| Mr. Carl W. S. Chun | Director | |
| Ms. Rosa M. Chandler | Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Ms. Gail J. Wire | Member | |
| Mr. Antonio Uribe | Member |
APPLICANT REQUESTS: That the findings of Report of Survey (ROS) Number 352-01-XXX be set aside or, in the alternative, that the ROS be reopened and conducted in accordance with chapter 13, Army Regulation 735-5.
APPLICANT STATES: That he does not believe the evidence supports the ROS investigating officer's (IO) findings and recommendation, nor does he believe that he should solely be held financially liable for the lost property. The IO made factual findings that suggest a number of individuals were liable for the losses at issue, yet the IO chose to recommend financial liability solely against him. The applicant believes his command shares in the loss in that the command failed to provide him adequate guidance, oversight, and resources to support a critical function in the command. In May 1996, he did not decline to conduct a change of command inventory as the acting commander has suggested; he was not afforded the opportunity to perform a change of command inventory due to his hasty deployment to Bosnia to participate in Operation Joint Endeavor. The applicant states that in his request for reconsideration, dated 27 August 2001, he provided the survey officer new evidence that demonstrated some of the missing property may have been turned-in or laterally transferred during his Bosnia deployment. Appropriate accountability procedures were not followed during this timeframe.
The applicant states that, upon his return from Bosnia, his command failed to provide him with a knowledgeable, responsible supply sergeant. Instead, he was assigned a noncommissioned officer (NCO) who had been relieved-for-cause due to theft, only to be followed by an NCO who was experiencing personal problems, to include alcohol abuse. He was forced to operate without a supply sergeant from October 1997 through January 1999 and from August 1999 until he left the command in October 2000. He believes he could have accounted for some of the missing property had he been given the opportunity. The three supply sergeants who temporarily worked for him may have also been able to help establish accountability for some of the missing property had they been contacted by the IO during the ROS investigative phase. The three missing laptop computers were known to have been in the control of one of these individuals, yet the individual was not held liable for the loss.
In support of his request, the applicant submits a copy of ROS Number 352-01-XXX, dated 7 January 2001, and supporting documents; a Memorandum, Request for Reconsideration, dated 24 August 2001; a memorandum written by his legal representative in support of his request for reconsideration, dated 27 August 2001; memoranda, Hand Receipts, and Requests for Issue or Turn-In. He also submits a memorandum written to the Board, dated 4 August 2002.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant’s Active Guard Reserve (AGR) military records are not available. However, the evidence that is available in the ROS documents shows that he was a major assigned as Commander, Headquarters and Headquarters Company (HHC), 352nd Civil Affairs Command (CACOM), Fort Bragg, North Carolina. As the commander, he was also the unit property book officer. In May 1996, the applicant deployed to Bosnia and another officer was named as acting commander. There is no evidence that a "change of command" inventory was conducted. The applicant returned to the 352nd CACOM and reassumed command in January 1997.
On 5 November 2000, the applicant had a formal change of command. In preparation for that event, a property inventory was initiated, but because it was not completed by the actual change of command date, an extension was granted until 5 December 2000. The applicant and the incoming commander accounted for, and concurred on, all items inventoried except for those listed on the ROS, dated 7 January 2001, in the amount of $52,467.48.
On 7 January 2001, the appointing authority determined the circumstances surrounding the loss, damage or destruction of the missing property warranted further investigation and directed an ROS be conducted. An IO was appointed.
On 19 April 2001, the IO concluded his investigation and determined the applicant to be "pecuniary liab[le] without negligence" for the loss. He further concluded that the command environment was mission driven and the applicant failed to ensure property accountability when he deviated from the procedures outlined in Army Regulation 710-2 and Army Regulation 735-5. The IO found that there were mitigating circumstances that created conditions for the applicant's failure to maintain property accountability. The HHC command was the applicant's third command and his previous two commands were completed without missing property or reports of surveys. Both the applicant and the full-time HHC supply sergeant were reassigned to support the deployment mission for Bosnia without adequate resources or personnel to continue the HHC mission at the home station. Upon the applicant's return, he reassumed his duties. The applicant ensured that his unit passed all supply inspections, including the United States Army Special Operations Command (USASOC) inspection and the Command Logistics Readiness Test prior to deployment.
The IO determined the applicant's multiple command periods involved mitigating circumstances, in that the 352nd CACOM's command emphasis during the period was on deployment operations and there was no command support for logistics operations or accountability.
Operation Joint Endeavor significantly impacted the applicant's ability to ensure proper accountability. The 352nd CACOM's supply sergeant - a sergeant first class (SFC) - was relocated to the G-4 section and sent to Fort Benning, Georgia, as the G-4 representative. The SFC received instructions from the G-4 to issue equipment and he was not supported in completing the transactions with signatures. Gortex parkas were issued without the supply sergeant's supervision in order to meet mission requirements and the same occurred with other items listed on the ROS. The applicant was reassigned to the J-1 section during deployment operations and an interim HHC Commander was appointed and received an Officer Evaluation Report as the commander. The outgoing and incoming commanders were not afforded the time to conduct a joint inventory as time was mission critical. The same is true for the HHC supply sergeant; he was not afforded the time to turn over the supply room to another soldier who was a qualified supply specialist, as none were available.
The command's support for logistics operations was not equal to the responsibilities identified in Army Regulation 710-2 and Army Regulation 735-5. In particular, there was no Command Supply Discipline Program (CSDP) established in the 352nd CACOM. There was no Standard Operating Procedure (SOP) in place to ensure regulatory compliance. Inventories were not placed on training schedules and command emphasis was lacking regarding the USASOC-required quarterly inventories and change of command inventories. Additionally, the 352nd CACOM failed to identify or pursue the loss of the AGR requirement for the HHC supply sergeant from October 1997 through April 1999. This 19-month period was critical as it closely followed the applicant's 9-month deployment to Operation Joint Endeavor. The command did not maintain document registers as this requirement is centrally managed at the USACAPOC Material Management Activity (MMA). The MMA ordered and documented all equipment receipts and turn-ins. Reconciliation of transactions, issues, lateral transfers, and turn-ins could have been mishandled considering the distribution of USACAPOC commands. USACAPOC relied on the United States mail for the original government bills of lading and other documents that legally represented logistics transactions.
The turbulence associated with logistics personnel in HHC, 352nd CACOM was a significant factor in the loss of accountability of HHC equipment. During the applicant's command time, he had four supply sergeants. The full-time SFC AGR supply sergeant was reassigned due to the loss of that AGR position. One of the replacement supply sergeants was charged with theft in May 2000. A staff sergeant (SSG) replacement supply sergeant was reassigned due to promotion, and an AGR sergeant who filled-in as supply sergeant was relieved of duty due to personal problems. All of these changes created significant lapses in the supply sergeant position being filled with a qualified individual.
The distribution and shortage of the 352nd CACOM's property was also an issue as the Field Clothing and Equipment stored at the Letterkenny Army Depot, Chambersburg, Pennsylvania, constituted a large portion of the missing equipment. The equipment stored at Letterkenny was shipped to the 352nd CACOM on an unknown date in 1997 as Letterkenny was being closed as part of the base realignment and closure (BRAC) process. The shipment from Letterkenny included items for all three commands co-located in the Riverdale Park USARC - the 352nd CACOM, the 354th Civil Affairs Brigade, and the 450th Civil Affairs Battalion. The supply sergeant, an SFC, was present during the arrival of the equipment, but he believed the quantity and the control of the equipment exceeded his resources to properly obtain and document the returned equipment.
The IO stated that the applicant, in written memoranda format, brought to the attention of the command the equipment control issue. No action was taken and the applicant failed to maintain copies of the memoranda. The three missing laptop computers were inoperable and locked in a cabinet under the control of the supply sergeant. Key control was believed to be an issue. DA Forms 3645 (Personnel Clothing Records) were also not maintained for every solider issued equipment.
The IO recommended that the applicant be held financially liable for the loss in the amount of $2,404.35 and that all others be relieved of accountability and responsibility for missing items. The IO stated that the 352nd CACOM shared in the loss as the command failed to provide adequate command guidance, oversight, and support to a critical function in the command. The IO believed that the loss of the HHC AGR supply sergeant's position was proof that the command's emphasis was not in the area of logistics.
On 19 April 2001, the ROS appointing authority approved the ROS to hold the applicant financially liable in the amount of $2404.35. This amount was increased to $4,808.70 when the applicant was officially notified. Although not explained, the increase is thought to represent the assessment of 1 full month's basic pay [which, according to regulation, would be the correct assessment].
On 24 August 2001, the applicant submitted a rebuttal and a request for reconsideration stating he had hired an attorney. He also requested that the hand receipts he produced reflecting the lateral transfer of a number of items be addressed. The applicant believed this property was in the possession of other units, but still remained on his property book. He also requested that the ROS investigation be reopened as the IO failed to interview the three supply sergeants whom he [applicant] believed possessed information relevant to the ROS. He
stated it was fundamentally unfair to hold him solely liable when others were determined to have contributed to the loss. He said he was unable to effectively maintain property accountability due to inadequate personnel. He said he requested logistical assistance/support both in writing and verbally on a number of occasions to no avail. He was told there were no funds to support his request.
On 27 August 2001, the applicant's legal representative requested reconsideration of the ROS based on legal error as the facts of the ROS did not support assessment of financial liability solely against the applicant and that the applicant submitted new evidence to support his request. The legal representative also stated that before the applicant could be held financially liable, the facts must show that he, through negligence or willful misconduct, violated a particular duty involving the care of the property. The IO made factual findings that the applicant was not negligent and suggested that a number of individuals were liable for the loss of the property. However, without any factual support or basis for doing so, the IO chose to recommend financial liability solely against the applicant. Due to the applicant's hasty deployment to Bosnia in May 1996, he was not afforded the opportunity to complete a change of command inventory. The acting commander had the responsibility to ensure that the property accounting was complete and accurate and she was required to ensure proper custody and safekeeping of all Government property within the command. Applicant's counsel also argued that, before holding a person financially liable for a loss to the Government, the facts must clearly show that the person's conduct was the "proximate" cause of the loss, damage, or destruction. That is, the persons acts or omissions were the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the loss, damage, or destruction, and without which the loss, damage, or destruction would not have occurred.
The applicant's legal representative stated that when an IO concludes that more than one individual is responsible for the loss of property, he should make a recommendation for joint liability in accordance with establish guidelines. The applicant's legal representative also requested that the applicant be afforded due process; that the case be reopened; that the ROS IO work with the applicant and provide him sufficient time to track down/locate some of the property that was determined to be missing; that in the event that it is determined liability should be continued, the request for reconsideration and attached exhibits should be forwarded to the appeal authority with a memorandum stating the basis for denying the request.
On 22 January 2002, the US Army Civil Affairs and Psychological Operations Command Staff Judge Advocate (SJA) reviewed the subject ROS. The SJA, citing a discussion of amended findings and recommendations submitted by the IO, determined that the facts supported the IO's conclusions and stated that the applicant was negligent and that said negligence was the proximate cause of the loss of the items. The legal review pointed out that the applicant failed to conduct a change of command inventory both before he left for Bosnia and upon his return. The review acknowledged that prior to the applicant's departure to Bosnia, he may have been operating under rigorous time constraints; however, it was his responsibility to appoint a temporary hand receipt holder when he learned he was leaving the area for more than 30 days. In the absence of a formal transfer of property, the applicant remained directly responsible for all property for which he was signed. The acting commander never signed for anything and although she bore responsibility for all items under her control while serving as the acting commander, she was not the proximate cause of the loss. The applicant failed to inform the acting commander exactly what was on hand under his control and he failed to conduct a complete inventory until 2000, which was more than 2 years after he returned from Bosnia and reassumed command. In short, he failed to maintain accountability for his property. The applicant's contention that he did not have enough time to locate the missing property or to identify documents explaining its disappearance was unconvincing. He returned home from Bosnia in January 1997, which was more than 2 years before he permanently relinquished command, and this was ample time to address property short falls. The SJA conceded it was true that some property transactions occurred while the applicant was in Bosnia and he could not oversee those transactions, but his discovery of these transactions 2 years after they occurred and his attempt to fix blame for these losses on the acting commander is not exculpatory. He should have conducted the required inventories upon his return and accounted for losses at that time. Due to reasons that are unclear, the amount of the loss was decreased to show a loss to the Government of $43,000. The applicant was liable for the amount of 1 month’s pay regardless of whether the acting commander was found liable for missing property.
On 2 February 2002, the applicant was advised that his request for reconsideration of the assessment of financial liability in the amount of
$4,808.70 against him had been reviewed and denied by the appellate authority. He was also advised that no legal error in the assessment had been found; that the decision was final and that no further requests were allowed. He was again advised of his rights.
On 28 February 2002, the applicant’s was notified that financial liability had been assessed against him in the amount of $4,808.70 for the loss of Government property and that he should enter into a written agreement with 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.
Army Regulation (AR) 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.
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. 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. 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 was a senior commissioned officer and commander of multiple units. He had the responsibility to maintain property accountability in accordance with all pertinent regulatory guidance and his vast experience in command gave him the knowledge and ability to do so.
3. The applicant's circumstances involved a number of mitigating factors: he was assigned to Bosnia under tight time restraints prohibiting him from accomplishing a complete property transfer; during the period of his deployment, supplies were issued in his absence and without the proper signatures; the unit experienced personnel shortages and lost authorization for a full-time AGR supply sergeant; the individuals who replaced the supply sergeant were not adequately trained or qualified to fulfill the duties and responsibilities of the supply sergeant position; property was apparently exchanged, yet the old numbers remained in the records and the new numbers were not appropriately recorded; key control for equipment/supplies was ineffective; the applicant's higher headquarters did not act on his requests for assistance in the supply and property accountability arena. However, the fact remains the applicant did nothing to gain control of accountability once he returned from Bosnia and in the 2 years prior to his change of command. This, in and of itself, constituted negligence on the part of a seasoned commander.
4. The 22 January 2002 US Army Civil Affairs and Psychological Operations Command SJA review of the ROS referenced revised findings and conclusions that were unavailable to this Board, but which were cited as forming an adequate basis for the assessment of liability.
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
__fne___ __gjw___ __au____ DENY APPLICATION
| CASE ID | AR2002078353 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20031104 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 128.1000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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