MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 October 2002
         DOCKET NUMBER: AR2002070800

         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Ms. Regan K. Smith		Member
Mr. Donald P. Hupman, Jr.		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 DA Form 4697 (Department of the Army Report of Survey), dated 3 August 1999 and numbered 001-00, be corrected to reflect that he was not found financially liable in the amount of $603.16 for the loss of organizational clothing and equipment (OCIE).

APPLICANT STATES: In effect, that his OCIE was stored in a wall locker located in the New Britain (Connecticut) National Guard Armory. When he was being separated from the Connecticut Army National Guard (CTARNG), he went to his wall locker to retrieve his equipment for turn-in and his wall locker was empty. He reported the theft of his OCIE and the unit initiated the subject Report of Survey (ROS). Although the investigating officer (IO) and the ROS appointing authority concluded that he was not responsible for the loss, the approving authority disagreed and held him financially liable. He believes the reason that he was found liable for the missing OCIE is that he had access to a different locker with a hasp in addition to the ordinary handle lock, but he failed to use the more secure locker. He states that he realizes that two locks are better than one, but, at the time, it just did not occur to him that he should have moved his OCIE. He submits in support of his request a portion of the ROS packet.

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

The applicant is a staff sergeant (SSG/E-6). At the time of the property loss, he was a member of the CTARNG assigned to the 141st Medical Company, having been transferred from Company A, 1st Battalion, 102nd Infantry (A/1/102 INF) on/about 15 April 1999. His former unit was co-located with the 141st Medical Company at the New Britain Armory.

The applicant was transferring from the CTARNG to the US Army Reserve (USAR). On 25 June 1999, he went to the New Britain Armory to clear supply by turning-in his OCIE and discovered that the equipment was missing from his storage locker. A preliminary investigation was initiated and attempts were made to locate the missing property. It was noted that the locker from which the property was missing showed no signs of forced entry.

On 3 August 1999, an ROS was initiated to clear the organizational clothing and equipment records. The ROS provided by the applicant is incomplete, but it does show that the applicant was transferred from A/1/102 INF to the 143rd Medical Company on/about 15 April 1999. It also shows that the 143rd Medical Company offered a more secure storage arrangement for unit OCIE than did A/1/102 INF; 143rd Medical Company personnel were required to store their OCIE in a wall locker with a hasp attached to the door (in addition to the standard door locking mechanism) and located inside a security cage. The applicant was assigned such a locker; however, he never moved his OCIE from the locker assigned to him by his former unit even though his new unit prominently displayed signs in the locker area that stated, "Attention. Do not put lock on lift handle. Only use the additional hasp provided. The use of the lift handle allows the locker to be opened! The Army is not responsible for stolen equipment if the hasp is not used. Per AR 190-11 [Physical Security of Arms, Ammunition and Explosives]"

Although incomplete, the ROS showed that the appointing authority was satisfied with the explanation for the loss and felt no further investigation was warranted. The ROS makes it apparent that the appointing authority did not believe the applicant to be liable for the loss.

Block 11 of the DA Form 4697 indicates that the applicant's OCIE remained stored in a locker without a hasp in A/1/102 INF even though, on 15 April 1999, the applicant had been assigned a locker in the 141st Medical Company area. On 30 August 1999, the property book officer authenticated the DA Form 4697 to indicate the grand total of lost OCIE equaled $670.18.

On 17 October 1999, the appointing authority annotated Block 17 on the DA Form 4697, which indicates, "no further investigation is required. There is no positive evidence of negligence. I do not suspect willful misconduct, or deliberate unauthorized use." The ROS was forward to the approving authority for final action.

On 16 November 1999, the approving authority indicated that he disagreed with the appointing authority and determined that the applicant was financially liable in the amount of $603.16 (after depreciation) for the loss of government property. The applicant's monthly basic pay was determined to be $2,172.60 at the time of the incident.

On 20 October 1999, the ROS approving authority notified the applicant that he did not concur with the appointing authority and he recommended that the applicant be held financially liable to the United States Government in the amount of $603.16 due to negligence. He stated that the applicant did not comply with the unit's policy when he secured his OCIE in an unauthorized, unsecured locker outside the unit's locker area after his unit assigned him an authorized, secured locker in the unit's locker area. The loss of the OCIE was determined to be the result of the applicant's disregard of established unit policy and failure to properly secure and safeguard government property. The applicant was also informed of his legal rights.

On 2 November 1999, the applicant's legal representative submitted a rebuttal to the ROS in which he stated that the priority should be to find the thief and not to penalized the applicant; that the applicant was not ordered to move his OCIE; that if liability was ordered despite the rebuttal, the applicant would appeal to the National Guard Bureau.

In January 2000, the applicant requested a reconsideration of the findings of the ROS and stated that there were no visible notices posted to indicate that only the lockers that had a hasp in addition to the ordinary door mechanism were to be used. He also stated that he was not assigned a locker at the 141st Medical Company, he was told to take any available locker and that most lockers had no hasps.

On 19 January 2000, the report of survey approving authority indicated that the applicant had provided no evidence to support his rebuttal. The applicant's name is shown on Exhibit C, which is a locker assignments list dated 15 April 1999, that shows the applicant was assigned locker Number 78 located inside the 141st Medical Company's area. At Exhibit E is a copy of the sign that the ROS approving authority states was clearly visible throughout the New Britain Armory; the sign contains text that in is written in all capital letters, underlined, and reads as follows: "ATTENTION DO NOT PUT LOCK ON LIFT HANDLE. ONLY USE THE ADDITIONAL HASP PROVIDED, THE LIFT HANDLE ALLOWS THE LOCKER TO BE OPENED! THE ARMY IS NOT RESPONSIBLE FOR STOLEN EQUIPMENT IF THE HASP IS NOT USED." Additionally, the ROS approving authority states that two locked doors secured the 141st Medical Company's locker area and that the unit's full-time staff controlled the area. The lockers without hasps were outside of the 141st Medical Company's locker area.

On 4 April 2000, the applicant’s was notified that his request for reconsideration had been reviewed and denied and that his debt in the amount of $603.16 was being forwarded through the Defense Finance and Accounting Service for collection. The applicant was again advised of his rights, which included his right to submit an application to this Board. The approving authority approved the ROS to hold the applicant financially liable.

Army Regulation Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes the basic policies and procedures for accounting for Government property. Chapter 13 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 is established as the equivalent of 1 month's annual basic pay at the time of the loss, or the actual amount of the loss to the Government, whichever is the lesser amount.

Army Regulation Army Regulation 735-5 Chapter 13-21 also states that the when the approving authority can establish from information contained in Block 11 of DA Form 4697 and the attached exhibits that negligence or willful misconduct was the proximate cause of the loss, damage, or destruction, he or she may assess financial liability by preparing a memorandum stating his or her intent to assess financial liability without further investigation. 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 an Army National Guard soldier is established as the equivalent of 1 month's annual basic pay at the time of the loss, or the actual amount of the loss to the Government, whichever is the lesser amount. The approval authority may lower the amount of liability at his discretion.

The Consolidated Glossary for Army Regulation 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.

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 report of survey clearly shows that the applicant was negligent and that the proximate cause of the loss of government property was the applicant's negligence in failing to secure his OCIE in accordance with his unit's policy.

3. The Board concludes that the applicant was a noncommissioned officer and he had the responsibility to understand and comply with his unit's policy to store his OCIE in an authorized secured locker.

4. 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

__clg___ __rks___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070800
SUFFIX
RECON
DATE BOARDED	20021031
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.1400
2.
3.
4.
5.
6.