RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 15 January 2004
         DOCKET NUMBER: AR2003088403


         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. Paul Wright		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Allen L. Raub		Member
Mr. William D. Powers		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE :

1. The applicant requests reversal of the finding of financial liability in Report of Survey (ROS) #XX-XX-018 for $506.15.

2. The applicant states that he does not owe this money for the equipment; that the equipment was stolen; and per direction from his unit, a police report was filed and the equipment was considered a field loss. All pertinent paperwork concerning the theft was given to the unit.

3. The applicant provides a Police Event Report, dated 2 March 2000, with attachments; a copy of two envelopes pertaining to returned mail; and a letter from the applicant to his former unit, dated 26 February 2003, with attachments

CONSIDERATION OF EVIDENCE:

1. The applicant served on active duty from 12 November 1992 through 11 November 1996 at which time he was released from active duty. He later joined a US Army Reserve (USAR) unit and extended his commitment until he was honorably discharged on 29 October 2001.

2. On 2 March 2000, a female with no discernible relationship to the applicant reported to the Hillsboro (Oregon) Police Department that her car had been broken into on 23 January 2000. She indicated that the vehicle, a 1995 Ford Explorer, was parked in an apartment parking lot at 9:30PM and all doors were locked. At 8:00AM the next morning, the vehicle was unlocked and the contents of the glove box and center console were scattered on the front seats and floor; items on the back seat had been disturbed; and the applicant's duffle bag with organizational clothing and equipment (OCE) was missing. The police prepared an Event Report Form. There is no explanation of why the female waited from January until March 2000 to report the crime.

3. On 29 October 2001, the applicant was discharged from his unit apparently without properly clearing his unit supply section in regards to his OCE issued on DA Form 3645-1 (Additional Organization Clothing and Individual Equipment Record).

4. On 12 February 2002, the unit property book officer discovered that the applicant was still signed for equipment. On 15 February 2002, a certified letter was sent to the applicant's last known address advising him that the equipment needed to be turned in or collection action would be initiated. This letter was returned as unclaimed.

5. On 10 May 2002, a DA Form 4697 (Department of the Army Report of Survey) with Survey Number XX-XX-018 was initiated by the unit property book officer because the applicant had a valid, signed DA Form 3645-1 for equipment which had not been turned in at the time of his discharge. The commander determined that it was unnecessary to investigate the matter; there was positive evidence that the applicant was responsible for the equipment and that he failed to return it. He determined the applicant should be held financially liable in the amount of $506.15 for the loss of the equipment; this amount does not appear to have been depreciated by 10 percent as required by regulation.

6. On 2 June 2002, a letter was sent to the applicant advising him of the finding of financial liability.

7. Chapter 13 of Army Regulation (AR) 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. The total amount of financial 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.

8. AR 735-5 further provides that when the ROS approving authority can establish from the information contained in the basic survey that negligence or willful misconduct was the proximate cause of the loss, damage, or destruction, he or she may assess financial liability without appointing a survey officer or without conducting any further investigation. This is a so-called "short survey."

9. AR 735-5 also provides, at Appendix B, a method of determining the fair market value of lost, damaged, or destroyed property. It states that OCE property will be depreciated by 10 percent when determining the amount of financial liability to be imposed.

10. 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. 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 AND CONCLUSIONS :

1. The applicant was issued the OCE on 9 January 1999 for his personal use while assigned to the unit. He was separated on 29 October 2001, but did not return the equipment to his unit supply room. The discrepancy was noticed on 12 February 2002 and a certified letter was sent to the applicant asking him to return the equipment. The letter was undelivered.

2. The applicant did not properly clear his unit supply room when he separated. Had he done so, he would have been given information at the time of his separation that he was still signed for the equipment and would have been instructed to return it or pay for it. The applicant has not provided, nor does his record contain, a copy of either DA Form 137-1 (Installation Clearance Record) or DA Form 137-2 (Unit Clearance Record) showing that he was properly cleared.

3. The alleged theft of the applicant's OCE, as cited in the Hillsboro police report, is suspect for several reasons. The applicant's OCE was stored in a second person's privately-owned vehicle, not in the applicant's home or vehicle. The OCE was in plain view in the rear cargo area of a Ford sport utility vehicle (SUV). The vehicle was allegedly broken into, but the only thing taken was the applicant's OCE. Finally, the alleged theft occurred on 23 January 2000, but it is not reported to police until 2 March 2000.

4. It is unclear whether the applicant ever provided a copy of the police report to his unit between March 2000 and his separation in October 2001, or if he did, what action the unit took.

5. Assuming the applicant's OCE was stolen in March 2000, it appears that his negligence in safeguarding his equipment was the proximate cause of the loss. By placing his equipment in the back of an SUV, in plain view of any passerby, he did not demonstrate that degree of care for the property that a reasonably prudent person would have taken under similar circumstances, to avoid the loss, damage, or destruction of Government property. In effect, he was inviting its theft. The applicant was also negligent in not immediately reporting the theft.

6. The applicant appears to have been charged the full Army Master Data File (AMDF) price of $506.15 for the missing OCE. He should only have been charged $455.53 after a 10 percent depreciation.

BOARD VOTE:

__ mkp ___ __ alr ___ __ wdp ___ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION


1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that his financial liability in the subject ROS is only $455.53 vice $506.15 and by refunding to him any amount already paid beyond $455.53.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the reversal of the finding of financial liability in Report of Survey (ROS) #XX-XX-018.




                           Margaret K. Patterson
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088403
SUFFIX
RECON
DATE BOARDED	20040115
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.