RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 April 2004
         DOCKET NUMBER: AR2003089393


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Richard T. Dunbar		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).


1. The applicant, a U. S. Army civilian, requests that she be relieved of financial responsibility arising out of Report of Survey (ROS) Number 8-__.

2. The applicant states, in effect, that ROS Number 8-__ was deficient in that the finding of liability is not supported by substantial evidence to prove negligence. She also stated that the Tank-Automotive and Armaments Command (TACOM) Policy 7-97, dated 11 September 1997, states in paragraph 6 that financial liability will be waived in an ROS for military members and Government employees for damage caused by simple negligence resulting from accidents involving Government owned or leased vehicles. The new standard for financial liability is gross negligence. Although the policy was rescinded as of 6 February 2003, her accident occurred on 6 January 1999.

3. The applicant also states that paragraph 3 of TACOM Policy 7-97 states that it applies to "TACOM-Warren, U. S. Army Selfridge (USAC-Selfridge (sic), its subordinates, business centers, tenants, and supported PEOs that use any TACOM-Warren automobiles." Anniston Army Depot became part of TACOM on 1 October 1998. The Depot is a subordinate of TACOM-Warren; therefore, TACOM Policy 7-97 applies to Anniston Army Depot. Since she was not found liable of gross negligence, her financial liability in the amount of $438.55 should be waived.

4. The applicant provides, as supporting evidence, those documents listed on the attached List of Exhibits.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE :

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1. On page 2 of a Standard Form 91 (Motor Vehicle Accident Report) dated 6 January 1999, the applicant explained that she was backing out of the lot of Building 114 and looking out the rear window of the van when she backed into a 5-foot tall yellow pole. The accident occurred at 3:00 p.m.

2. Photographs identified as 99-159-10.TIF and 99-159-11.TIF taken at the accident site show a pole approximately 5 feet tall slightly to the right and slightly behind the passenger side of the parked van.

3. DA Form 4697 (Department of the Army Report of Survey), prepared 22 January 1999 by the Anniston Army Depot (ROS Number 8-__), indicates that the applicant was backing a 1994 Chevrolet Astro van out of the lot at Building 114 when the van made contact with a yellow pole on the passenger's side door and wheel hub. The contact damaged the door and wheel hub. An estimate placed the repair cost at $438.55.

4. The survey officer noted that the yellow paint on the pole was faded and dull and the pole itself was short and narrow, making it difficult to see when backing up. The survey officer noted that the pole no longer had any conceivable purpose for being where it was located. The survey officer found the pole to be a contributing factor toward causing the accident and recommended the responsibility for the vehicular damage to be shared, with the applicant to be accountable for $100.00 of the damages and the Depot to assume the remainder of the cost.

5. On 19 February 1999, the applicant was notified of the recommendation that she be charged for financial liability to the Government in the amount of $100.00.

6. On 23 February 1999, the appointing authority nonconcurred with the survey officer's recommendation. He did not consider the reasons given by the survey officer to be relevant to the accident. He found the applicant to be at fault in the accident and accountable for the full $438.55.

7. On 9 March 1999, the applicant was notified of the recommendation that she be charged for financial liability to the Government in the amount of $438.55.

8. On 15 March 1999, the applicant rebutted ROS Number 8-__. She stated that she operated the van with reasonable care. When she got in the van to back up, she looked in all her mirrors and looked behind her. She did not see the pole. It was concealed by the solid part of the van body. Due to the location where she was parked it was impossible to see the pole until right before the impact. She was driving less than 5 miles per hour. It was ridiculous that a small impact could cost that much. The accident was not a negligent act on her part. Had she backed the van straight out, she would not have hit the pole. She angled the wheels so that she could back out onto the street in the direction she wanted to go. She was not perfect but she did act reasonably.

9. On 16 March 1999, the Appointing Authority responded to the applicant's rebuttal. He noted that the applicant should have seen the pole as she pulled into the area and that some vehicles had blind spots. He opined that the
applicant was negligent in the fact that she backed into the pole. She should have observed the pole as she drove into the area or if she had checked the path she was to exit and backed up accordingly.

10. On 22 April 1999, the applicant was notified that financial liability had been assessed against her in the amount of $438.55.

11. On 21 May 1999, the applicant requested reconsideration of ROS Number 8-__. She questioned how she was to know the van had a "blind spot" when there were no warnings posted in the vehicle about possible blind spots. She felt she was being held to an absolute standard. It was true if she had backed straight back she would not have hit the post. But she did not back straight out. She did not know it would be impossible to see the pole when she parked the vehicle.

12. By memorandum dated 7 March 2002, the Appellate Authority denied the applicant's request for relief of financial liability as a result of ROS Number 8-__.

13. 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.

14. By letter dated 30 April 2002, the Chief, Resource Analysis Division, Anniston Army Depot informed the applicant that she was indebted to the Government in the amount of $438.55 as a result of ROS Number 8-__.

15. On 30 April 2002, the applicant petitioned for a hearing to contest the validity of the debt, to contest the amount of the debt, and to contest the terms of the debt payment. In a Statement in Support of Petition for Hearing, she incorporated her Request for Reconsideration to the Petition for Hearing. She also stated that it was unconscionable for her to be held liable as the accident occurred on 6 January 1999. She submitted her Request for Reconsideration on 21 May 1999 and she was not notified of the denial of her Request for Reconsideration until 14 March 2002 – almost 3 years after she submitted it. She had relied, to her detriment, on a de facto finding of not being held liable because such a long period of time passed that she reasonably believed the ROS process had concluded she was not liable.

16. The applicant included with her petition for a hearing a DA Form 5814-R (Financial Affidavit) indicating her expenses already exceeded her income. She
included a sworn statement, dated 17 April 2002, from her supervisor. Her supervisor stated in part that to the best of his knowledge the damaged vehicle was not repaired before it was turned back in to the Government Services Administration (GSA). He stated that it would be unfair to expect the applicant to pay for an accident in which she was not negligent and unconscionable to expect her to pay for repairs that were never made.

17. The applicant also included with her petition for a hearing a copy of TACOM Policy 7-97, dated 11 September 1997, Subject: Liability for Loss to Government-Owned and Leased Vehicles, to her petition for a hearing. The Policy stated in paragraph 3 that it applied to "TACOM-Warren, U. S. Army Garrison- Selfridge (USAG – Selfridge, its subordinates, business centers, tenants and supported PEOs (acronym unknown) that use any TACOM-Warren automobiles"). In paragraph 6, it stated that financial liability would be waived in an ROS for military members and Government employees for damage caused by simple negligence resulting from accidents involving Government-owned or leased vehicles. The new standard for financial liability was gross negligence. (TACOM Policy 7-97 was rescinded as of 6 February 2003.)

18. The applicant also provided a history of TACOM. The history showed that TACOM's headquarters in Warren, MI traces its roots to World War II. Two other TACOM locations (Anniston and Red River Army depots) also trace their origins to World War II. Another two of TACOM's organizations, Armament Research, Development, and Engineer Center at Picatinny Arsenal, NJ and Selfridge Garrison, MI, are even older.

19. By letter dated 5 October 2002, the Defense Finance and Accounting Service – Denver Center informed the applicant that an administrative hearing was appropriate and it was accomplished by reviewing the written records to validate the debt for the purpose of salary offset. The hearing determined that the financial liability accessed against the applicant was valid and the collection of $438.55 was proper for salary offset at $50.00 per pay period.

20. The Summary Record and Hearing Decision indicated that the damaged vehicle was a GSA long-term leased vehicle. It noted that when a GSA vehicle is involved in an accident, GSA advises the unit or activity of its financial liability to repair the damaged vehicle. Any damage to a GSA vehicle over and above the "fair wear and tear" should be repaired to avoid excess charges being billed to the Government when the vehicle is turned in. The applicant provided a sworn statement from her supervisor that the vehicle may have (emphasis in the original) been turned in without repairs being done. However, no documentation
was provided in the ROS package to substantiate her claim the vehicle was not repaired. It was noted that the applicant should pursue this claim with her activity to verify if the Government was charged for the repairs when the vehicle was turned in or if the repairs were accomplished before the vehicle was turned in. If it was found the vehicle was not repaired or the Government was not charged for the costs of repairs, then the approving and appeal authorities should reopen the ROS to ensure the determination to hold her financially liable was valid.

21. The Summary Record and Hearing Decision noted that, after reviewing the applicant's financial statement, her proposed repayment plan of $50.00 per pay period was fair and equitable.

22. Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes basic policies and procedures in accounting for Army property and accounting for lost, damaged, or destroyed Army property. Paragraph 2-8 states that responsibility is the obligation of an individual to ensure Government property entrusted to his or her possession and or supervision is properly used and cared for and that proper custody and safekeeping are provided.

23. Army Regulation 735-5, paragraph 3-3 states that, unless otherwise stated in loan agreements, the Army has control over and accountability for as "Army property" any property loaned to the Army by another military service or U. S. Government activity. The Army assumes liability for borrowed property. This liability may be satisfied by repairs of damaged items at Army expense.

24. 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. That determination must follow from the facts developed during a thorough and impartial investigation. Before beginning the investigation the survey officer must have an understanding of the terms "responsibility, culpability, proximate cause, and loss" as each term impacts upon a determination of financial liability. Individuals may be held financially liable for the loss, damage, or destruction of Government property if they were negligent or have committed willful misconduct and their negligence or willful misconduct is the proximate cause of that loss, damage, or destruction. Negligence is defined 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 reasonable 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.

25. Army Regulation 735-5, paragraph 13-28 defines proximate cause as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss of damage would not have occurred.

26. Army Regulation 735-5, paragraph 13-35, states that the appointing authority will review the action taken by the survey officer and make a decision as follows: (a) return the survey to the survey officer for additional investigation; (b) concur with the findings and recommendation; or (c) nonconcur with the findings and recommendations.

27. Army Regulation 735-5, paragraph 13-40 states that, before individuals are held financially liable, they must receive notice and the opportunity to exercise their rights. The notification memorandum with a copy of the ROS with all exhibits will be hand delivered to the person found financially liable. Paragraph 13-42 states that a request for reconsideration will be reviewed only on the basis of legal error (i.e., that the facts of the case do not support an assessment of financial liability). When the approving authority determines that liability should be continued, the approving authority will prepare and sign a memorandum to the appeal authority giving the basis for denying the requested relief. On receipt of a response from the appeal authority concerning the relief of continuation of financial liability, the approving authority will notify the individual by memorandum.

28. Army Regulation 735-5, paragraph 13-49b states that the appeal authority's actions will be accomplished within 45 calendar days of receipt of a request for reconsideration.

29. In the processing of this case, an advisory opinion was obtained from the U. S. Army Logistics Transformation Agency. That Agency noted that a review of the ROS investigation revealed the charges of financial liability against the respondents was just and proper. The investigating officer concluded there was negligence involved on the part of the applicant and the applicant did not deny negligence. The applicant alleged there was a TACOM policy stating the standard for assessing financial liability for vehicular accidents was gross negligence.

30. The advisory opinion noted that Department of the Army has used the standard of simple negligence to assess financial liability against military members and Department of the Army civilian employees involved in vehicular accidents involving Government-owned or leased vehicles since the early 1980s. Prior to the 1980s, the Army used gross negligence as a basis for assessing financial liability. At that time, the Army requested and received authority from Department of Defense to use simple negligence as a basis for assessing financial liability and limiting the amount of financial liability to one month base pay or the amount of the loss, whichever was less.

31. The advisory opinion noted that current policy, adopted in January 1998, does permit the ROS approving authority to waive the assessment of financial liability for vehicular accidents when there is simple negligence involved per Army Regulation 735-5, paragraph 14-30c, based on the approving authority's review of all the pertinent information concerning the accident. However, this is not blanket authority for major subordinate commands to relieve all individuals of financial liability involved in vehicular accidents. This authority should be used on a case-by-case basis, based on the approving authority's review of the ROS investigation, taking all extenuating circumstances into consideration.

32. Based on the above, the advisory opinion recommended the continuation of financial liability against the applicant.

33. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. She rebutted, stating that she did operate the van with reasonable care. Prior to backing up, she looked in all her mirrors and looked behind her. She did not see the pole. She drives a government vehicle while in the scope of her employment and thus is unable to obtain her own private insurance to cover any damage that might occur. She does not believe she should be personally liable for the damage that occurred while she was performing job-related duties. She basically reiterated the rebuttals she made in her original ROS appeals.

DISCUSSION AND CONCLUSIONS :

1. On 6 January 1999, the applicant was involved in a motor vehicle accident, after she parked the GSA-leased van she was driving, in which she backed the van into a pole. The accident caused damage to the passenger-side door and wheel hub estimated at a repair cost of $438.55.

2. The survey officer found the pole to be a contributing factor toward causing the accident as the yellow paint on the pole was faded and dull, the pole itself was short and narrow which made it difficult to see when backing up, and the pole no longer had any conceivable purpose for being where it was located.

3. Even if the applicant was not aware that even small vehicles have blind spots when mirrors alone are used to view objects behind/beside them, the accident occurred during daylight hours (3:00 p.m.). Photographs taken of the accident scene show that the pole should have been clearly visible to the applicant as she was pulling into the parking spot whether she made a right hand turn or a left hand turn into the spot.

4. The appointing authority did not consider the reasons given by the survey officer to be relevant to the accident and found the applicant to be at fault in the accident and accountable for the full $438.55. On 9 March 1999, the applicant was notified of the recommendation that she be charged for financial liability to the Government in the amount of $438.55.

5. On 21 May 1999, the applicant requested reconsideration of ROS Number 8-__.

6. By memorandum dated 7 March 2002, the Appellate Authority denied the applicant's request for relief of financial liability as a result of ROS Number 8-__. The time lapse between request for relief of financial liability and denial considerably exceeds the time limit set by regulation.

7. On 30 April 2002, the applicant petitioned for a hearing to contest the validity of the debt, to contest the amount of the debt, and to contest the terms of the debt payment. She noted it took almost 3 years for her Request for

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Reconsideration to be acted upon and she had relied, to her detriment, on a de facto finding of not being held financially liable for the accident. She contended that she reasonably believed the ROS process had concluded she was not liable. She also contended that Anniston Army Depot was a subordinate TACOM unit and TACOM Policy 7-97 dated 11 September 1997 waived financial liability in an ROS for Government employees for damage caused by simple negligence resulting from accidents involving Government owned or leased vehicles.

8. There is no evidence to show the applicant relied, "to her detriment," on the excessive time lapse as a de facto approval of her Request for Reconsideration. The applicant's initial financial assessment was for $438.55. The last document she received prior to the March 2002 denial of relief of financial liability held her liable for $438.55. She never received a document lifting that liability from her. Her final assessment in March 2002 was for $438.55.

9. There is no evidence of record to show repairs to the vehicle were not made prior to it being turned back in to GSA. There is no evidence of record to show GSA did not make the repairs or made the repairs without charging the Army the costs of repair.

10. It is acknowledged that Anniston Army Depot is a subordinate of TACOM-Warren, just as three other organizations are subordinate to TACOM-Warren. However, TACOM Policy 7-97 applied only to one of those subordinate units – U. S. Army Garrison Selfridge and its subordinates. It did not apply to Anniston Army Depot (or Red River Army Depot or Picatinny Arsenal).

11. There is no evidence to show the applicant was unfairly or inequitably assessed liability for the accident.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__mkp___ __mhm___ __rtd___ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case

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are insufficient as a basis for correction of the records of the individual concerned.




                  __Margaret K. Patterson
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089393
SUFFIX
RECON
DATE BOARDED	20040429
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	116.01
2.
3.
4.
5.
6.