RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           20 April 2004
      DOCKET NUMBER:   AR2003091285



      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. G. E. Vandenberg              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Ms.Jennifer L. Prater             |     |Member               |
|     |Mr. Lawrence Foster               |     |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 her indebtedness based on the findings of a
report of survey be remitted or cancelled.

2.  The applicant states that there was no alleged misconduct and that the
evidence does not show that she was liable for the accident.

3.  She further states, in effect, that she and other operators of
government owned vehicle (GOV) are unable to obtain private insurance, this
in essence required the drivers to act as insurers of the government in
order to perform their assigned duties.

4.  The applicant provides an extensive packet of documents relating to the
accident and the subsequent findings that she was liable.  It also includes
a long, 15 April 2002, memorandum to the Inspector General (IG) about this
incident as well as other complaints about her chain of command.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 29 May 1997.  On 7 March 2000 she
extended her enlistment in order to meet the service requirements for
participation in the Corporal Recruiting Program.

2.  Prior to her assignment with the Raleigh Recruiting Command, the
applicant had been awarded an Army Achievement Medal and two Army
Commendation Medals for her “dedication and attention to detail.”

3.  The applicant was assigned recruiting duty with the Raleigh Recruiting
Command in April 2000.  Her performance with the Raleigh Recruiting Command
resulted in her receiving the Basic Recruiters Badge with three gold
achievement stars and the Recruiters Gold Badge with three sapphire stars
for excellence in the performance of her duties.

4.  On 25 February 2002, while in the performance of her duties, the
applicant, as the driver of a GOV, was involved in an automotive vehicle
accident wherein she rear-ended a privately owned vehicle (POV).  There
were no citations issued by the police.

5.  The police report states that the accident occurred under dry road
conditions. The estimated speed of the applicant’s vehicle was 35 miles per
hour (mph) in a 45 mph zone prior to striking the other vehicle.  At the
time of the impact her
speed was estimated at 20 mph and the speed of the other vehicle as
approximately 10 mph.  There is no indication that the airbags in either
vehicle inflated.  On the accident report form, the officer indicated the
cause of the accident as failure to slow quickly enough to prevent impact.
The report also shows that the GOV under-rode the POV.  It does not
indicate that there were any tire impressions (skid marks) before the
impact.

6.  As a result of the accident and the damage to the government vehicle,
her command directed that a Report of Survey (ROS) investigation be
undertaken.

7.  The preliminary findings were that the applicant was negligent because
she had been following too close to another vehicle.  She was originally
advised that her liability for the $1,696.92 damage would be $600.00.

8.  The applicant appealed this decision indicating that fatigue, caused by
her work schedule, was a major factor in the accident and requested a
formal Report of Survey be undertaken.

9.  In her 19 April 2002 statement to the investigating officer she states
that she believed that fatigue was a factor in the accident.  She indicated
that although she had gone to bed at approximately 1800 but was unable to
get to sleep until after 2000.  She awoke at 0115 to prepare to pick up her
recruit applicant and get her to the MEPS (Military Enlistment Processing
Station) before 0530.  She states that she had requested permission to
arrive later, since the applicant did not need to be at the MEPS until
0830, but was told by her immediate supervisor to report at 0530.  The
applicant indicated that the accident occurred at approximately 1400.

10.  Both the applicant and a witness, the recruit candidate in the car,
indicated that the weather was dry, traffic was heavy and slow, and that
the vehicle immediately in front of the applicant “slammed” on its breaks.
They both indicate that the applicant locked her brakes and skidded but was
unable to stop before hitting the rear of the other vehicle.

11.  The ROS investigating officer found that the applicant was negligent
in operating the GOV by not adhering to the minimum safe distance under
either the 2-second rule or by being 3 to 4 car lengths behind the vehicle
in front of her.  The investigating officer discounted the applicant’s
contention that fatigue was a factor in the accident.  The finding of
liability due to negligence required that the applicant be held liable for
the cost of repairs not to exceed the equivalent of one month’s pay.

12.  In the development of the report of survey, it was noted that the
applicant had other means of transportation available to her and her
recruit candidate if she felt she was unable to operate the GOV safely.
The applicant countered this with a statement indicating that the recruit
candidate was not feeling well and had to return to her home at a time not
consistent with the alternative transportation available.

13.  The applicant appealed the finding and decision that she was negligent
and should be held liable for the cost of repairs.  She contended that the
imposition of the indebtedness had caused her significant financial
distress and asks if she is found liable that the indebtedness be waived
due to her financial situation especially in light of her current high cost
overseas assignment.

14.  The applicant submitted a 15 April 2002 memorandum, which she
characterizes as an Inspector General complaint, to support that she was
having problem with members of her command.  She does not request that any
action other than related to the report of survey be undertaken related to
this submission.

15.  An advisory opinion was obtained from the Army Logistics
Transformation Agency, Architecture and Policy Division.  Included in this
opinion is an assessment of the case from the Staff Judge Advocate (SJA)
Attorney-Advisor.  The SJA rendered the opinion that the findings of the
survey officer and the approving authority that the applicant should be
found negligent were correct in fact and law.  The SJA also noted that in
accordance with (IAW) Army Regulation 735-5, paragraph 13-39b the maximum
liability that could be assessed against the applicant is equal to one
month's pay.  He noted that the applicant had been assessed the total
amount of repair which is $16.62 more than her pay.  He indicated that this
amount should be refunded to the applicant.

16.  Army Regulation 735-5 sets forth the policies and procedures for
property accountability.  The following are pertinent paragraphs to this
case:

      a.  Paragraph 2-1a states that all persons entrusted with Government
property are responsible for its proper use, care, custody and safekeeping.


      b.  Table 12-3 limits the liability of a service member for the loss
arising from a single incident to 1-month's base pay.


      c.  Paragraph 13-1 states 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 the 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.


      d.  Paragraph 13-2 states, in pertinent part, that a report of survey
must be made to account for any lost, damaged, or destroyed U.S. Government
property when negligence or willful misconduct is suspected as the cause,
or the loss or damage involves a GSA vehicle.

      e.  Paragraph 13-28 states that before a person can be held
financially liable, the facts must show that he or she, through negligence
or willful misconduct, violated a particular duty involving the care of the
property.  It describes simple negligence as the absence of due care, by an
act or omission of a person which lacks 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.  It describes gross negligence as an extreme departure from due
care resulting from an act or omission of a person accountable or
responsible for Government property which falls far short of that degree of
care for the property that a reasonably prudent person would have taken
under similar circumstances.  It is accompanied by a reckless, deliberate,
or wanton disregard for the foreseeable loss or damage to the property.

      f.  Paragraph 13-28 b(4) states that whether a person's acts or
omissions constitute negligence depends on the circumstances of each case.
Negligence under some circumstances may not reflect negligence under other
circumstances.  Therefore, fully consider the following factors, as a
minimum, when determining the reasonableness of a person's conduct:
      (a) The person's age, experience, physical condition, and special
      qualifications.
      (b) The type of responsibility the person had toward the property.
      (c) The type and nature of the property.
      (d) The nature, complexity, level of danger, or urgency of the
      activity ongoing at the time of the loss, damage, or destruction of
      the property.
      (e) The adequacy of supervisory measures or guidance for property
      control.
      (f) The feasibility of maintaining close supervision over the property
      given the nature and complexity of the organization or activity
      supervised.
      (g) The extent supervision could influence the situation considering
      pressing duties or lack of qualified assistants.

   g.  Paragraph 13-28 b(5) states willful misconduct is any intentional
wrongful or unlawful act or omission relating to Government property.

   h.  Paragraph 13-28c states that before holding a person financially
liable for a loss to the Government, the facts must clearly show that the
person's conduct was the "proximate" cause of the loss, damage, or
destruction. That is, the person's acts or omissions were the cause that,
in a natural and continuous sequence, unbroken by a new cause, produced the
loss, damage, or destruction, and without which the loss, damage, or
destruction would not have occurred.

   i.  Paragraph 14-30c allows the approving authority to relieve a driver
of an GOV involved in a motor vehicle accident of financial responsibility
where the damage is caused by simple negligence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's submission, particularly the IG complaint, contained
information about issues other than just the financial responsibility
question.  Since she only asked the Board for relief on that issue, only
the financial responsibility question should be addressed.

2.  The contention that she was fatigued does not mitigate her failure to
take steps to avoid having an accident.  If she was fatigued she should
have taken additional precautions to ensure that she was operating the
vehicle in a manner to accommodate her potentially slower reaction time.

3.  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.  There is no
indication of misconduct or deliberate actions that would result in a
higher than normal risk for an accident.  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 approving authority or this Board.

4.  The applicant believes that operation of the financial responsibility
policy requires her to, in effect, be an insurer of the government;
however, all it really requires of her is due diligence.

5.  The approving authority has the authority to grant relief as a matter
of equity when simple negligence is found.  However, in this case the
approving authority chose not to do so.  While the Board also has the
authority to grant relief as a matter of equity, such action is not
warranted in this case.

6.  The applicant was incorrectly assessed that total cost of repair to the
vehicle, which exceeded her monthly base pay, the maximum liability under
the regulations.  As such she should be refunded the amount of $16.62.

BOARD VOTE:

_TDH    ___LF___  __JLP___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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 directing that funds recouped in excess of her
base pay be refunded to her, $16.62.

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
finding her not negligent for the accident and liable for the remainder of
the cost for repair of the vehicle.




            _Thomas D. Howard, Jr.
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003091285                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040420                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |Report of survey                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |