MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 July 2002
         DOCKET NUMBER: AR2002067250

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. John P. Infante		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 $3,152.00 imposed by Report of Survey (ROS) Number 15-01.

APPLICANT STATES: In effect, that he believes that ROS Number 15-01 is in error because he followed all of the proper procedures for making a u-turn and his vehicle was in constant motion, never leaving the highway, as he made a legal u-turn. He states that $3,152.00 is a lot of money to pay for an unjust and unequal investigation. He states that negligence implies he was trying to hurt himself as well as the truck and that is simply not true because he has a beautiful family that he loves very much. He states that ROS Number 15-01 constantly questions his honor, integrity, and character and makes it difficult for him to perform his duty due to the increased amount of stress he is feeling. In conclusion, he states that it hurts that everyone involved in the ROS investigation was against him. In support of his application, the applicant submitted the subject ROS with all enclosures.

EVIDENCE OF RECORD: The applicant's records show:

He is a civilian employee (Wage Grade, or WG-10) assigned to the United States Army Garrison, Division of Public Works, Heating, Ventilation, and Air Conditioning (HVAC), Aberdeen Proving Ground, Maryland.

On 27 November 2000, the applicant was involved in an off-post, motor vehicle accident while driving a Government vehicle – a 1998 Chevrolet pick-up truck (TMP 768). He was traveling south on a divided highway (two southbound lanes that transition into one lane southbound and two lanes northbound) when he missed his u-turn at a point controlled by a traffic signal. He then proceeded southbound on the divided highway to a point where the concrete median ended, the roadway curved sharply to the right, and a solid, double yellow line separated the travel lanes. At this point, he indicated that he eased to the right then made a left-hand u-turn and was struck on the driver's side by the civilian vehicle that was following behind him. The applicant stated that he observed the following vehicle was approximately two and one-half car lengths behind him and that he indicated his intention to make a u-turn by signaling with his left-turn signal.

Civilian police investigated the traffic accident and the applicant was cited for "failure to yield the right of way to approaching vehicles when making a u-turn." The operator of the second vehicle was not charged. The applicant appeared in District Court of Maryland for Harford County on 18 January 2001. In accordance with his plea of not guilty, he was found not guilty of the charge.

ROS Number 15-01, dated 13 December 2000, was initiated due to damages estimated at $15,000.00 to the Government vehicle. On 21 December 2000, the appointing authority determined that the circumstances surrounding the damage to the vehicle warranted further investigation. On 11 January 2001, a Surveying Officer (SO) was appointed. An investigation determined that the applicant did not intentionally damage Government property; however, the SO concluded that the applicant was negligent and "displayed a lack of defensive driving techniques by not yielding the right of way, recklessness, used poor judgment in selecting the unauthorized location to make a u-turn; and therefore, should be held liable for the simple negligence in the damages resulting from this accident." The SO recommended that the applicant be held financially liable in the amount of $3,152.00 (the equivalent of 1 month's pay) for the damages to the vehicle.

On 19 January 2001, the applicant was notified that he was being recommended for financial liability to the United States Government in the amount of $3,152.00 for losses investigated in ROS Number 15-01. He was advised that he had 15 days from receipt of notification to submit a rebuttal. On 8 February 2001, the applicant provided a rebuttal to the findings of the ROS in which he stated that the SO determination was not supported by facts, therefore, he should not be held liable.

On 14 February 2001, the appointing officer, after the applicant's rebuttal was considered and rejected, concurred with the findings and recommendation of the SO and, on 15 February 2001, requested legal review of the ROS.

On 21 February 2001, the Chief, Administrative and Civil Law Division, Staff Judge Advocate's Office, Aberdeen Proving Ground, provided a legal review which found the ROS legally sufficient as required under Army Regulation (AR) 735-5 and concurred with the findings and recommendation of the SO that the applicant was negligent and such negligence was the proximate cause of the accident.

On 16 April 2001, the approving authority approved the ROS. On 24 April 2001, the applicant was officially notified by memorandum that he had been assessed financial liability in the amount of $3,152.00 for losses investigated in ROS Number 15-01. He was advised that he had 30 calendar days from the date of the notification memorandum (until 24 May 2001) to request reconsideration of his case.

On 7 May 2001, the applicant requested reconsideration of the finding of financial liability. He stated that the facts surrounding the accident had been grossly misunderstood or ignored. He also requested that a new SO be appointed who would accurately state the facts as he had answered them without interjecting superfluous and subjective opinions.

On 16 July 2001, the appellate authority denied the applicant's request for reconsideration and noted that the decision was final and no further request for reconsideration was allowed. The applicant was advised that he had 30 days from the date of notification to submit a request for a hearing. The appellate authority noted that he supported an extended payback period.

On 22 August 2001, the applicant requested a hearing stating that he was being unjustly held liable for the damage to TMP 768. On 29 August 2001, he submitted a statement in support of his request for a hearing. After a thorough review of the regulations, ROS Number 15-01, and the hearing request submitted by the applicant, the Defense Finance and Accounting Service (DFAS), Denver Center, hearing official, concluded that the debt was valid in the amount of $3,152.00 and that the applicant had been provided due process. On 23 October 2001, the applicant was notified of the hearing official's decision and the option of filing a petition with this Board.

On 16 December 2001, the applicant submitted a petition for relief of financial liability imposed against him by ROS Number 15-01 to this Board.

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 Department of Defense civilian employees is limited to 1/12th of their annual income 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. 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.

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 applicant, as the operator of the Government vehicle, had personal responsibility to exercise reasonable and prudent actions to properly use, care for, and safeguard that vehicle.

3. By making a left-hand u-turn, from a roadway curving sharply to his right, at a point where the concrete median ended and a solid double yellow line began, by moving to his right to allow him maximum room in which to complete his turn, and with following traffic just two and one-half car lengths behind, the applicant failed to act as a reasonable and prudent person would have acted under similar circumstances. Even though he was found not guilty of "failing to yield the right of way to approaching vehicles [there were none]," a reasonable and prudent person could have foreseen that a problem could result from such actions. The applicant's actions immediately preceding the accident constituted simple negligence.

4. The applicant's act of simple negligence was the proximate cause of the traffic accident that led to the damage to the Government vehicle for which he was personally responsible.

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. Negligence does not imply that the applicant was deliberately trying to hurt himself or the Government vehicle as the applicant contends.

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

__rvo___ __sk____ __jpi___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067250
SUFFIX
RECON
DATE BOARDED	20020718
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.