RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 November 2005
      DOCKET NUMBER:  AR20050006019


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      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 financial liability imposed by a Report of
Survey (ROS), F03-72 ,dated 22 June 2003, be reversed.

2.  The applicant states that there is no evidence to support the finding.
Several errors occurred during the investigation and the proper legal
process was not followed.

3.  The applicant provides his own four page summary of the case and copies
of the several memoranda and the report of survey.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a captain, was the commander of the 157th Quartermaster
Company deployed to Iraq.  He reported, on 22 June 2003, that a change of
command inventory had been unable to account for a satellite navigation
set.

2.  The battalion commander directed that an investigation in accordance
with AR 15-6 was appropriate and appointed First Lieutenant (1LT) M____ to
be the survey officer.

3.  The survey officer obtained unsworn statements from SGT S____, and SGT
V____, sworn statements from Staff Sergeant (SSG) C____, SGT B____ and 1LT
F____ and noted that the applicant and SGM A____ [the company first
sergeant at the time of the incident] were no longer available since they
had been transferred.  The survey officer concluded that SGT S____ and MSG
A____ were both jointly responsible and liable for the loss and submitted
the report on 19 July 2003.

4.  The battalion commander concurred with the survey officer's findings
and recommendation.  He determined that, based upon each Soldier's base
pay, MSG A____ was responsible for 69 percent of the loss and that SGT
S____ was responsible for 31 percent.

5.  The 16th Corps Support Group's judge advocate reviewed the case and
recommended that the applicant also be held liable for the loss.

6.  The Commander, 16th Corps Support Group notified the applicant, in a
25 September 2003 memorandum, that he was being held liable for $415.31
towards the loss.

7.  The applicant requested reconsideration of the case.  He contended that
there was no evidence that he had, by either omission or commission, done
anything wrong.  He argued that the judge advocate had abused his position
by substituting his own judgment for the survey officer.  Finally, he
pointed out that, contrary to regulation, the survey officer was junior to
him in rank and that he had not been afforded the two prescribed
opportunities to rebut the findings and determinations.

8.  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 2-6c states that, at the user level, all on-hand property
carried on property book records and or hand-receipted records will be
inventoried annually or upon change of principal hand receipt holder,
whichever occurs first.

9.  Paragraph 13-5 of the regulation states that ROSs will be initiated and
processed within a specific number of days.  For the Active Army, figure 13-
1 states ROSs will be initiated (starts with the discovery of the loss) and
completed within 15 days.  The ROS investigation and recommendation process
(starts after the document number is assigned by the accountable officer)
will be completed within 40 days.  Time used to notify the respondent of
the ROS officer's recommendation to assess financial liability is not
counted against these time constraints.  The ROS adjudication process
(starts upon receipt from the initiator or the ROS officer) will be
completed within 20 days.  The individual being charged will be notified of
the decision to assess financial liability within 30 days.

10.  Army Regulation 735-5, paragraph 13-26 requires that survey officers
be senior to any individual subject to potential liability.  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 reasonable 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.

11.  Army Regulation 735-5, paragraph 13-36 states that, upon receiving an
ROS on which the approving authority believes financial liability is
appropriate, the approving authority will obtain a legal opinion as to its
legal sufficiency prior to determining whether to assess financial
liability.  The opinion will be attached to the ROS prior to the approving
authority's review and decision.  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.

12.  During the processing of this case an advisory opinion was obtained
from the Logistics Transportation Agency (TSA).  The Chief, Sustainment
Division noted that TSA's function, as the proponent of Army Regulation 735-
5, was to interpret the regulation.  She noted that the regulation required
that a survey officer be senior to a potentially liable individual and
recommended that the applicant be relieved of any liability and that the
ROS expunged from his record.

13.  The advisory opinion was referred to the applicant for comment or
rebuttal and he concurred.

DISCUSSION AND CONCLUSIONS:

1.  The ROS was not properly conducted.  The survey officer was not senior
to the applicant.  The applicant should be relieved of any liability and
the ROS expunged from his records.  Any amount previously paid in
satisfaction of this invalid debt should be refunded.

2.  The foregoing is in consonance with the advisory opinion from the
Logistics Transformation Agency.

3.  Additionally, it should be noted, that  there is no available evidence
to show that the applicant was afforded his procedural rights to rebut the
findings, recommendations or determination.

BOARD VOTE:

__CAK__  __JEA___  __TEO__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

That all of the Department of the Army records related to this case be
corrected by:

      a.  showing that the applicant was relieved of financial liability
assessed by report of survey F03-72, dated 22 June 2003 in the amount of
$415.31;


      b.  reimbursing any amount previously paid against this invalid debt;


      c expunging the subject report of survey and any associated documents
from his records and;


      d.  upon accomplishment of the above corrections, returning any
residue and this Record of Proceedings to the ABCMR for permanent filing.









                                  _     James E. Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006019                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051101                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |116.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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