2. The applicant requests that all financial charges against him resulting from report of survey #5055-0001 be dropped and that he be found not negligent. The report of survey originally included exhibits A through G; only exhibit A is included with this application.
3. The applicants military records show that he was born on 17 July 1938. On 18 September 1959, he enlisted in the Army National Guard and had continuous Reserve Component service until his retirement.
4. The applicant was the cable platoon sergeant, pay grade E-7, for his unit during an Annual Training exercise at Fort Indiantown Gap, PA during the period 11 - 25 June 1994. During the breakdown of the training site in preparation for return to the home station, the applicant discovered one reel of telephone cable, unit price $505.00, was missing.
5. The applicant apparently remembers reporting the loss to the supply sergeant and to his company commander while still at the training site. The company commander remembers the applicant notifying him of the loss after return to the home station; the supply sergeant remembers the applicant notifying the company commander and himself at the training site.
6. An inventory of all equipment was made during the next scheduled drill in August 1994; however, the cable was not located. The cable may have been recovered by a unit with which the applicants was co-located at the training site.
7. On 15 May 1995, the applicant was assigned to the Retired Reserve.
8. On 2 June 1995, the Troop Command commander made the decision that further investigation of the loss was warranted and appointed a report of survey officer.
9. On 24 August 1995, the surveying officer determined that the loss of the cable was the direct result of the applicants failure to properly inventory all assigned equipment. He states: All documentation shows that the Chain of Command was not notified until the unit returned to Home Station. Had they been notified immediately, inventories of the other units could have been conducted prior to departure for Home Station. He found the applicant financially liable in the amount of $351.00.
10. Exhibit A of the report of survey is a sworn statement from the supply sergeant. He states:
we were on site 42 approximately 0700 hours.
stated to the cdr in front of me that he was missing one reel of WF-16. The cdr then stated that our unit was departing site 42 in two hours, and an inventory/shakedown would be impossible to do
.
11. The report of survey apparently was never referred to the applicant for review or comment before the approving authority approved the findings on 22 November 1995.
12. Army Regulation 735-5 prescribes basic policies and procedures in accounting for Army property. Chapter 13 of the regulation 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. Negligence is defined as simple or gross, with simple negligence being the failure to act as a reasonable 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 reasonable 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 an any intentionally wrongful or unlawful act dealing with the property concerned. Direct responsibility is defined as the obligation of a person to ensure that all Government property for which he has receipted for is properly used and cared for and that proper custody and safekeeping is provided. Command responsibility is the obligation of a commander to ensure that all Government property within his command is properly used and cared for, and that proper custody and safekeeping is 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 of damage would not have occurred.
13. Army Regulation 735-5 also states that the survey officer will give any individual, against whom he or she makes a recommendation of financial liability, a chance to examine the report of survey after the findings and recommendations have been reported on the DA Form 4697, and the opportunity to make a rebuttal statement in his/her behalf; that the survey officer will notify the individual by memorandum of his/her rights; and that the survey officer will ensure that the individual completes blocks 30 through 32b and will attach a copy of the memorandum explaining the individuals rights as an exhibit to the report of survey.
14. In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau, Army Logistics Division. The opinion supports the applicant. It found the investigation to contain inconsistencies in the sworn statements, which clearly show that the applicants conduct was not the proximate cause of the loss of government property and that there does not exist sufficient documentation to support a case of negligence in holding him financially liable for the loss.
CONCLUSIONS:
1. Given the above findings and contradictory sworn statements, there is sufficient doubt that the applicants conduct was the proximate cause of the loss of the government property. The applicant was not given an opportunity to rebut the findings before they were approved and he was found financially liable for the loss.
2. The advisory opinion supports the applicant and recommends relieving him of financial liability for this loss.
3. In view of the foregoing, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by showing that: the applicant was relieved of pecuniary liability assessed by report of survey #5055-0001 in the amount of $351.00 and that any monies collected from the applicants military pay or retired pay be refunded.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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