PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 April 2002
         DOCKET NUMBER: AR2001063542


         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.

Mr. Carl W. S. Chun		Director
Mr. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Elzey J. Arledge		Member
Mr. Richard T. Dunbar		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.

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2. The applicant requests the finding of financial liability in Report of Survey (ROS) #00-48 be reversed and all monies collected from him be returned.

3. The applicant states, in effect, that his unit at Fort Drum, New York, initiated an ROS on 20 June 2000. The action was not completed in a timely manner; the amount of liability was established at $1,640.40, and then changed to $513.47, then changed again to $1,640.40 without explanation; and, in effect, his rebuttal and request for reconsideration were not adequately considered.

4. The applicant’s military records show that he is a sergeant in the Regular Army serving as an infantry squad leader. During March 2000, his unit deployed from Fort Drum to the National Training Center (NTC), Fort Irwin, California. During the training exercise, he was originally assigned to headquarters (HQ) vehicle #HQ-83, a HMMWV (High Mobility, Multipurpose Wheeled Vehicle) and was responsible for a Battery Power Conditioner (BPC) on that vehicle. During training, his section sergeant’s HMMWV, HQ-82, broke down and he was directed to trade vehicles with his section sergeant. He did so and took HQ-82 to maintenance and did not return to the exercise.

5. When the field training had ended and the applicant’s unit was getting ready to transport its equipment back to Fort Drum, the BPC on HQ-83 was discovered missing. Following the unit’s return to Fort Drum, all shipping containers were searched, but the BPC could not be located. On 8 June 2000, the subject ROS was initiated. Following an investigation that was completed on 15 November 2000, the surveying officer found the applicant negligent in that he was told that the BPC was missing during the packing of shipping containers at Fort Irwin, but did not inform his superiors. Liability was set at $1,640.40. The applicant was notified of the surveying officer’s decision and his rights. The ROS was reviewed by legal counsel on 1 December 2000 and found to be legally sufficient to assess financial liability against the applicant in the amount of $1,640.40.

6. The applicant issued a rebuttal statement on 29 November 2000. In it, he cited three administrative errors with the subject ROS, specifically: the ROS had already exceeded the 75 days of total processing time; the appointing authority did not properly complete that portion of the ROS dealing with appointment of a surveying officer; and, the ROS does not indicate whether depreciation was applied to the missing property. He also stated that the ROS did not show that he had any responsibility for the missing item, or that he was, in any way, negligent.

7. On 5 February 2001, the applicant was notified that his financial liability had been reduced from $1,640.40 to $513.47. On an attached computation sheet, the surveying officer had assessed liability equally between the applicant, his section sergeant, and the driver of HQ-83.

8. In a memorandum dated 20 February 2001, the applicant was once again notified that he was being held financially liable for the full $1,640.40. No further explanation is provided.

9. On 12 April 2001, the applicant requested reconsideration of the decision to hold him financially liable for the loss of the BPC in the amount of $1,640.40. There is no response to his request for reconsideration.

10. In the processing of this case, an advisory opinion was obtained from the Headquarters, United States Army Forces Command, Fort McPherson, Georgia. It states that the ROS is incomplete, but appears to contain several administrative irregularities that do not rise to the level of invalidating the action. It also states that the applicant’s request for reconsideration, in which he states that his section sergeant “commandeered” his vehicle, appears to exonerate him of responsibility for the loss. The advisory opinion recommends that he be held financially liable for only $513.47, his portion of a joint liability. The applicant was provided a copy of the opinion. On 5 February 2002, he concurred with it.

11. 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.

12. 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. There are several types of responsibility for Government property. Command responsibility is the obligation of a commander to ensure that all Government property within his or her command is properly used and cared for, and that proper custody and safekeeping of Government property are provided. It is evidenced by assignment to command at any level and includes: ensuring the security of all property in the command; observing subordinates to ensure that their activities contribute to the proper custody, care, use, and safekeeping of all command

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property; enforcing all security, safety, and accounting requirements; and taking administrative or disciplinary measures when necessary. Supervisory responsibility is the obligation of a supervisor to ensure that all Government property issued to, or used by, his or her subordinates is properly used and cared for, and that proper custody and safekeeping of the property are provided. It is inherent in all supervisory positions and is not contingent upon signed receipts or responsibility statements. Responsibilities include: providing proper guidance and direction; enforcing all security, safety, and accounting requirements; and maintaining a supervisory climate that will facilitate and ensure the proper care and use of Government property. 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. 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 was the squad leader-in-charge of vehicle HQ-83 during his unit’s deployment to the NTC for training. As such, he had supervisory, direct, and personal responsibility for the vehicle and the BPC.

2. Statements taken by the surveying officer during his investigation of the loss of the BPC from HQ-83 confirm that the applicant did, in fact, relinquish control of his vehicle to his section sergeant when the section sergeant’s vehicle, HQ-82, broke down. The applicant and others then took vehicle HQ-82 to a maintenance area for repairs and did not return to the training exercise. The next time the applicant saw his assigned vehicle, HQ-83, was in the assembly area as his unit was packing for return to Fort Drum. At that time, the BPC was already missing.

3. When he relinquished control of his vehicle (and the BPC) to his section sergeant, the applicant no longer had any responsibility for that vehicle or its contents. Therefore, he should not be held financially liable for the loss of the BPC.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the finding of financial liability against the individual concerned in ROS 00-48, Headquarters, 1st Brigade, 10th Mountain Division, for the loss of a Battery Power Conditioner of an AN/UAS-11 Night Vision Sight Set. Any and all monies collected from the individual concerned by the Federal Government as a result of ROS 00-48 shall be returned to him.

BOARD VOTE:

_MKP___ __EJA___ __RTD__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Margaret K. Patterson_
                  CHAIRPERSON

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INDEX

CASE ID	AR2001063542
SUFFIX
RECON
DATE BOARDED	20020411
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	DASA
ISSUES 1.	128.1000
2.
3.
4.
5.
6.