PROCEEDINGS


	IN THE CASE OF:  
	 

	BOARD DATE:           8 April 1999                   
	DOCKET NUMBER:   AR1999023679


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  



Member

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be relieved of all financial liability imposed against him by Report of Survey (ROS) B 11-95 and that any moneys collected be returned to him.

3.  The applicant states that at the time of the alleged loss of Government property, he was hospitalized and not present for duty.

4.  The applicant’s military records show that, at the time of the loss, he was a supply specialist in the Puerto Rico Army National Guard.  On 11 July 1994, he was hospitalized for an undisclosed illness and never returned to his unit.  During the period 17-31 July 1994, his unit was scheduled to undergo annual training.  Because the applicant was not present to begin preparations for annual training, the company commander ordered the lock cut off the supply room door and the issuing of equipment to begin.

5.  The company went on annual training and the company commander was relieved for cause on 23 July 1994 and a new company commander was appointed.  The unit returned from annual training on 31 July 1994 and the new commander began a 100 percent inventory of unit property on 15 August 1994.  The inventory was concluded on 25 September 1994 and organizational property valued at $7,785.49 was found to be missing.  The new commander initiated an ROS on 20 September 1994, some 5 days before the inventory was concluded.  A survey officer was appointed on 18 October 1994 and an investigation was conducted.  During the investigation, the amount of the loss was reduced by $3,477.52 to a grand total of $4,307.97 due to the recovery of some of the alleged missing property.  On 4 April 1995, the survey officer concluded that the missing property was the result of “ineffective command responsibility” on the part of the former commander and “ineffective direct responsibility” on the part of the applicant.  He recommended that the former commander be held financially liable for $2,542.80 and the applicant be found liable for $1,885.20 (a total of $4,428.00, or $120.03 more than the total value of all missing property).  The survey officer did not apply the standard depreciation allowance on the missing property as required by regulation.  The results of the ROS were approved on 15 May 1995.  The applicant rebutted the ROS findings without success.

6.  In the processing of this case, the United States Army Logistics Integration Agency (USALIA) provided an advisory opinion from the Office of the Deputy Chief of Staff for Logistics, National Guard Bureau, recommending that the applicant be relieved of financial liability.  The opinion found that the ROS was not conducted in accordance with AR 735-5.  It further found that the applicant was not liable as he was not present at the time and it could not be determined whether the property was on hand when the former commander cut the lock on the supply room door and began distributing property in preparation for annual training.

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 simple negligence as 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 expected of a reasonably prudent person, 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 the supply specialist for a Puerto Rico Army National Guard company.  He became ill, was hospitalized, and never returned to his unit. Days after he was hospitalized, his unit began preparing for annual training.  His supply room was opened and equipment was issued without first conducting an inventory.  Following annual training, a 100 percent inventory was conducted pursuant to a change of command and shortages were noted.

2.  The ROS which found the applicant liable for $1,885.20 worth of missing property was improperly conducted and reached an inappropriate conclusion regarding the applicant’s financial liability.  Because of the actions of the company commander, it is impossible to determine whether the shortages were present before annual training (when the applicant had control of the supply room) or occurred during or after annual training (when the applicant was hospitalized).

3.  The advisory opinion rendered by the National Guard Bureau recommended that the applicant be relieved of all financial liability.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned is relieved of financial liability assessed by ROS B 11-95 in the amount of  $1,885.20, and that any moneys collected from him be refunded.

BOARD VOTE:  

      GDP         BJE          JLP         GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




		____George D. Paxson__
		        CHAIRPERSON


INDEX

CASE ID
AR1999023679
SUFFIX

RECON

DATE BOARDED
19990408
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
DASA
ISSUES         1.
128.10
2.

3.

4.

5.

6.