2. The applicant requests that he be relieved of financial liability in the amount of $2124.60 imposed against him as a result of Reports of Survey (ROS) #59-94, #140-94, #141-94, and #142-94 for missing Organizational Clothing and Individual Equipment (OCIE), and that all moneys collected to satisfy that liability be refunded.
3. The applicant is a sergeant first class (E-7) in the US Army Reserve (USAR) serving as a unit operations NCO and Reserve Center facilities manager in an Active Guard Reserve (AGR) assignment in West Palm Beach, Florida. During the period July-December 1993, duffel bags of OCIE were reported missing from the Reserve Center. Some of the losses were reported by the affected soldiers as they were discovered and other losses were discovered as the result of a change of command inventory.
4. On 15 March 1994, an Army Regulation (AR) 15-6 investigation was directed and an investigating officer (IO) appointed. The IO conducted his investigation between 17 March 1994 and 31 August 1994. Upon completion, the contested ROSs were initiated based upon the AR 15-6 recommendations. The applicant was held to jointly liable because he was the facilities manager and, as such, failed to properly supervise the movement of OCIE within the Reserve Center. The applicants portion of the loss amounted to 1 months basic pay, or $2124.60.
5. In the processing of this case, a staff advisory opinion was obtained from the US Army Logistics Integration Agency (USALIA). It recommends that the applicant be relieved of financial liability and points out that as the facilities manager, the applicant was responsible for all maintenance and operations functions of the USAR Center and associated real estate. This is not interpreted to mean that he was in charge of moving and securing each soldiers OCIE; that responsibility resided with the individual soldier and his platoon chain of command. The opinion also points out that the applicant was not the hand receipt holder for any of the OCIE; the primary hand receipt holder was the company commander, and each soldier was then assigned the property by means of his unit clothing issue record.
6. 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 for which a soldier has personal responsibility. 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.
7. 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. The applicant is a full-time, AGR operations NCO and USAR Center facilities manager. Because of his position, he was deemed partially responsible for the loss of OCIE within his unit. However, he was not involved in the issue and/or security of such equipment; that was a platoon and individual soldier responsibility.
2. Although the applicant may have been responsible from an operational standpoint of coordinating movement of platoon equipment from one area of the Reserve Center to another, this cannot be construed to mean that he was responsible for each platoons property.
3. The USALIA advisory opinion recommends granting the applicant relief.
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:
That all of the Department of the Army records related to this case be corrected by relieving the individual concerned of financial liability in the amount of $2124.60 imposed by ROSs #59-94, #140-94, #141-94, and #142-94, and by refunding to him any moneys previously collected to satisfy that liability.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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It recommends that the applicant be relieved of financial liability and points out the extreme tardiness of the ROS and the apparent forgery of the applicants signatures on the OCIE hand receipt. 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 for which a soldier has personal responsibility. The...
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On 24 March 1999, the applicant was officially notified that he was being recommended for financial liability to the United States Government in the amount of $475.40 for losses investigated through a ROS. Chapter 3 of this regulation, states in pertinent part, that the Army, by law, may pay claims for amounts due to the applicants as a result of correction to military records; however, the Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in...
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The ROS revealed: that the dining facility had requisitioned food much too far in advance of an anticipated Military Academy class; that the dining facility had requisitioned an amount of food greater than that authorized for the size of the population to be served; that a system at the Fort Allen, Puerto Rico electrical station which supplied two phase power had failed, causing the compressor in the dining facility freezer to overheat and burn out. He held the applicant jointly responsible...
ARMY | BCMR | CY1996 | 9608154C070209
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