PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 November 2002
         DOCKET NUMBER: AR2001063755


         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:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Hubert O. Fry, Jr.		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 that his command's decision to hold him pecuniarily liable in the amount of $2,213.10 imposed against him by Report of Survey (ROS) G-001-01, Fort Campbell, Kentucky, be set aside.

3. The applicant states that, although he was absolved of liability by the survey officer for the subject ROS, his command found him liable for the loss of a Telephone, Digital, Non-Secure, TA-1035 because he did not conduct a sensitive item inventory upon concluding a field training exercise. He adds that his unit supported three division command post locations during the exercise, making it impossible for him to be in all three locations at once. He also adds that the telephone was not a sensitive item at the time of the loss and was not subject to stringent inventory requirements.

4. The applicant’s military records show that he is a Sergeant First Class (SFC/E-7). In 2000, he was the noncommissioned officer-in-charge (NCOIC) of the Assistant Division Air Defense Officer (ADADO) Section, 101st Airborne Division, Fort Campbell. As such, he was the hand receipt holder (HRH) for all ADADO Section property.

5. During the period 21-31 August 2000, the 101st Airborne Division participated in Exercise Ulchi-Focus Lens (UFL). The ADADO Section operated out of three locations -- the Assault Command Post, the Division Main Tactical Operations Center, and the Division Rear Command Post. The section’s personnel and property were divided between these locations and the applicant, as HRH, distributed the property to unit personnel located at the three sites. When Exercise UFL ended, the ADADO Section returned to Fort Campbell, but no property inventory was conducted until approximately 5 September 2000 when the telephone was discovered missing.

6. A Report of Survey was directed and a survey officer was appointed. The ROS was completed on 30 September 2000. The survey officer found that the telephone “was not lost due to the intentional (sic) negligence or misconduct on the part of [applicant]” and recommended that no one be held liable for the loss. The survey officer stated that the applicant failed to sub-hand receipt the telephone, but that this was not the proximate cause of the loss; that the ADADO Section was very busy at multiple locations; and that many different people, some of whom were not ADADO Section personnel, used the telephone. He concluded that persons unknown caused the loss of the telephone.

7. The ROS appointing authority did not concur with the survey officer's findings or recommendation and held the applicant liable for the loss. This action was reviewed by the Administrative Law Section, Office of The Staff Judge Advocate, Fort Campbell, and found to be legally insufficient. The ROS was returned to the appointing authority.

8. The ROS appointing authority then revised his nonconcurrence, stating that a high operational tempo was not an excuse for failure to safeguard equipment or follow proper supply accountability procedures. He determined that the applicant should have conducted a physical inventory prior to leaving the field site, and that his failure to do so was negligent and the proximate cause of the loss. On 30 November 2000, the applicant was held liable for the loss of the telephone and assessed liability for the depreciated value of the item. The applicant was notified that he was being held liable and given the opportunity to rebut the liability decision and to request reconsideration of the decision. The ROS was reviewed by legal counsel and found to be legally sufficient to hold the applicant liable.

9. In the processing of this case, an advisory opinion was obtained from the Office of The Deputy Chief of Staff for Logistics, Headquarters, US Army Forces Command, Fort McPherson, Georgia, which states, in effect, that the applicant was negligent in maintaining proper accountability. The applicant was provided an opportunity to respond to the advisory opinion, but did not do so.

10. 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.

11. 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. 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

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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.

CONCLUSIONS:

1. The applicant was required to distribute ADADO property among unit personnel working at three separate locations. He should have accomplished this by sub-hand receipting the property to the senior unit member at each site, but he failed to do so. This failure was not the proximate cause of the loss of the telephone.

2. The applicant should have conducted an inventory of all ADADO property at each site before the property was shipped back to Fort Campbell, but he failed to do so. This failure was not the proximate cause of the loss of the telephone.

3. As previously stated, 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. While the applicant was negligent in his issuing and inventorying of the unit's property, his negligence was not the proximate cause of the loss.

4. The Board finds that the evidence in this case is not adequately developed and the analyses of the ROS appointing authority and the advisory opinion are not sufficiently supported by the evidence to hold the applicant liable for the loss. Both the ROS appointing authority and the advisory opinion pin the applicant's liability on an evolving theory of failing to inventory to failing to sub-hand receipt neither of which addresses or survives the evidence in the ROS investigation that persons unknown were responsible for the loss.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the negligence of the individual concerned relative to the handling of the missing property was not the proximate cause of the loss of that property and that he is, therefore, not pecuniarily liable for the loss of the Telephone, Digital, Non-Secure, TA-1035 as stated in ROS G-001-01.

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2. That any monies collected from the applicant to satisfy the pecuniary liability imposed by the subject ROS be refunded.

BOARD VOTE:

__sac___ __rwa___ __hof___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Samuel A. Crumpler
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001063755
SUFFIX
RECON
DATE BOARDED	200211226
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.