MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 11 September 2003
                  DOCKET NUMBER: AR2003083686

         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. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		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 the finding of financial liability imposed against him by Report of Survey (ROS) #67-01, US Army Garrison, Aberdeen Proving Ground (APG), Maryland.

APPLICANT STATES: In effect, that he was taking a prescription medicine (Wellbutrin) which caused "a momentary loss of focus and panic" that contributed to his damaging a Government-owned vehicle (GOV). He believes that the drug, not negligence on his part, caused the accident.

EVIDENCE OF RECORD: The records show:

The applicant is an Army civilian employee, Wage Grade 10 (WG-10), working at the Aberdeen Test Center, APG, Maryland. On 28 July 2001, he was on duty driving a GOV. He stopped at a gas station to inflate the tires of the vehicle. When he finished and pulled away, he turned short, hitting a protective metal bollard and causing $1,985.32 worth of damage to the left (driver's) side of the vehicle.

The applicant immediately contacted the APG Police Department. Officers responded and a DA Form 3946 (Military Police Traffic Accident Report) and a DA Form 3975 (Military Police Report) were completed. The applicant rendered a statement saying, "I was at the gas station in Edgewood getting air in right front tire, was leaving and cut the corner too short hitting pole at edge of island . . ." He made no mention of his use of prescription drugs.

On 9 August 2001, the subject ROS was initiated. A surveying officer was appointed on 17 September 2001 and an investigation was conducted. The investigation was concluded on 18 September 2001. The survey officer noted that the damage to the GOV was extensive, beginning at the front of the driver's door and extending to the rear of the vehicle. He felt that this was unusual because he believed a normal driver would have stopped immediately, thereby minimizing the extent of damage. When he questioned the applicant as to why he didn't stop when he made initial contact with the bollard, the applicant replied, "I don't know." He found the applicant to be negligent and recommended that he be held financially liable in the amount of $1,985.32 for the damage.

On 24 September 2001, the applicant was notified that he was being recommended for financial liability in the amount of $1,985.32 as a result of the findings of the ROS. He acknowledged notification on 9 October 2001 and indicated his desire to rebut the findings and recommendation. At that time, the applicant argued that his use of a prescription drug, Wellbutrin, caused a momentary loss of focus and panic which, in turn, caused the accident. He noted that Wellbutrin is an anti-depressant similar to Buspar and Zoloft.

After considering the applicant's rebuttal, the survey officer stated that the applicant's argument "merits some attention." He stated that the applicant did not deliberately or intentionally damage the vehicle and that "negligence was [not] the issue." He concluded that "quite possibly the medication was the factor." Nonetheless, he stood by his original recommendation to hold the applicant financially liable.

The ROS was reviewed and found to be legally sufficient and the applicant rebuttal unpersuasive. He was so notified on 14 January 2002. The applicant then submitted a request for reconsideration on 4 March 2002. He again argued that his perception was diminished due to the use of the prescription anti-depressant and provided a statement from his physician concerning "possible" effects while also stating "medicines have not impaired his functional capacity." He stated that the surveying officer did not want to hold him liable, but the Staff Judge Advocate's Office insisted that the original finding of the ROS remain intact. The request for reconsideration was denied.

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 civilian employees 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. 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.

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. This is a simple motor vehicle accident. The applicant was the operator of a GOV. He pulled up to a service island at a gas station with the island on his left (driver's) side. When he pulled away, he turned sharply to his left and struck a protective bollard with the left side of his vehicle. His action constituted simple negligence and was the proximate cause of the accident.

3. The applicant's use of the prescription drug Wellbutrin, an anti-depressant, has not been shown to have had any effect in causing the accident. A note from his doctor and provided by the applicant stated "Medicines have not impaired his functional capacity." Even if the medication had played a role, it wouldn't limit the applicant's culpability because he should not have been driving under those circumstances and to do so would have been negligent.

4. The ROS was conducted in accordance with applicable regulations and reached the appropriate conclusion and recommendation. The surveying officer's statement following consideration of the applicant's rebuttal that "negligence was [not] the issue . . . [and] quite possibly the medication was the factor" does not invalidate the results of the survey.

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

__sk____ __cjp___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083686
SUFFIX
RECON
DATE BOARDED	20030911
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.