PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002069707


         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		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 the findings of Report of Survey (ROS) Number 99-00 be reversed; that she be relieved of all financial liability imposed by the subject ROS; and that all monies collected to satisfy the debt be refunded.

3. The applicant states that she separated from the US Army Reserve (USAR) in December 1999. In November 2001, she received a notice from the Defense Finance and Accounting Service (DFAS) - Denver Center advising her that she owed a debt of $348.00 to the Department of Defense as a result of the subject ROS. She states that her former unit never notified her of the survey or the fact that she had been held financially liable, and never afforded her due process in rebutting the survey's findings. She adds that, on 25 July 1999, she signed a hand receipt while a member of the 361st Psychological Operations Company, 12th Psychological Operations Battalion. One item on the hand receipt, a 35mm camera, was not available for inventory as it was allegedly locked in the arms vault. The applicant said she went to the PSYOPS Officer, a Major, to gain entry to the arms vault, but he simply told her the camera was present and she signed for it without actually seeing it. Later that year, the applicant turned over her hand receipt to another noncommissioned officer (NCO). She concludes by adding that when she separated from the USAR, she returned to her home address and that the unit had the address.

4. In support of her application, the applicant submitted two self-authored letters, both dated 13 February 2002; a letter from DFAS-DE, dated 22 October 2001, notifying her of her indebtedness; three Memorandums For Record, dated 13 and 14 December 2000 and 9 February 2001, authored by the ROS investigating officer (IO); a copy of her separation order from the United States Army Reserve (USAR), dated 28 December 1999; and a copy of DA Form 4697, Report of Survey (ROS Number 99-00), without exhibits.

5. The applicant’s military records show that she was a USAR Staff Sergeant serving in Military Occupational Specialty 37F, Psychological Operations Specialist, and was assigned to the 361st Psychological Operations Company, Moffett Airfield, California.

6. The applicant was designated as a hand receipt holder. She signed for all hand-receipted property on 25 July 1999 after physically inventorying all items listed on the hand receipt, except the now missing camera. When she inquired of the whereabouts of the camera, she was told that it was locked in the arms vault and instructed to see the PSYOPS Officer for access to the arms vault. The PSYOPS Officer told her that the camera was present in the vault and she, therefore, signed for it without physically inventorying it.

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7. On 3 October 1999, another Staff Sergeant was designated as hand receipt holder and inventoried and signed for the property with the exception of the camera and its accessories. When he gained access to the arms vault, he found that the camera contained therein was not the camera on his hand receipt. Although the property was discovered missing, a ROS was not initiated at that time.

8. On 28 December 1999, the applicant was separated from the USAR.

9. On 2 April 2000, as part of the unit's one hundred percent inventory, the new hand receipt holder again inventoried all property listed on the hand receipt. The camera, a Maxxum 7000I 35mm camera and a component of a larger Mobile Audio Visual Unit (AN/MSQ-85B), again could not be located. Inexplicably, a ROS still was not initiated.

10. On 8 September 2000, the subject ROS was finally initiated. On 20 November 2000, an IO was appointed. On 13 December 2000, the IO interviewed the unit supply sergeant over the telephone. The supply sergeant told the IO that when the applicant had physically inventoried all the items except the camera, she [the applicant] inquired about the location of the camera. The supply sergeant told the applicant the camera was stored in the vault in the arms room and that she would have to get access to the vault. The supply sergeant said that it was at this time that the applicant asked the Major about getting into the vault to see the camera and he replied that the camera was in the vault as he had seen it there.

11. On 14 December 2000, the IO interviewed the Major over the telephone concerning the missing camera. The Major stated that, to the best of his recollection, the applicant had asked him about the camera in the arms vault and he did tell her he had seen a camera in the vault. He also stated that he did not say the applicant could not go into the arms vault to inventory, nor did he say she did not need to physically view the camera. He added that he did not know the unit had more than one camera.

12. On 9 February 2001, the IO noted that, when he arrived at the 361st Psychological Operations Company, he requested a telephone number for the applicant and the unit administrator told him that the unit did not have a current telephone number or address for her. The unit administrator stated that the unit did have an e-mail address. The IO and the unit administrator indicated that they tried to contact the applicant through e-mail with no response.

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13. On 25 March 2001, the IO found the applicant negligent in the loss of the camera and recommended that she be held financially liable in the amount of $348.00. The IO gave no rationale for his finding of negligence.

14. 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. The Regulation also specifies that a ROS will be initiated within 15 calendar days of discovery or notification of a loss and completed within 75 calendar days of the incident, loss, damage, or destruction. Further, paragraph 13-38a requires the approving authority to notify the individual being charged when financial liability is approved and inform him/her of his/her rights, including the right to rebut the IO's findings and to request reconsideration of a decision to assess financial liability.

15. 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. 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 completed her inventory on 25 July 1999 and signed the hand receipt without physically verifying the presence of the camera. However, when she attempted to gain access to the arms vault, the PSYOPS Officer told her the camera was in the vault as he had seen it there.

2. The ROS was not accomplished in a timely manner in accordance with pertinent regulations. The loss was discovered as early as 3 October 1999, but a ROS was not initiated until 8 September 2000 and was not completed until 25 March 2001. It should have been initiated not later than 17 October 1999 and completed not later than 31 December 1999.

3. The applicant was never afforded her due process rights. Although she provided the unit with a home address when she separated, the ROS IO never forwarded the ROS to her for her review and rebuttal. The IO stated that the unit

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did not have a valid address for the applicant, yet her separation order from the USAR, dated 28 December 1999, clearly listed a valid home address, and the DFAS-Denver had no difficulty contacting her to advise her of her indebtedness.

4. The ROS states that the applicant was negligent, but does not clearly establish how the applicant was negligent or explain how her negligence led to (was the proximate cause of) the loss of the camera.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by removing the finding of financial liability assessed against the individual concerned by ROS Number 99-00 in the amount of $348.00 and refunding to her all monies collected to satisfy that now invalid debt.

BOARD VOTE:

__jns___ __dph___ __wdb___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           John N. Slone
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002068707
SUFFIX
RECON
DATE BOARDED	20020912
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19991228
DISCHARGE AUTHORITY	AR 135-178
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.