| Mr. Carl W. S. Chun | Director | |
| Ms. Carolyn Wade | Analyst |
| Ms. Kathleen A. Newman | Chairperson | |
| Mr. Kenneth L. Wright | Member | |
| Mr. Eric N. Anderson | Member |
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
2. The evidence of record shows that, at approximately 1315 hours on 13 June 2002, the applicant the driver of a GOV and was attempting to pass a semi-truck on a rain-soaked, two-lane highway when he was involved in a collision with a minivan. The applicant had passed about 75 percent of the semi-truck when he saw the approaching minivan. He could not complete the pass or get back behind the truck, so he moved as far to his right as the semi-truck would allow. Unfortunately, he and the minivan sideswiped each other.
3. Civilian police responded and completed an accident report. It is unclear from the civilian police report whether the applicant was charged with an offense under the Minnesota Statutes, Chapter 169 (Traffic Regulations).
4. On 21 June 2002, an ROS was initiated and a surveying officer was appointed on 28 June 2002. The surveying officer completed her investigation on 7 August 2002. She found that the damage done to the GOV was due to a lack of judgment by the applicant in trying to pass two semi-trucks in rainy weather on a two-lane road. She indicated that the applicant began passing the semi-truck immediately in front of him and did not see the oncoming minivan because it was obscured by road spray coming from the second semi-truck which was further down the road in front of the truck he was passing. Damage to the GOV was assessed at $4,371.74. It was recommended that the applicant be held financially liable in the amount of $2, 482.92, one month's pay.
5. On 12 August 2002, the applicant provided a rebuttal statement to the ROS findings and recommendation. The ROS appointing authority rejected the applicant's rebuttal argument and concurred with the findings and recommendation of the surveying officer. The approving authority approved the ROS on 4 September 2002. On the same date, the applicant was notified of the finding as well as his rights.
6. On 25 September 2002, the applicant requested reconsideration of the decision to assess financial liability and based his request on legal error. On 15 October 2002, the Brigade Commander reviewed the applicant's request for reconsideration and declined to reverse the original decision of financial liability in the amount of $2, 482.92. The applicant's request was forwarded as an appeal in accordance with paragraph 13-42b, Army Regulation 735-5.
7. On 21 January 2003, the appellate authority denied the applicant's request for reconsideration and noted that the decision was final and no further request for reconsideration was allowed. The applicant was advised that he had the right to request remission or cancellation of indebtedness under the provisions of Army
Regulation 600-4 and that he could address the Army Board for Correction of Military Records if all other avenues of redress failed. The appellate authority noted that the applicant's indebtedness would be pro-rated over a 12-month period.
8. On 23 January 2003, the applicant was notified that his ROS was considered closed at the Brigade level and been processed to his servicing Finance and Accounting Office.
9. On 1 April 2003, the applicant submitted a petition to this Board for relief of financial liability imposed against him by ROS Number XXXX-02.
10. In connection with processing this case, an advisory opinion was obtained from the U.S. Army Recruiting Command, Staff Judge Advocate's Office. It states that the surveying officer's findings and recommendation, and the approving authority's actions in finding that the applicant violated a particular duty involving the care of the GOV are correct in law and fact. It states that the applicant was negligent in attempting to pass because he could not see the lane of oncoming traffic ahead due of weather and road conditions. It also states that it was clearly shown that the applicant was the proximate cause of the damage to the GOV, not the other driver. In conclusion, it states that the ROS finding of liability is legally sufficient.
11. 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.
12. 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. 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 AND CONCLUSIONS:
1. The applicant, as the operator of the Government vehicle, had a personal responsibility to exercise reasonable and prudent actions to properly use, care for, and safeguard that vehicle.
2. The applicant was negligent in passing a semi-truck in that he did not determine that he could safely make the pass when he pulled into the opposite lane of traffic. His view of an oncoming vehicle was obscured by road spray from a second semi-truck in front of the truck he was attempting to pass.
3. The evidence of record shows that the ROS was properly accomplished, that the evidence supported the findings, and that the findings and recommendation were legally sufficient.
4. The Board concurs with the findings of the ROS that the applicant was negligent in the operation of the GOV and that his negligence was the proximate cause of the accident.
BOARD VOTE:
________ ________ ________ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
__kan___ __klw___ __ena___ DENY APPLICATION
| CASE ID | AR2003087987 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20040304 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 128.1000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2003 | 2003089577C070403
On 29 May 2001, the Survey officer notified the applicant of the ROS recommendation that she assessed financial liability in the amount of $3,358.10 for the damage to the GOV. Thus, the obstruction should be the proximate cause of the accident, not her negligence as was indicated in the ROS. Paragraph 13-28 of the same regulation states that a survey officer's responsibility is to determine the cause and value of the loss, damage, or destruction of Government property listed on the ROS and...
ARMY | BCMR | CY2002 | 2002067250C070402
On 19 January 2001, the applicant was notified that he was being recommended for financial liability to the United States Government in the amount of $3,152.00 for losses investigated in ROS Number 15-01. On 24 April 2001, the applicant was officially notified by memorandum that he had been assessed financial liability in the amount of $3,152.00 for losses investigated in ROS Number 15-01. The applicant's act of simple negligence was the proximate cause of the traffic accident that led to...
ARMY | BCMR | CY2003 | 2003083686C070212
The applicant requests correction of military records as stated in the application to the Board and as restated herein. 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. 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:
ARMY | BCMR | CY2002 | 2002067958C070402
The Board considered the following evidence: APPLICANT REQUESTS: That he be relieved of financial liability in the amount of $1,417.50 imposed against him by Report of Survey (ROS) Number 44-00, dated 15 May 2000. Chapter 13 of Army Regulation 735-5 states that the Government may impose a finding of financial liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage, or destruction of Government property.
ARMY | BCMR | CY2003 | 2003091285C070212
The applicant was assigned recruiting duty with the Raleigh Recruiting Command in April 2000. The fact that the applicant was unable to stop in time to avoid hitting the vehicle in front of her shows that she was following too close for the conditions under which she was operating the vehicle. This amounts to a finding of simple negligence and places the determination of whether or not to afford the applicant a waiver of financial liability based on a matter of equity as determined by the...
ARMY | BCMR | CY2006 | 20060017026
Financial liability can be assessed against any person who fails, through negligence or misconduct, to perform duties of responsibilities and where such failure is the proximate cause of damage to the U.S. Government. Paragraph 13-29c of Army Regulation 735-5 states that before holding a person financially liable for a loss to the Government, the facts must clearly show that the persons conduct was the proximate cause of the loss, damage, or destruction (LDD). Whether or not speed was a...
ARMY | BCMR | CY2003 | 2003089393C070212
By letter dated 14 March 2002, the Deputy to the Commander, Anniston Army Depot informed the applicant that the Appellate Authority denied her request for financial relief of charges on ROS Number 8-__ in the amount of $438.55. Army Regulation 735-5, paragraph 13-28 states that a survey officer's responsibility is to determine the cause and value of the loss, damage, or destruction of Government property listed on the ROS and to determine if assessment of financial liability is warranted. ...
ARMY | BCMR | CY2014 | 20140008452
The applicant requests reconsideration of his previous request for relief from financial liability in the Financial Liability Investigation of Property Loss (FLIPL) (W17MAAXXXX-10) decision. The summary of the record and hearing decision determined the applicant received due process rights in accordance with Army Regulation 735-5. The hearing determined the financial liability assessed against the applicant in the amount of $3,552.25 was valid and collection by salary offset was proper.
ARMY | BCMR | CY1996 | 9608154C070209
APPLICANT STATES: That the ROS contains procedural errors in that the ROS officer appointed to conduct the survey was a captain, as was the applicant; the ROS was not completed within the prescribed 30 day time frame; the survey was processed for collection before his request for reconsideration was completed. DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory...
ARMY | BCMR | CY2001 | 2001059184C070421
The applicant provided a rebuttal to the ROS on 1 July 1997 in which he stated that the van’s mechanical defects were the proximate cause of the accident, therefore he should not be held liable and requested financial relief. He once again argued that the van’s mechanical defects were the proximate cause of the accident; that the anti-lock braking system was defective, that his reckless driving charge was reduced to operating an unsafe vehicle; and that because of these arguments; he should...