taxiing into an empty space between two parked Chinooks.  In so doing, the forward blade of the applicant’s aircraft struck the aft blade of one of the parked Chinooks. It was approximately 2230 hours and there was snow on the ground.  The temperature was minus 26 degrees Fahrenheit with a wind chill factor of minus 60 degrees.  Because of the extreme cold, the crew chief and flight engineer did not dismount the aircraft to act as ground guides as required by standard operating procedures (SOP).  The applicant’s unit commander was notified immediately of the accident.

4.  Upon learning of the accident, the applicant’s brigade commander ordered an investigation under the purview of Army Regulation (AR) 15-6.  He appointed an investigating officer (IO) who gathered statements, took photographs, drew scale diagrams, and inspected the damage.  On 17 March 1995, the IO concluded his investigation by recommending the applicant and a second pilot be held jointly liable for the damage to both aircraft.  He also recommended that each individual receive a letter of reprimand.

5.  In his report, the IO incorrectly stated that the aft blade of the applicant’s helicopter struck the aft blade of the parked helicopter and that the applicant was hovering, not taxiing, the aircraft.  In spite of the factual errors, the brigade commander approved the investigation and the IO’s recommendations.

6.  In order to assess financial liability against the applicant, an ROS was initiated on 26 April 1995 by the applicant’s battalion commander.  Although an ROS IO was appointed, the brigade commander’s AR 15-6 investigation served as the basis for the ROS and no other investigation was conducted.  The completed ROS, with the AR 15-6 IO’s findings and recommendations, was forwarded to the battalion commander and approved.  The applicant and another warrant officer pilot were notified by memorandum of the battalion commander’s intention to recommend they be held financially liable. However, before actually receiving notification of this intent, both individuals received approved charges of financial liability against them.

7.  The amount of financial liability for the damaged rotor blades was based on replacement costs for the two blades, not on an estimated cost for repair of the damaged blades.  When the applicant brought this to the attention of the approving authority, he dismissed the argument citing the high cost of removal and installation of new blades as being greater than one month’s salary.  The applicant’s rebuttal and request for reconsideration was dismissed and he was assessed 1 months’ basic pay.  On 14 December 1995, the applicant also received a GOMOR for taxiing his aircraft without the use of ground guides as prescribed in the operator’s manual.  The GOMOR was placed in his OMPF.

8.  In the processing of this case, a staff advisory opinion was obtained from the United states Army Logistics Integration Agency (USALIA).  The USALIA cites the fact that the brigade commander approved an AR 15-6 investigation which was used as the basis for the ROS.  In effect, the battalion commander’ superior, who was acting as the appeal authority, had already found the applicant financially liable before the ROS was even conducted.  The USALIA advisory opinion supports granting relief based on factual and procedural errors.

9.  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.

10.  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.  Personal responsibility is defined as the obligation of a person to exercise reasonable and prudent actions to properly use, care for, and safeguard all Government property in his or her possession.  It applies to all Government property issued for, acquired for, or converted to a person's exclusive use, with or without receipt.  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.  Although it was bitterly cold on the night in question, the applicant was wrong for not deploying ground guides before attempting to taxi his aircraft between two parked Chinook helicopters.

2.  The ROS was based on an AR 15-6 investigation previously ordered and approved by the brigade commander.  This had the effect of predetermining the outcome of the ROS.  It also meant that the applicant did not have an impartial higher authority to whom he could appeal.

3.  The ROS had several factual errors which, although not fatal, do cast doubt on the competence of the AR 15-6 investigation upon which the ROS is based.

4.  The GOMOR is a valid reprimand for failing to comply with the SOP for taxiing near other aircraft.  However, it appears the author did not give adequate consideration to the extreme weather conditions being faced at the time.  When this factor is viewed in mitigation and extenuation, it may be appropriate to remove the GOMOR from the performance portion of the applicant’s OMPF and place it on his restricted fiche.

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:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the individual concerned is relieved of all financial liability assessed against him by ROS #25-95 and that all moneys collected from his military pay be refunded; and

	b.  by transferring the 14 December 1995 GOMOR from the performance portion of the individual’s OMPF to the restricted fiche.

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