2. The applicant requests that the findings of negligence and the assessments of financial liability imposed by Reports of Survey (ROS) 02-94 and 12-94 be overturned and that all moneys collected from him be returned.
3. The applicant is a retired major. At the time of the contested ROSs, he was on active duty serving with the US Army Information Systems Command, Fort Huachuca, Arizona. On 26 August 1993, as a result of personnel strength reductions, he became a secondary hand receipt holder for organizational property belonging to the Headquarters Commandant.
4. 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. Shortages were discovered and the two contested ROSs were initiated on 29 July 1994 and 22 November 1994. 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 survey officers recommendation was not accepted by the ROS appointing authority who authored a statement which acknowledged these problems, but blamed the applicants failure to conduct an inventory as the proximate cause for the losses. The appointing authority argued that an inventory would have identified the poor accountability practices and, therefore, the property would not have been lost. A second survey officer was appointed to conduct an investigation which supported the appointing authoritys viewpoint. The second ROS (12-94) was initiated 5 months after the first ROS and reiterated the appointing authoritys argument concerning the applicants negligence.
5. The applicant rebutted the findings of the contested ROSs and sought reconsideration of the decisions to hold him financially liable, but was denied. The ROSs were approved and the applicant was held financially liable in the amounts of $1,292.40 for ROS 02-94 and $2,670.30 for ROS 12-94, for a grand total of $3,962.70, the equivalent of 1 months basic pay.
6. In the processing of this case, a staff advisory opinion was obtained from the US Army Logistics Integration Agency (USALIA). While opining that the applicant was negligent in failing to conduct an inventory when he signed for the property, the USALIA stated that such negligence was not the proximate cause of the losses. The opinion recommends granting relief to the applicant.
7. 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.
8. 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. 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 assigned additional duties as a hand receipt holder for certain organizational property. He signed the hand receipt, but was negligent in not inventorying the property.
2. The applicants negligence was not the cause of the loss of the property; the Property Book Officers failure to keep up with equipment turn-ins and direct exchanges was the primary reason for a lack of accountability.
3. The USALIA advisory opinion recommends granting the applicant relief from 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 applicants 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 imposed by ROS 02-94 and ROS 12-94; and,
b. by refunding to the individual concerned any and all moneys previously collected to satisfy the above liability.
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
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