MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 January 2002
         DOCKET NUMBER: AR2001059184

         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. George D. Paxson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Richard T. Dunbar		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: Reversal of the assessment of financial liability imposed on him by Report of Survey (ROS) Number 6022, including the return of all money collected by the United States Government from him pursuant to the ROS.

APPLICANT STATES: In effect, that he was not negligent in the operation of the government van; that the occupants noticed a violent shaking that was not caused by road conditions; that the van had mechanical defects prior to the accident, and that these defects were the proximate cause of the accident. He also states that the initial charge of reckless operation of a vehicle was reduced to operation of an unsafe vehicle. He also noted that another soldier had operated the van 5 weeks prior to the accident and that this soldier provided a statement to the effect that he found the van’s anti-lock braking system to be sensitive to pressing down hard on the brakes (they would grab and release) causing the van to "sail" before the brakes would grab again.

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

The Board considered the applicant's request on 3 December 2001 and, although one member voted to deny relief, two members determined that the applicant's failure to timely file within the statutory time limits should be excused. Hence the applicant's case has been reconstituted to excuse his failure to timely file.

He is a retired Lieutenant Colonel. On 22 July 1995, he was involved in a single-vehicle rollover accident while driving a leased, Government vehicle - a Ford Club Wagon. The applicant's wife, two sons, and a third youth were also in the vehicle at the time. The accident occurred 12 miles west of East Liverpool, Ohio, as the applicant was returning home from a picnic and karate tournament in Conneaut Lake, Pennsylvania. The vehicle was a total loss and there were personal injuries involved. The responding Ohio Highway Patrolman charged the applicant with reckless operation of the vehicle. In Columbiana County (Ohio) Eastern Court on 19 September 1995, the applicant pleaded no contest to the lesser charge of unsafe vehicle operation and was fined $50 plus court costs.

The damaged vehicle was evaluated by the Ford Motor Company and found to be free of any defects that would have caused the van to malfunction resulting in the accident. A ROS was initiated on 5 December 1995 and an Investigating Officer (IO) appointed on 18 January 1996; however, for unknown reasons, the ROS investigation was not conducted. A second IO was appointed on 8 December 1996 and reappointed on 9 April 1997. This IO concluded his investigation on 15 May 1997.

The ROS investigation determined that the applicant willfully acted contrary to regulation and direct verbal guidance from his chain of command when he used the vehicle for unauthorized, personal use. The ROS further found that the proximate cause of the accident on 22 July 1995 that resulted in the total loss of the vehicle was excessive speed and inattentive driving by the applicant. The actual loss for the vehicle was $17,746.16. The IO recommended the applicant be assessed 1 month's pay, or $4,862.70, for the loss of the vehicle. The applicant provided a rebuttal to the ROS on 1 July 1997 in which he stated that the van’s mechanical defects were the proximate cause of the accident, therefore he should not be held liable and requested financial relief. The rebuttal was disapproved.

On 27 August 1997, the applicant was officially notified by memorandum that he had been assessed financial liability in the amount of $4,862.70 for losses investigated in ROS Number 6022. He was advised that he had 30 calendar days (27 September 1997) from the date of the notification memorandum to request reconsideration of his case.

On 9 January 2000, the applicant requested reconsideration of the finding of financial liability. He once again argued that the van’s mechanical defects were the proximate cause of the accident; that the anti-lock braking system was defective, that his reckless driving charge was reduced to operating an unsafe vehicle; and that because of these arguments; he should not be held liable and requested financial relief.

On 15 May 2000, the applicant’s request for reconsideration was reviewed by the Office of The Deputy Chief of Staff for Logistics, Headquarters, 99^th Regional Support Command. The review noted that the appeal was filed more than 3 years after the ROS had been concluded and that the applicant provided no reason or justification for the delay.

On 15 June 2000, the Defense Finance and Accounting Service (DFAS) notified the applicant that he was due his annual Voluntary Separation Incentive (VSI) and that he also owed a debt to the Department of Defense (DoD). The DFAS advised the applicant that if he did not pay in full or make installment arrangements within 30 days, they would refer the indebtedness for offset against future VSI Payments.

On 25 September 2000, the applicant’s request for reconsideration of the findings of the ROS was returned without action. The applicant was advised that since he had missed his 30-day window for appealing, his only alternative was to submit an application to the Army Board for Correction of Military Records (ABCMR).

On 12 June 2001, the applicant submitted his application for relief of financial liability imposed against him by ROS Number 6022 to the ABCMR.

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 of 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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 this requirement.

2. The evidence of record does not support the applicant’s contention that the proximate cause of the accident was the van’s anti-lock braking system. Following the accident, the van was thoroughly tested by a Ford Motor Company Dealership and found to be free of any mechanical malfunctions.
3. The complaint made by the applicant and also by a previous operator about the mechanical condition of the vehicle is without merit; that is exactly how anti-lock brakes are supposed to function. Anti-lock brakes utilize a controller that constantly monitors speed sensors associated with each wheel. The controller is looking for decelerations in the wheel that are out of the ordinary. Right before a wheel locks up, it will experience a rapid deceleration. If left unchecked, the wheel would stop much more quickly than any car possibly could. The controller knows that such a rapid deceleration is impossible, so it reduces the pressure to that brake until it sees an acceleration, then it increases the pressure until it sees the deceleration again. It can do this very quickly, before the tire can actually significantly change speed. The result is that the tire slows down at the same rate as the car, with the brakes keeping the tires very near the point at which they will start to lock up. This gives the system maximum braking power. When the anti-lock braking system is in operation, the driver feels a pulsing in the brake pedal; this comes from the rapid opening and closing -- up to 15 times per second -- of the valves.
4. The Board notes that the applicant willfully violated regulations and direct verbal guidance from his chain of command by using a government vehicle for unauthorized personal use. During this unauthorized use, his negligent driving led to the accident in which the vehicle was destroyed. Although the Columbiana County Eastern Court accepted the applicant’s plea of no contest to a lesser charge of unsafe vehicle operation instead of reckless driving, this does not absolve him of his negligence in causing the accident.

5. The Board concurs with the findings of the ROS that the applicant was negligent in the operation of the government vehicle and that his negligence was the proximate cause of the accident.

6. 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

_GDP___ __WTM__ __RTD __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059184
SUFFIX
RECON
DATE BOARDED	20020124
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19960930
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	128.1000
2.
3.
4.
5.
6.