MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 June 2002
         DOCKET NUMBER: AR2002067958

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. Roger W. Able		Member
Mr. John T. Meixell		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: That he be relieved of financial liability in the amount of $1,417.50 imposed against him by Report of Survey (ROS) Number 44-00, dated 15 May 2000.

APPLICANT STATES: That the ROS is incorrect and unjust; that it levies an overwhelming burden on him; that the finding of liability was arbitrary; and that he is the victim of a new Aberdeen Proving Grounds (APG) policy to hold all individuals liable on reports of survey. He further claims that the military police did not adequately investigate the accident; that the accident report is in error; that ground guides were not available at the accident site; that the accident site was extremely congested with traffic; and that he was not performing the duties of his job series when the accident occurred.

EVIDENCE OF RECORD: The applicant's records show:

He is a civilian employee of APG, Maryland, working as a mechanic's helper. On 8 May 2000, he was operating a Government vehicle. While attempting to make a right turn, he misjudged his turning radius and struck a parked Government vehicle in the right, front fender/bumper area.

The APG Military Police responded and completed a DA Form 3975 (Military Police Report) and a DA Form 3946 (Traffic Accident Report). In a sworn statement given to the investigation military police, the applicant said, "I was turning into a parking space to back up and turned too short hitting the parked truck." He was charged with causing a traffic accident by failing to judge proper clearance.

On 15 May 2000, the subject ROS was initiated. The appointing authority determined that further investigation was warranted and appointed a surveying officer on 8 June 2000. The surveying officer conducted his investigation on the same day, found the applicant negligent in the operation of his Government vehicle, and determined that the applicant's negligence was the proximate cause of the accident. He recommended that the applicant be held liable for the damage to the parked Government vehicle [the applicant's vehicle sustained no damage].

On 29 June 2000, the applicant was notified that he was being recommended for financial liability. He acknowledged notification and submitted a rebuttal stating that he did not believe that he should be held financially liable for the incident because it was a simple accident and it happened while he was performing his duties. He added that the Government should have insurance so that employees who have accidents should not have to pay for them. He concluded by saying that he was not negligent.

The surveying officer considered the applicant's rebuttal on 5 July 2000. He concluded that the applicant did not provide any new facts/evidence to warrant a change in the ROS findings. The appointing authority concurred and the ROS was forwarded to the approving authority. A legal review found the ROS to be legally sufficient and it was approved on 20 July 2000.

On 24 July 2000, the applicant was notified that he was being assessed financial liability in the amount of $1,417.50 as a result of the subject ROS. On 15 August 2000, he submitted a request for reconsideration of the decision to hold him financially liable. In it, he stated that he was a mechanic's helper, but he was performing landscaping duties on the day of the accident; that the ROS stated that the damaged vehicle was parked on an "apron," but there was no "apron;" that negligence was not negligence in certain situations; that he was given 30 days from the date of notification to submit a request for reconsideration, but he should have been given 30 days from the date of liability notification; that the repair cost of the damaged vehicle was too high and more estimates should have been obtained. A response from the approving authority was not provided with the ROS packet.

Chapter 13 of Army Regulation 735-5 states that the Government may impose a finding of financial 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 financial liability for Department of Defense civilians is limited to 1/12th of their annual 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. 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.

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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 was driving a Government vehicle when he negligently turned too sharply and struck a parked Government vehicle causing $1,417.50 worth of damage to the parked vehicle.

3. The ROS that held the applicant financially liable was properly conducted. It safeguarded the applicant's rights, properly found him negligent in the accident, and assessed financial liability against him.

4. None of the applicant's arguments or contentions presented with his application to this Board is persuasive.

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

__rvo___ __rwa___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067958
SUFFIX
RECON
DATE BOARDED	20020620
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.0010
2.
3.
4.
5.
6.