MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 December 2002
         DOCKET NUMBER: AR2002067532

         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
Mr. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Powers		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 she be relieved of financial liability imposed against her by Report of Survey (ROS) #14-01 and that the amount of financial liability imposed against her by ROS #15-01 be reduced from $468.21 to $302.34.

APPLICANT STATES: That she was a military police company commander and that the surveys were initiated as a result of shortages discovered during her change of command joint property inventory. ROS #14-01 involved missing components to a Kitchen, Field Trailer, MKT-85 and a Tool Kit, Electronic Equipment, TK-101/G. The applicant contends that the components were never received when she accepted accountability for the major items and that a shortage annex should have been prepared, but was not. ROS #15-01 involved missing Basic Issue Items (BII) for three High Mobility Multipurpose Wheeled Vehicles (HMMWVs) issued to her. She admits liability for the missing BII for two Model M998 HMMWVs, but contends that she never received the BII for the Model M1037 HMMWV and should not be held liable for that loss.

While admitting that she, as a commander, had "overall responsibility" for the safekeeping of all property assigned to her unit, she questions why her supply officer, a second lieutenant, was not held liable when he was in charge of supply matters and she had given him specific guidance which he failed to follow. She states that she told the supply officer in June 2000 to inventory all major items and components, and to hand receipt all equipment down to the user level. The supply officer failed to do this and, when given a second chance during her change of command inventory in December 2000, he again failed to do so.

         The applicant also contends that her command was an especially difficult one. Her unit was originally designated the Fort Richardson (Alaska) Military Police Company and assigned to the Law Enforcement Command (LEC). She served as the company commander, Provost Marshal, and operations officer (S-3) of the LEC. Later, when she was relinquishing her command, the LEC was being dismantled and her unit was in the process of transitioning to a numbered company, the 164th Military Police Company. This, plus a power struggle between the Provost Marshal, US Army Alaska, and the Post Commander, Fort Richardson, caused her many problems. She offers this information in order to explain the environment in which she was forced to operate.

         The applicant states that the ROSs were initiated in February 2001. She was informed that she was being considered for financial liability on 3 May 2001 and she sought legal advice and rebutted the surveys on 18 June 2001. On 6 July 2001, she separated from the Army and no longer had access to legal advice. On 8 September 2001, she was informed that her rebuttal had been considered and disapproved, and that she was being held liable for the missing equipment on three ROSs. She verbally requested reconsideration on 27 September 2001 and initially was told all three ROSs would be dismissed. However, in early October 2001, she found out that only one ROS was dismissed and she was still being held liable on the two subject ROSs. She then sent an electronic mail (email) message asking that ROS 15-01 be reconsidered because she had never received one set of BII. This request was denied.

         The applicant concludes by saying that her supply sergeant was a sergeant (SGT/E-5) serving in a staff sergeant (SSG/E-6) billet and had limited knowledge and experience. Her supply officer was a liar and did not do his job. He allegedly conducted monthly inventories of ten percent of the unit property and the applicant signed these inventories. When she was initially issued equipment, she had no storage facilities and had to leave the equipment in the receiving warehouse where she could not inventory it. After the equipment was delivered to the unit supply room, the supply sergeant was supposed to inventory everything, but he didn't do it. The ROS investigating officer did not conduct a thorough investigation and the post commander pre-judged her based upon lies spread by her supply officer that she had been involved in an "inappropriate relationship" with the supply sergeant. After 5 years at Fort Richardson, all she received by way of an end-of-tour award was an Army Commendation Medal.

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

She was a Captain serving as a company commander at the time of the subject ROSs. The ROSs were initiated on 20 February 2001 upon completion of a change of command inventory between the applicant and her successor. ROS #14-01 was initiated for component shortages to a Kitchen, Field, Trailer (MKT-85), and a Tool Kit, Electronic Equipment (TK-101/G). ROS #15-01 was initiated for the loss of BII for two HMMWVs (M998) and one HMMWV (M1037). On 20 March 2001, the ROS approving authority directed that an investigating officer be appointed to conduct a thorough investigation into the shortages. The investigation was begun on 3 April 2001 and concluded on 2 May 2001.

ROS #14-01 found that the company supply sergeant receipted for the TK-101/G on 4 October 1999, and receipted for the MKT-85 on 26 June 2000. The applicant did not sign for the TK-101/G until March 2000. For over 1 year, the applicant signed cyclical inventories stating that the tool kit and all components were present. The MKT-85 was not properly inventoried until the change of command inventory. The applicant's unit originally indicated that the Kitchen, Field, Trailer was an MKT-90 and did not realize that it was an MKT-85 until the change of command, at which time an Administrative Adjustment Report (AAR) was completed and submitted to the Property Book Officer (PBO).

The ROS investigating officer found that the applicant had 3 days in which to report discrepancies to the PBO concerning any property issued to the unit hand receipt. He found that the unit offered the excuse that equipment component lists were unavailable and the property could not be inventoried when it was received. The Fort Richardson Director of Logistics, Chief of Supply and Services, was interviewed and stated that help was available and that every effort was made to work with units to establish and maintain supply accountability.

The ROS investigating officer found that the items listed on ROS #14-01 were lost due to the applicant's simple negligence in failing to exercise proper command responsibility, and the supply sergeant's gross negligence in failing to exercise proper custodial responsibility. After depreciation, the applicant was held liable for $178.18 in losses.

ROS #15-01 found that the three HMMWVs were receipted for between 17 September 1999 and 31 January 2000. The supply sergeant signed for two of the vehicles and the motor sergeant signed for the third vehicle; the supply sergeant verified that the BII was present for the two vehicles for which he signed, but was not certain about the third vehicle. In any event, no shortage annexes were prepared for any missing BII.

When they were received, the vehicles, and their BII, were initially stored in another unit's motor pool. The supply sergeant did not monitor the vehicles or their BII while they were in that motor pool. In March 2000, some 3 to 6 months after the fact, the applicant signed the organizational hand receipt thus verifying the three vehicles, with BII, were on hand. Later, on 1 September 2000, she signed a cyclical inventory for the vehicles, noting no discrepancies, although the company motor officer contended that he informed the applicant of BII shortages.

The ROS investigating officer found that the applicant failed to provide the proper command supply discipline or supervise the supply officer and supply sergeant. He found that the items listed on ROS #15-01 were lost due to the applicant's simple negligence in failing to exercise proper command responsibility, and the supply sergeant's gross negligence in failing to exercise proper custodial responsibility. After depreciation, the applicant was held liable for $468.21 in losses.

The ROS investigation was completed on 2 May 2001. On 3 May 2001, the applicant was notified that she was being recommended for assessment of financial liability. On 18 June 2001, the applicant submitted a rebuttal to the ROS findings. The rebuttal was rejected and, on 23 Jul 2001, the approving authority approved the ROSs and the applicant was notified that financial liability had been assessed against her. The applicant requested reconsideration of the assessment of financial liability on the subject ROSs, but was denied.

Army Regulation (AR) 735-5, Policies and Procedures for Property Accountability, prescribes the basic policies and procedures in accounting for Army property. Chapter 13 of that regulation outlines the policies and procedures for the ROS system. It states, in pertinent part, that when property listed on more than one property account becomes lost, damaged, or destroyed in the same incident, separate cross-referenced reports of survey shall be initiated for each property account affected. However, when the lost, damaged or destroyed property is on the property records of the same account and the same document register, only one report of survey shall be prepared.

Chapter 13 of AR 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 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. 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 property; enforcing all security, safety, and accounting requirements; and taking administrative or disciplinary measure when necessary. 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.

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. The applicant was a company commander. As such, she had command responsibility for ensuring the proper custody, care, use, and safekeeping of all command property; enforcing all security, safety, and accounting requirements; and taking administrative or disciplinary measure, when necessary, to safeguard all unit property.
2. The ROS investigation revealed that the applicant failed to create and foster the proper climate of accountability for unit property. She never demanded that newly-issued property be inventoried and shortage annexes developed; she never ensured that property be stored in a safe, secure area; she never physically checked to see that receipted property was still on-hand, choosing to rely on the word of others and signing inventories without actually having seen the property in question.

3. The applicant sought to blame others for her shortcomings. Although other personnel contributed to the overall situation that resulted in the missing property, the applicant was ultimately responsible. The ROS investigating officer acknowledged the involvement of the supply sergeant by finding him grossly negligent in the performance of his job and holding him jointly liable along with the applicant.

4. The ROSs were properly initiated, thoroughly investigated, and completed in accordance with governing regulations, with one minor exception. Because the property on both surveys was organizational property, all losses should have been consolidated on a single survey. However, since the total amount of financial liability imposed against the applicant did not exceed 1 month's pay, this error did not serve to operate against the applicant in any way.

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

__lls___ __bje___ __wdp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067532
SUFFIX
RECON
DATE BOARDED	20021217
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.