PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 September 2003
         DOCKET NUMBER: AR2002081590


         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
Mr. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		Member
Mr. John T. Meixell		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 and recommendation of Report of Survey (ROS) MT 16-99 be set aside and that he be refunded $1,614.30 that was collected from his pay as a result of his being found financially liable by the subject ROS.

3. The applicant states that the ROS contained factual, legal, and procedural errors. He adds that, as a mechanic, he was told by the maintenance officer to sign a hand receipt so that his motor sergeant could out-process on permanent change of station (PCS) orders. He adds the maintenance officer told him as soon as a new motor sergeant arrived, he [applicant] would be relieved of responsibility as hand receipt holder.

4. The applicant’s military records show that he is a sergeant (SGT/E-5) serving in military occupational specialty (MOS) 62B, Construction Equipment Repairer. In 1999, he was assigned to a maintenance support battalion at Schofield Barracks, Hawaii.

5. On 30 March 1999, the applicant signed Hand Receipt (HR) #17 (Ground Support Platoon) relieving his motor sergeant, a staff sergeant (SSG/E-6), of responsibility so that he could depart for a new assignment. A joint inventory was not accomplished and the SSG departed the unit on/about 2 April 1999. On 5 April 1999, the applicant received a 70-day drop on his enlistment and began preparations for leaving Hawaii. Still, no inventory of HR #17 was accomplished.

6. On/about 20 May 1999, the unit supply sergeant and a newly appointed motor sergeant began an inventory of HR #17. At about the same time, a company change of command necessitated a 100 percent inventory between the outgoing and incoming commanders. During the ensuing inventories, numerous items were discovered to be missing from the hand receipt, primarily durable and expendable tools, but also non-expendable tools and a computer monitor. Most of the items came from seven general mechanic's toolboxes that the old motor sergeant had never assigned to individuals. The losses, totaling approximately $15,000, were reported on/about 12 July 1999 and an ROS was directed.

7. An ROS investigating officer (IO) was appointed on 29 August 1999 and he conducted an investigation which was completed on 30 September 1999. The applicant provided a statement on 3 June 1999 in advance of his departure from Hawaii. In it he explained that he was forced to sign the hand receipt without accounting for the property because the motor sergeant needed to PCS. He said he reluctantly did so, then he, himself, received orders to leave Hawaii. Other witnesses who were interviewed stated that the toolboxes in which most of the shortages were found had been unassigned and kept unlocked in a storage

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container. The incoming commander stated that he found approximately $5,000 worth of the missing property, including non-expendable tools and the computer monitor. Still other witnesses stated that the old motor sergeant knew that he was missing property and dumped responsibility for the shortages on the applicant.

8. The ROS IO found that property totaling $9609.60 was lost due to the applicant's negligence in failing to conduct a complete and thorough inventory of the property. The IO pointed out that the applicant signed for the property without conducting an inventory or bringing known problems to the attention of the unit supply sergeant. He recommended that the applicant, and no other individuals, be held financially liable in the amount of $1,614.30, the equivalent of 1 month's basic pay.

9. In the processing of this case, an advisory opinion was obtained from the Chief, Materiel Management Division, Headquarters, United States Army, Pacific, Fort Shafter, Hawaii. It recommends that the charges of financial liability against the applicant be reversed and that all monies collected be refunded. The opinion states the ROS was not properly completed; that statements show the losses occurred before the applicant signed the hand receipt; that key personnel were not interviewed; that the issue of command-directed 100% inventories of all sets, kits, and outfits were never accomplished; and the applicant wasn't supported or given appropriate guidance in being made to sign for the property. The advisory opinion stated that, while the applicant may have been negligent in not conducting an inventory prior to signing the hand receipt, his negligence was not the proximate cause of the shortages. The applicant was provided a copy of the advisory opinion and offered an opportunity to respond. On 3 January 2003, he concurred with the opinion.

10. 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.

11. 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

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consequences of the act. 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. 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.

CONCLUSIONS:

1. The applicant was placed in a position of immediately signing a hand receipt in order that his supervisor might be able to out-process and leave Schofield Barracks on PCS orders. He reluctantly did so after being assured that, as soon as a new supervisor was appointed, he [applicant] would be relieved of responsibility.

2. When a new supervisor was appointed, an inventory was conducted and shortages were reported. The ROS investigation did not interview the maintenance officer or key supply personnel; however, those individuals who were interviewed provided statements that suggested the old motor sergeant knew of the shortages when he turned the hand receipt over to the applicant.

3. The advisory opinion correctly points out, among other things, that no connection has been established between the applicant's actions and the shortages, thus proximate cause has not been established.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by relieving the individual concerned of financial liability in the amount of $1,614.30 imposed against him by ROS MT 16-99 and by refunding to him any monies previously collected from him to satisfy that liability.

BOARD VOTE:

__sk____ __cjp___ __jtm___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Stanley Kelley
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002081590
SUFFIX
RECON
DATE BOARDED	20030911
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.