RECORD OF PROCEEDINGS


         IN THE CASE OF
        

         BOARD DATE: 29 April 2004
         DOCKET NUMBER: AR2003089577

         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. Joseph A. Adriance		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that she be relieved of financial responsibility arising out of Report of Survey (ROS) Number (#) 22-xx.

2. The applicant states, in effect, that the liability finding contained in the ROS in question was unjust because it violates the Tank Automotive Command (TACOM) policy in effect at the time of her accident. She claims that TACOM policy was established on 11 September 1997 and was not rescinded until
6 February 2003. This policy stipulated that financial liability would be waived in ROS cases involving damage caused by simple negligence resulting from accidents involving government vehicles, and the standard for financial liability would be gross negligence.

3. The applicant provides the following documents in support of her application: 28 June 2002 letter from the Defense Finance and Accounting Service (DFAS);
her 2 May 2002 petition for a hearing; 3 May 2003 letter from the Chief, Resource Analysis Division, Anniston Army Depot, Anniston, Alabama;
14 March 2002 financial relief denial from the Deputy to the Commander, Anniston Army Depot; applicant request for reconsideration of ROS, dated
25 September 2001; 21 August 2001 financial liability memorandum from the Deputy to the Commander, Anniston Army Deport and ROS # 22-xx with all enclosures; TACOM Policy Letter 7-97, dated
11 September 1997; Assistant Inspector General (AIG) electronic mail (e-mail) message, dated 28 March 2003; and information documents in regard to TACOM structure and its subordinate commands.

CONSIDERATION OF EVIDENCE:

1. The applicant remains a civilian employee of Anniston Army Depot (AAD), Alabama. On 28 February 2001, she was driving a Government-owned vehicle (GOV), a pick-up truck and was involved in an accident with a privately owned vehicle (POV). The accident caused $3,358.10 in damage to the GOV. Military Police (MP) investigators responded and an accident report was taken.

2. The DA Form 4697 (Department of the Army Report of Survey), prepared
2 April 2001 by the AAD (ROS Number 22-xx) indicates that the applicant was traveling north on Roosevelt road and came to the intersection at 3rd Street. She stopped the GOV at the intersection and looked both ways and then proceeded through the intersection, at which time she collided with a POV traveling west on 3rd Street, causing damage to the GOV in the amount of $3,358.10.

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3. The survey officer noted that when the applicant stopped at the intersection to check for traffic, turrets had been lining both sides of the road, which could have made it somewhat difficult to see up and down the street. However, the survey officer determined that the applicant still had the obligation to ensure the crossing was clear and she did not do this. Further, the applicant failed to yield to an
on-coming vehicle. The survey officer concluded by stating that it was clear the applicant’s actions were not intentional or deliberate; however, her driving actions were considered the proximate cause of the damages. The survey officer finally found that the evidence supported a finding of simple negligence, and recommended that the applicant be held liable for the damage to the GOV.

4. 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.

5. On 6 June 2001, the applicant submitted a rebuttal to the findings and recommendations of ROS # 22-xx. She claimed that she exercised reasonable care, which was the regulatory standard required of her. She further commented that as she had pointed out in the initial review, when she got to the intersection, she stopped and looked both ways; however, it was very difficult to see because of the turret carts lining the side of the road. She stated that the area was a hazard that was caused by the AAD management. She further pointed out that the survey officer herself stated that the road was blocked with parked turrets, and the word blocked was an accurate description. She also commented that management had, in effect, admitted that the parked turrets were an obstruction by the action they took to move them after the accident.

6. On 7 June 2001, the survey officer responded to the applicant’s rebuttal. She commented that after reviewing the applicant’s rebuttal, she re-examined the accident site and found that nothing was blocking either side of the road. She further stated that any person who stopped at the sign would not have had any problem seeing in both directions. She concluded that the applicant had provided no new evidence and she continued to recommend the applicant be held liable in the amount of $3,358.10.

7. On 16 August 2001, a legal review of ROS # 22-xx was conducted by the AAD legal counsel. Counsel noted the applicant’s rebuttal comments, which indicated that turrets obstructed her view of the oncoming traffic and prevented her from ensuring the intersection was clear. However, he stated that he must defer to the survey officer’s exhaustive investigation and determination that the applicant’s vision was not sufficiently obstructed to prevent her from seeing the oncoming POV. Counsel finally opined that the ROS findings and recommendations were legally sufficient and could be approved.

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8. On 21 August 2001, the appointing authority notified the applicant that financial liability had been assessed against her in the amount of $3,358.10 for the damage to government property investigated in ROS # 22-xx.

9. On 21 September 2001, the applicant requested reconsideration of the ROS. She stated that her actions were not negligent and that the accident was caused by a combination of circumstances that were caused by the obstruction caused by the parked turrets at the intersection and the other driver’s excessive speed. She stated that she acted as any reasonable person would act and while she is not perfect, but she was not expected to be.

10. In her rebuttal, the applicant raised further questions in regard to the investigation. First, she asked when the re-examination of the accident site was done by the survey officer. She stated that if it were after the obstructions were moved, the survey officer would not have had anything blocking her view at the site. She also asked if the survey officer was a qualified accident investigator or was this just personal opinion.

11. The applicant also questioned legal counsel’s use of the term sufficiently obstructed in the legal review. She stated that if there is any obstruction, it would have impeded her ability to see at the intersection. Thus, the obstruction should be the proximate cause of the accident, not her negligence as was indicated in the ROS. She further states that members of the Directorate of Public Works staff of AAD indicated that they had been addressing the intersection and items there blocking the vision at the intersection in question with the Safety office for four or five years. However, this fact was also not addressed in the ROS.

12. The rebuttal concluding comments of the applicant were that her actions should have been judged by a standard of reasonableness, and that in her case it could not be said that she did not act as a reasonably prudent person would when faced with the same situation. She claims that to say she was negligent, is holding employees to an absolute standard, which was unfair and in violation of the governing regulation.

13. On 7 March 2003, the appellate authority reviewed the applicant’s reconsideration request and denied her request for relief of financial liability. The applicant was advised that she had 30 days to request a hearing.

14. On 2 May 2002, the applicant requested a hearing. In her request, the applicant restated the arguments she had presented in her previous rebuttal and asked that her actions be judged on the regulatory standard of reasonableness.

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15. On 28 June 2002, the applicant was notified in a memorandum from a DFAS Hearing Examiner of the results of the hearing conducted in her case. The hearing decision was that the debt of the applicant was valid. The hearing official found that the applicant had been afforded due process.

16. TACOM Policy Letter 7-97, contains policy pertaining to the level of negligence for auto accidents involving government owned or leased vehicles. It stated, in pertinent part, that financial liability would be waived in a ROS for damage caused by simple negligence resulting from accidents involving government owned and leased vehicle. The new standard for financial liability was gross negligence. Paragraph 3 of this policy letter stipulated 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"). AAD, the applicant’s installation, became a part of TACOM on 1 October 1998. Policy Letter 7-97 was rescinded as of 6 February 2003.

17. In connection with the processing of this case, a member of the Board staff contacted a labor representative at Anniston Army Depot. This representative confirmed that the degree of negligence for a financial liability by a ROS is not covered by their collective bargaining agreement. In addition, a member of the Inspector General (IG) staff was contacted to determine the applicability of TACOM Policy Letter 7-97 to employees of AAD. The IG representative stated that the policy letter in question was not reissued after it was rescinded in February 2003, and that as written the Policy Letter applied only to USAG Selfridge and to no other TACOM installations.

18. An advisory opinion was obtained from the United States Army Logistics Transformation Agency (USALTA), Fort Belvoir, Virginia, the responsible Department of the Army (DA) agency. It stated that a review of the ROS investigation conducted in this case revealed that the charge of financial responsibility was just and proper. In regard to the gross negligence standard outlined in the TACOM policy letter in question, this official indicated that DA has used a simple negligence standard for assessing financial liability in vehicular accidents since the early 1980s. Prior to that time, DA used a gross negligence as the basis for assessing financial liability.

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19. DA obtained the authority to use simple negligence as the basis for assessing financial liability and limiting the amount of financial liability to one month base pay or the amount of loss, whichever was less from Department of Defense in the early 1980s. In January 1998, the current policy was enacted. It permits the ROS approving authority to waive the assessment of financial liability for vehicular accidents when there is simple negligence 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. Based on the existing policy, this agency recommends the continuation of financial liability in this case.

20. On 31 March 2004, the applicant provided a rebuttal to the USALTA advisory opinion. She outlines the regulatory policy on negligence and again provides her arguments on why she should have not been found negligent by the survey officer. She further lists factors that should have been addressed by the survey officer that would have shown she was not negligent. Finally, she asserts, in effect, that she does not believe that the TACOM policy could have applied to just to Selfridge and that if this were the case the major command was treating its subordinate units differently, which would make its policy arbitrary and capricious. She further argues, in effect, that a thorough review of her case will show she was not negligent based on the conditions that existed at the time of the accident and because an unbiased reading of the TACOM policy letter should show that it applied or should have applied to AAD at the time of her accident.

21. 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. Chapter 13 contains the policy for the ROS system and stipulates 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 civilians will be established as the equivalent of 1/12th of the annual pay at the time of the loss, or the actual amount of the loss to the Government, whichever is the lesser amount.

22. 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 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. 23. The Consolidated Glossary for Army Regulation 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. 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’s claim that the debt incurred as a result of ROS #22-xx was unjust was carefully considered. However, there is insufficient evidence to support this claim.

2. The ROS #22-xx survey officer concluded, after an extensive investigation of the site and taking into consideration the obstruction outlined by the applicant, that the applicant’s simple negligence was the proximate cause of the accident. The approved ROS assigned financial liability in the amount of $3,358.10 for the damage to the GOV to the applicant. .

3. On 7 March 2003, the appellate authority reviewed the applicant’s reconsideration request and denied her request for relief of financial liability.

4. On 28 June 2002, the applicant was notified, in a memorandum from a DFAS Hearing Examiner, of the results of the hearing conducted in her case. The hearing decision was that the debt of the applicant was valid. The hearing official found that the applicant had been afforded due process.

5. The AAD Assistant IG confirms that TACOM Policy Letter 7-97 was not applicable to their personnel. Further, the AAD Labor Representative verifies that the ROS assessment of financial liability in vehicular accidents is not covered in the installation collective bargaining agreement. Finally, a review conducted by the responsible DA Agency has resulted in a determination that the charge of financial liability in this case was proper and just. As a result, there is an insufficient evidentiary basis to support a change to the financial liability assessed in this case by a properly conducted ROS, which has been upheld through the appellate process.

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BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

MM___ __MKP___ __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 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	AR2003089577
SUFFIX
RECON
DATE BOARDED	2004/04/29
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2.
3.
4.
5.
6.