APPLICANT REQUESTS:  That he be relieved of financial liability in the amount of $849 imposed by Report of Survey (ROS) 38-95, and that all moneys already collected to satisfy that debt be refunded.

APPLICANT STATES:  That the ROS contains procedural errors in that the ROS officer appointed to conduct the survey was a captain, as was the applicant; the ROS was not completed within the prescribed 30 day time frame; the survey was processed for collection before his request for reconsideration was completed.  In addition, the ROS contained the following substantive errors:  negligence was not proven; and his actions were not shown to be the proximate cause of the losses.

COUNSEL CONTENDS:  NA

EVIDENCE OF RECORD:  The applicant's military records show:

He was the company commander of A Battery, 5th Battalion, 5th Air Defense Artillery at Camp Casey, Korea, during a 1 year period during the 1994-1995 time frame.  Upon his assumption of command, he inventoried and signed for all unit property, to include the missing items, one boresight kit and two optical sight bores.  Available documentation shows that the missing items were on-hand and located in the unit supply room, having been turned-in in May and July 1994.

Following his assumption of command, there were platoon level change-overs which required inventories of platoon sub-hand receipts.  After these inventories, the applicant was apprised of the fact that the platoons were short these basic items of issue (BII) for their M2A2 fighting vehicles.  On 24 March 1995, the applicant, himself, conducted a cyclic inventory of M2A2 fighting vehicles and indicated no discrepancies.

On conducting a change of command inventory upon his departure from Korea, the shortages were made a matter of record.  On 21 October 1995, the applicant initiated an ROS.  This was forwarded to the accountable officer, who received it on 23 October 1995 and passed it to the approving/appointing authority who, on 30 October 1995, directed that further investigation was warranted.  On that date, a survey officer (SO) was appointed and, per Army regulation (AR), was given 30 days to complete an investigation into the losses.

The SO, also a captain, was approximately 3 years junior to the applicant [AR 735-5 requires the survey officer to be senior to anyone against whom liability may be recommended].  His investigation revealed that the missing property was turned-in to the unit Supply Room in May and July 1994.  During the August-September 1994 time frame, an NCO noticed some of the property in the Supply Room, inquired about it, and was told it was being “taken care of.”  Later, there was a change of supply sergeants and, by the applicant’s own admission, some supply documents were lost during the transition.  The SO cited the applicant for negligence in not insuring that turn-ins were accomplished and recommended that he be held financially liable for the missing property for which he had command and direct responsibility.

The applicant was notified that he was being recommended for financial liability in the matter of ROS #38-95 and, on 28 December 1995, he offered a rebuttal which was considered and denied.  He was then notified by memorandum, dated 5 February 1996, that financial liability had been assessed against him and he was apprised of his right to request reconsideration within 30 days.  On 28 February 1996, the applicant, now stationed in the United States, mailed his request for reconsideration to his former unit in Korea.  It is unclear when that request was received, but it and the entire ROS packet was reviewed by a legal advisor on 3 May 1996 who found the ROS legally sufficient and recommended denial of the request for reconsideration.  That same day, the appellate authority denied the applicant’s request for reconsideration.

On 31 March 1996, $849 was withheld from the applicant’s pay in order to satisfy the indebtedness incurred as a result of ROS #38-95.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the US Army Logistics Integration Agency (USALIA).  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested.  Further, in a telephone conversation, the proponent for AR 735-5 stated that the only reason for requiring that a junior officer not normally conduct an ROS investigation which might result in financial liability against a senior officer is to protect the junior officer against reprisal.  It was pointed out that the AR permits exceptions to this policy and the proponent stated that having a junior officer investigate a senior would not be a fatal flaw to the ROS.

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.

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.  Command responsibility is the obligation of a commander to ensure that all Government property within his or her command is properly used and cared for, and that proper custody and safekeeping of Government property are provided.  It is evidenced by assignment to command at any level and includes:  ensuring the security of all property in the command; observing subordinates to ensure that their activities contribute to the proper custody, care, use, and safekeeping of all command property; enforcing all security, safety, and accounting requirements; and taking administrative or disciplinary measure when necessary.  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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  As the company commander and hand receipt holder for the property in question, the applicant had both command and direct responsibility for its safekeeping.  Having been apprised of shortages of the property in question within his platoons and knowing that the property was last accounted for in his supply room, he was negligent in not determining the status of the property and taking action to properly account for it.  This negligence created a climate which fostered poor accountability and led to the losses.

3.  Although the survey officer was not senior to the applicant, as required by the pertinent AR, his lack of seniority is not a fatal flaw in the ROS process.  Likewise, the fact that the ROS was processed for collection prior to action on the applicant’s request for reconsideration is probably due to the request for reconsideration arriving after the imposed deadline.  In any event, the request was reviewed and considered by the appellate authority.

4.  The USALIA advisory opinion recommends denying relief.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                                       GRANT          

                                       GRANT FORMAL HEARING

                                       DENY APPLICATION




						Karl F. Schneider
						Acting Director