RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            APRIL 29, 2004
      DOCKET NUMBER:   AR2003089397


      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. Jessie B. Strickland          |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Margaret Patteson             |     |Chairperson          |
|     |Mr. Melvin Meyer                  |     |Member               |
|     |Mr. Richard 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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the Board reverse the findings of a report
of survey which found him financially liable.

2.  The applicant states, in effect, that he should not have been found
financially liable in the amount of $1,794.75, the cost to repair a vehicle
that he damaged.  He further states that the accident was a result of
simple negligence and was not a result of gross negligence, which was the
standard at the time of his accident to be held liable under Policy #7-97.
Accordingly, he should have the funds returned to him.

3.  The applicant provides a copy of the report of survey and a copy of
Tank-Automotive Command (TACOM) Policy 7-97.

CONSIDERATION OF EVIDENCE:

1.  On 17 June 1999, the applicant, a Department of the Army civilian (GS-
07), lead guard, struck the right rear wheels of a tractor pulling a
decontamination trailer causing $1,794.75 worth of damage to the government
leased pickup truck he was driving.

2.  On 22 July 1999, a report of survey was completed in accordance with
Army Regulation 735-5 and the investigating officer found that the vehicle
was damaged as a result of negligence caused by the applicant and
recommended that he be held liable for damages in the amount of $1,794.75.

3.  The report of survey was referred to the applicant and he elected to
submit a statement in his own behalf whereas he disagreed with the
conclusions in the report of survey and contended that he was hit by the
rear wheels of the tractor, vice he hit the rear wheels of the tractor.

4.  The appropriate authority approved the findings and recommendation of
the survey officer on 7 September 1999 and on 15 September 1999, a
memorandum was forwarded to the applicant advising him that financial
liability had been assessed against him in the amount of $1,794.75.  He was
also advised of his rights and was informed that he could request
reconsideration of his case if the case was based on legal error.

5.  The applicant submitted a request for reconsideration on 14 October
1999 contending that the other driver was negligent and that he should be
relieved of financial liability for the damage caused to his vehicle.

6.  The applicant's request was forwarded to the Depot Commander on
22 November 1999 and it appears that it was given to the staff judge
advocate's office, where it remained until 16 January 2002, when a legal
review was conducted and it was determined that the report of survey was
legally and factually sufficient.

7.  The Depot Commander denied his request for reconsideration on 7 March
2002 and on 14 March 2002 he was notified of the denial and his right to
request a hearing.  The applicant submitted a petition for a hearing on 3
April 2002 to contest the validity and amount of the debt against him.

8.  On 3 July 2002, the Defense Finance and Accounting Service (DFAS)
returned the applicant's petition to the installation for an explanation as
to why the applicant's appeal (request for reconsideration) had taken 2 ½
years to complete.  The installation chief counsel responded to the request
by stating that the Depot Legal Office had been understaffed for years and
was still understaffed and that reports of survey were superseded by other
legal demands.

9.  On 8 January 2003, the DFAS dispatched a letter to the applicant
informing him that an administrative hearing had been conducted in his case
and a determination had been made that the financial liability assessed
against him was valid and correct.  He was further advised that his only
recourse for appeal was to this Board.  The applicant paid the $1,794.75 on
17 January 2003.

10.  In the processing of this case a staff advisory opinion was provided
by the Army Logistics and Transformation Agency (ALTA) which opines, in
effect, that simple negligence is the standard used by the Army to assess
financial liability against military members and Department of the Army
civilian employees involved in vehicular accidents involving government
owned or leased vehicles.  Officials at the ALTA opined that the applicant
should continue to be held financially liable.  The opinion was provided to
the applicant for rebuttal and to date no response has been received by the
staff of the Board.

11.  Army Regulation 735-5 provides policies and procedures for
accountability of Army property and provides the procedures for conducting
reports of survey.  It provides, in pertinent part, that a report of survey
documents the circumstances concerning the loss, damage, or destruction of
government property and serves as, or supports a voucher for adjusting
property from accountable records.  It also documents a charge of financial
liability assessed against an individual or entity, or provides for relief
from financial liability.  A report of survey is mandatory when negligence
or willful misconduct is suspected as the cause, and the individual does
not admit liability and refuses to make voluntary reimbursement to the
government for the full value of the loss, less depreciation.
Supplementation of the regulation is prohibited without prior approval from
the Director, United States (U.S.) Army Logistics Integration Agency in New
Cumberland, Pennsylvania.

12.  TACOM Policy 7-97 dated 11 September 1997 provided a general policy
for the level of negligence involving government owned or leased vehicles
and applied to TACOM-Warren, U.S. Army Garrison – Selfridge, its
subordinates, business centers, tenants and supported activities that use
any TACOM-Warren automobiles.  It provided, in pertinent part, that
financial liability would be waived in a Report of Survey for military 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.  TACOM Policy 7-97 was
rescinded on 6 February 2003.  Anniston Army Depot, the applicant's
installation, became a part of TACOM on 1 October 1998.

DISCUSSION AND CONCLUSIONS:

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.  Although the report of survey appeals process was not conducted in a
timely manner, it was conducted in accordance with the applicable
regulation (less timeliness) with no indication of any violations of the
applicant's rights.

3.  The applicant was afforded due process in each of his appeals and while
the outcome did not change, the applicant was not required to pay the
financial liability assessed against him until all appeals had been
properly exhausted.

4.  The Board has noted his contention that he should not have been held
liable for the damages caused to the vehicle because it involved simple
negligence and the TACOM Policy 7-97 specified that gross negligence was
required.  However, the language in the TACOM Policy 7-97 clearly
delineates that the policy applied only to TACOM-Warren automobiles, which
are located in Michigan.

5.  The applicable regulation required that a report of survey be conducted
in this case and the evidence presented with the report of survey supports
the findings and recommendations of the survey officer.  Accordingly, there
is no basis to reverse the findings of the report of survey.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

mm_____  mp_____  rd    _____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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





            ___Margaret Patterson__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003089397                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040429                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  1024 |116.0100/RPT OF SURVEY                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |