MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001057384

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

Mr. Carl W. S. Chun		Director
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Fred N, Eichorn		Chairperson
Mr. Thomas B. Redfern III		Member
Mr. Donald P. Hupman, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that he be relieved of financial liability in the amount of $1,739.81 imposed by Report of Survey (ROS) FMC #01-98.

APPLICANT STATES: That he believes the entire ROS was performed in a slipshod and lackadaisical manner and that the finding of financial liability is an unfair decision. In support of his application, the applicant submitted the official ROS with all enclosures.

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

On 27 February 1998, the applicant was a GS-13 civilian employee assigned to the Telecommunications Branch, Army Materiel Command (AMC), with the additional responsibility of being the Hand Receipt Holder (HRH) for hand receipt (HR) Number 3063, a Planet-1 Satellite Telephone. The telephone was issued to the applicant on 5 November 1997. It was issued for the use of the Command Group and his office. The telephone was kept next to the applicant’s desk. It became missing on 17 February 1998.

On 3 March 1998, the applicant contacted the Office of Information Management at AMC to request that a Headquarters-wide (HQ) electronic mail (e-mail) message be sent asking for information concerning the missing equipment. The message stated, in effect, that a Planet-1 Satellite Telephone and accessories was missing from Room 3W06. On 10 March 1998, the applicant requested another e-mail message be sent to all of HQ, AMC.

On 31 March 1998, the applicant initiated a ROS investigation. On 28 April 1998, the appointing authority, after a review of the evidence, determined that the circumstances surrounding the lost equipment warranted further investigation.

On 25 June 1998, the Appointing Authority appointed the first of three Surveying Officers (SO) to conduct an investigation. On 24 October 1998, the Appointing Officer appointed the third SO. It was approximately another 2 weeks before the SO obtained a copy of the ROS and exhibits.

On 29 October 1998, the applicant contacted the company providing service to the satellite telephone asking them to cancel the service and smart cards because the telephone had been stolen from his office on 17 February 1998.

On 6 November 1998, the applicant’s supervisor, Chief, HQ Support Services Division, Director of Information Management, AMC, submitted a sworn statement in which he stated that the HQ was being painted and that the painters showed up to paint his area -- including Room 3W06 -- without warning. They were scheduled to show up on 5 March 1998; however, they showed up on 27 February 1998. Therefore, he and his front office staff had to leave the area immediately. He further states that he questioned the contractors as to why they had arrived ahead of their scheduled time to paint. He continues that the contractors immediately started spreading tarps over the entire room covering all equipment and furniture, and that he and his front office staff had to leave the premises. As they went out the door, he told the contractors to be sure to close the door when they were done with room 3W06, and that once they closed the door they would not be able to reenter due to the door being secured by a cipher lock. He also stated that, on 2 March 1998 as they were putting the office back together, the HRH [applicant] notified him of the missing phone. He concluded his statement by stating that under normal circumstances the satellite telephone would have been stored in a secure area, but because of the confusion with the contractors arriving early to paint, it and other material were not secured.

On 10 November 1998, the Division Secretary made a sworn statement that when she arrived at work on 2 March 1998 the office door was locked and that she did not see the telephone when she arrived.

The ROS investigation was delayed until 21 January 1999, due to the Surveying Officer being unable to contact the Building Manager over the Christmas holidays. The Surveying Officer then contacted the Building Management Company for a copy of the painting schedule for the end of February 1998. The Building Management Company asked the Surveying Officer to put his request in writing. On 21 January 1999, the Surveying Officer requested, in writing, a copy of the painting schedule for the end of February 1998. The Vice President of the Building Management Company responded on 21 January 1999 to the Surveying Officer’s request. The letter in effect, stated that the job was completed and signed off on 2 February 1998 and that he could not find a revised schedule or reason they would have been back on this job in late February. He further stated that work in occupied areas is always scheduled; that the contractor personnel would never evict tenants or ask them to leave; that they have a standing rule that tenants secure their valuables; that the men had worked in the building for 20 years and had never had an incidence of theft; and that the stated dates are confusing.

The ROS investigation was delayed off and on from 21 January 1999 through April 1999. The delays were caused by witnesses not being available due to injury, illnesses, and office moves.

On 12 March 1999, the Surveying Officer found that the satellite telephone was lost under unusual circumstances because it was of a pilferable size. He stated that the supervisor of the HRH was obligated to provide a procedure requiring that the telephone be reasonably secured. He further stated that the supervisor of the HRH and the HRH were surprised by Building/Owner contractor personnel in their area to paint and replace tiles, which required government employees to evacuate the area leaving access to the room open. He noted that the room had a cipher lock that prevented unfettered access. However, the requirement to leave the room open was not the norm and was an intervening event in the loss of the telephone. He concluded his findings by acknowledging that, even though the HRH’s supervisor instructed the contractors to close the door, knowing that it would automatically lock, some effort should have been made to secure the telephone. However, he did not view it as foreseeable that all items, pilferable or not, would be secured and that such failure does not rise to negligence, simple or gross. He recommended that the supervisor and the HRH be relieved of all liability for the satellite telephone and that the supervisor place written guidelines into the office standard operating procedures regarding how to store and secure equipment. The Appointing Authority rejected this recommendation in favor of holding the HRH financially liable.

On 8 June 1999, the applicant submitted a rebuttal statement to the ROS in which he questioned why the Defense Protective Service was not notified regarding the loss of the satellite telephone, why he or his coworkers were not asked to make statements, and why he was not provided a summary of the events surrounding the lost telephone.

On 17 June 1999, an Associate Counsel reviewed the ROS and noted that it did not meet legal sufficiency as required under Army Regulation (AR) 735-5. He stated that the facts and findings of how the telephone was lost on or before 17 February 1998 required further clarification.

On 2 September 1999, the Appointing Authority forwarded a memorandum to the Surveying Officer requesting additional information. On 14 September 1999, the Surveying Officer responded to the memorandum and provided the Appointing Authority a copy of the pecuniary liability determination and computation.

On 7 January 2000, an Associate Counsel provided a legal review which found the ROS legally sufficient as required under AR 735-5 and concurred with the findings and recommendations of the Surveying Officer to relieve the applicant of financial liability. The specific reasons for concurrence were there was no finding of culpability and proximate cause and the Surveying Officer found that there was an intervening, unusual cause which led to the loss of the government property. The legal review stated that before the applicant could be held liable under section 13-28 of AR 735-5, there must be a determination of responsibility, culpability, proximate cause, and loss. Therefore, the applicant was not at fault and could not be held financially liable for the loss of the Planet-1 Satellite telephone.

On 16 February 2000, another Associate Counsel reviewed the ROS for legal sufficiency of the Appointing Authority’s decision to hold the applicant liable for negligence despite the Surveying Officer’s recommendation to relieve him of liability. Following a thorough review of the Appointing Authority’s recommendation, the Surveying Officer’s findings and recommendations, the ROS, exhibits, and the entire file, the Associate Counsel recommended that the Approving Authority should consult with the Appointing Authority and Surveying Officer regarding the concerns raised in his memorandum prior to signing the form. He also recommended that the Approving Authority approve the Appointing Authority’s recommendation provided he was satisfied: (1) that the HRH and/or Supervisor failed to establish an SOP regarding use and security of the phone;(2) that the work area had sufficient storage containers in which to lock the phone and accessories; (3) that the AMC employees could have obtained the necessary time from the painting contractor to permit them to secure the valuable government equipment; and (4) that the HRH failed to treat the government equipment with the same degree of care, as he would have with regard to his own personal property.

On 9 May 2000, the Approving Authority discussed with the Appointing Authority and Surveying Officer the legal sufficiency opinion regarding ROS 01-98.

On 20 June 2000, the applicant was notified that the United States Government had assessed financial liability against him in the amount of $1,739.81 for the loss of Government property investigated under ROS 01-98 and he was advised of his rights.

On 17 July 2000, the applicant requested reconsideration of the finding to hold him liable in the amount of $1,739.81 for the loss of a satellite telephone. He cited five reasons why holding him financially liable for failing to secure the telephone was incorrect: 1) the unanticipated arrival of the painters; 2) leaving the phone unsecured beside the desk was consistent with normal office security procedures; 3) the appointing authority should have accepted the Surveying Officer’s findings and recommendations; 4) the finding of financial liability was made without determination of legal sufficiency; and 5) the ROS had numerous procedural errors. His arguments were basically an elaboration of the same ones presented in his rebuttal. Finally, he stated that holding him financially liable would significantly impact him and his family.

On 16 August 2000, the Appointing Authority provided explanations and details for the inordinate amount of time that it took to process the subject ROS.

On 5 January 2001, the Appellate Authority denied the applicant’s request for reconsideration and relief from financial responsibility and stated the decision was final and no further request for reconsideration would be allowed. Also on 5 January 2001, the applicant was officially notified that his request for reconsideration had been denied.

On 29 June 2001, the HQ, AMC Installations and Service Activity, Rock Island Arsenal, Rock Island, Illinois provided a comprehensive advisory opinion to this Board. The advisory opinion stated that the processing of the ROS was as prescribed by chapter 13 of AR 735-5, Policy and Procedures for Property Accountability, dated 31 January 1998, and that there was no reason to recommend any change to the findings of the appellate review and Approving Authority. The opinion specifically stated that no reason could be found that would warrant non-continuation of liability based on the processing procedures of the ROS. Additionally, it stated that the applicant’s issues did not provide evidence of processing error as noted in the legal opinions attached to the ROS file maintained at HQ, AMC. It was noted that the Appellate Authority did, in fact, receive a legal opinion prior to his determination that continued liability was appropriate. It was also noted that although the extended length of total processing time did exceed the ROS time segments as described in the regulation, but that extenuating circumstances were documented and attached to the ROS package as required. Additionally, the only conflict in evidence appeared to be the actual date of disappearance of the lost equipment. Further, there were no processing steps that indicated bias toward the respondent by any of the participants of this ROS. The financial liability assessed by the Approving Authority followed guidelines of the basic regulation and included the splitting of actual loss between the respondent and his immediate supervisor. The opinion concluded that, based upon the documentation reviewed, there was no indication of processing error that would warrant an opinion that the ROS did not follow the appropriate steps as allowed by basic regulation. Therefore, without the presence of new evidence showing cause for legal error, it is concluded that the ROS processing followed allowable procedures.

On 7 August 2001, the applicant submitted a rebuttal to the ABCMR of the 29 June 2001 Advisory Opinion to the subject ROS. In it, he stated that he did not receive a “copy of the legal opinion obtained by the appellate authority.” He also stated that no one else was made to pay for lost or stolen property over the past 5 years. He added that his boss and the ROS Appointing Authority had “many professional disagreements” and he [applicant] was “caught in the middle” and made to pay for the missing property.

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 (in excess of $8,503.43), whichever is the lesser amount. The regulation also specifies that an ROS will be processed within 75 calendar days of the incident of loss, damage, or destruction.

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. 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.

AMC Memorandum, dated 3 February 1999, establishes policy and procedures for the control of keys and locks to designated restricted/controlled areas, high value storage areas, and specified areas within the HQ, AMC Building. The requirements of this memorandum apply to all AMC and tenant military activities resident at 5001 Eisenhower Avenue, Alexandria, Virginia. This memorandum states, in effect, that access to headquarters is controlled and strict package control procedures remain in effect. There is a random inspection program of both incoming and outgoing personnel and their property. As a result, there is no requirement to secure individual office areas. However, when selected government property is found to be unaccounted for, damaged, or destroyed, action must be taken by the responsible individual and/or HRH to obtain relief from direct responsibility. This memorandum also notes that cipher locks are access control devices and will not be used in lieu of approved keys and locks for physical security purposes. Cipher locks are access control tools used to limit unannounced or unescorted access to sensitive areas.

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. The applicant was the HRH of the Planet-1 Satellite Telephone and was personally responsible for its safekeeping.

2. The Board carefully reviewed all of the evidence and additional documentation submitted by the applicant; however, the Board found no evidence that the ROS was done in a slipshod or lackadaisical manner, or that the finding of liability was unfair. The Board noted that, although the ROS took an extensive amount of time to complete, there were extenuating circumstances and that these circumstances were documented as required by Army Regulation 735-5. Legal reviews were obtained at the appropriate times and the applicant was provided copies. No legal review was required based upon the applicant’s request for reconsideration of the decision to hold him financially liable (as he suggests in his rebuttal to the advisory opinion provided to this Board).

3. The evidence of record shows the applicant was responsible for a very expensive piece of equipment and that he was negligent in his responsibility to safeguard it. The fact that the painting contractors arrived ahead of schedule did not release the applicant from his responsibility to safeguard the telephone. It is unlikely that the contractors evicted the applicant from his office space without allowing him time to secure valuable property.

4. The practice of leaving the phone beside the applicant’s desk in a cipher locked room was not sufficient security, especially when the office was left open while being painted.

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

_FNE___ __DPH___ __TBR__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001057384
SUFFIX
RECON
DATE BOARDED	20020305
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.
2.
3.
4.
5.
6.