RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20050017691


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, in effect, that all monies that were improperly
garnished from his wages as a result of an improper report of survey be
refunded to him.

2.  The applicant states, in effect, that he was found liable for the loss
of Government property in the amount of $1,989.52.  He has hand receipts
for all of the items listed on the report of survey (Report of Survey
Number 95-02), except for one laptop computer and its accompanying battery.
 A hand receipt naming the appropriate accountable property holder exists
for all other items.

3.  The applicant submitted those items that are listed on the Report of
Survey Index, with exception of rebuttal statements that were previously
listed at Tab D and E, to the report of survey.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the US Army Reserve on
19 December 1983.  On 4 January 1984, he enlisted in the Regular Army and
continued to serve through a series of reenlistments.  He attained the rank
and pay grade, Sergeant First Class, E-7, on 1 December 1998.  He was
honorably separated for the purpose of retirement on 31 January 2006.  On
the date of his transfer to the retired list, the applicant had completed
22 years and 27 days active duty with no time lost.  The applicant held the
military occupational specialty 63X Vehicle Maintenance Supervisor, on the
date of his separation and retirement.

2.  The evidence shows that a change of command inventory was conducted
on 12 November 2002.  After completing the inventory, it was determined
that certain items which were hand receipted to the applicant, were not
accounted for. Some of these items (a laptop computer, a battery charger,
and a printer) were hand receipted to him.  Other items were hand-receipted
to him and further sub-hand receipted to Soldiers subordinate to him in his
platoon.

3.  A DA Form 4697, Department of the Army - Report of Survey, which was
prepared on 19 November 2002, shows a report of survey was conducted into
the loss of equipment hand receipted to the applicant.  The total cost of
those items determined to have been hand receipted to him, which were not
accounted for, were determined to have a value of $4,507.00.  The grand
total of all losses,
those charged to him personally and those items hand receipted to members
of his platoon, had a total value of $10,680.41.  The items that were
determined to have been hand receipted to members of the applicant's
platoon and which were not accounted for were originally written as
statements of charges; however, the Soldiers refused to sign the statements
of charges claiming they never received the equipment.

4.  In the DA Form 4697, and specifically in Item 11 (Date and
Circumstances), a number of inconsistencies were found, and included by the
surveying officer in his report.  Among the inconsistencies were a lack of
agreement between items and the System Component List; a report of loss of
paperwork that had been generated on turn-in of equipment, a failure to
have changes posted to the property book; and equipment found to be on
hand, but for which there was no hand receipt and in one instance, a piece
of equipment that was accounted for two times.

5.  On 22 November 2002, the applicant's battalion commander, the
appointing authority, reviewed the evidence pertaining to the lost items
and determined that the circumstance surrounding the loss warranted further
investigation.

6.  On 12 February 2003, the surveying officer completed Item 27
(Recommended Pecuniary Charge), of the DA Form 4697.  He showed the
actual loss was $6,691.39, the amount charged was $3,326.10, and the
loss to the Government was $3,365.29.

7.  On 9 May 2002 (sic 2003); the applicant submitted a memorandum,
Subject:  Request for Reconsideration on Report of Survey Number 95-02, to
the appointing authority.  In this memorandum, the applicant requested that
a new investigating officer be appointed or that he be relieved of
financial responsibility concerning Report of Survey 95-02.  He stated that
several legal errors in the report of survey made the assessment of
financial liability against him improper.  These legal errors included:
several pieces of equipment listed on the report of survey were currently
on hand; items he was being held accountable for were never signed for by
him; he was being held accountable for items that were inventoried using a
shipping list and the shipping list did not include missing items (since
there were missing items, this meant the item were never present to begin
with); he was held accountable for items that were signed for by Soldiers
subordinate to him before the change of command inventory; some of the
items he was being held accountable for were accounted for on a shortage
annex and in change documents; and receipts for items that were hand
receipted to Soldiers
subordinate to him prior to the change of command were never reviewed by
the surveying officer because of the deployment of the surveying officer.
The applicant concluded that, "Given all the discrepancies noted above and
since the Surveying Officer acknowledges that some of the property is
currently on-hand and signed for it would be inappropriate to find me
financially liable at this time.  Further investigation should be ordered
to detail what items are currently on hand prior to any finding of
financial liability."

8.  In his memorandum to the appointing authority, the applicant stated
that despite the errors he had described, if he continued to be held liable
for the loss, he respectfully requested remission or cancellation of his
indebtedness in accordance with Army Regulation (AR) 735-5, Paragraph 13-
44.  The loss of one-twelfth of his annual salary, he stated, would impose
a severe hardship on his family.  In the event his request for remission or
cancellation of his indebtedness was denied, then, he respectfully
requested an extension of the collection period in accordance with AR 735-
5, Paragraph 13-45.

9.  On 29 May 2003, the applicant sought legal counsel.  In an e-Mail
message from the Deputy Staff Judge Advocate, CFLCC (Coalition Forces
Land Component Command), Camp Doha, Kuwait, to the applicant's company
commander, she stated, "I counseled with [the applicant] today regarding
the above survey.  It is difficult for me to understand how this NCO
(noncommissioned officer) is being held liable for a 1996 laptop in the
sum of $3,263.68 when the laptop, if found, is worth nothing more than
salvage value or as a boat anchor.  Please explain.  There are so many
discrepancies in this ROS (Report of Survey) that, in its present form,
it is legally deficient to such an extent that it is impossible to hold
the applicant financially liable for this loss."

10.  On 14 August 2003, the applicant was apprised of the surveying
officer's recommendations.  The applicant stated he desired to make a
statement which was attached to the DA Form 4697.

11.  On 26 August 2003 the applicant submitted a rebuttal to the report of
survey. In his rebuttal he asked that a new investigating officer be
appointed or that he be relieved of financial responsibility because, he
stated, there had been no loss to the Government.  The contents of this
rebuttal were essentially the same as the contents of the memorandum he
submitted to the appointing authority on 9 May 2002 (sic 2003).
12.  On 29 December 2003, in an e-Mail message, Subject:  Special Report
of Survey, 623rd Maintenance Battalion Change of Command, the special
surveying officer notified the Commander, 24th Corps Support Group, and
provided her a listing of items that were found and were on hand.  The
special surveying officer recommended that the accountability for items
listed in an added spreadsheet be reestablished and [the applicant] not be
held financially liable for those items but that he be held financially
liable in the amount of $1,154.17.  Depreciation, she stated, had been
included in this total.

13.  On 13 January 2004, the Report of Survey Officer prepared a Memorandum
for Record.  In this memorandum he stated accountability for items on an
attached spreadsheet had been established.  The applicant was no longer
liable for those items accounted for and listed on the spreadsheet.  Total
liability was reduced from $2,869.22 to $1,989.52.

14.  On 16 January 2004 the applicant was advised he was being recommended
for assessment of financial liability to the US Government in the amount of
$1,989.52 for the loss of Government property.  The applicant was provided
with his rights and was notified the report of survey would be held until
20 February 2003 (sic 2004) before forwarding the report of survey to the
approval authority.  The applicant was notified of other actions that he
was responsible for accomplishing.

15.  The applicant's DFAS 702, Defense Finance and Accounting Service
(DFAS) Military Leave and Earnings Statement for the period 1 through 31
March 2004 shows that the total debt assessed him in the amount of
$1,989.52 pursuant to the report of survey was collected in full.  The
balance due the US Government was $0.00.

16.  In a memorandum, Subject:  Financial Liability, Report of Survey No,
95-02, dated 9 November 2005, addressed to the Board, the applicant
states the surveying officer's recommendation against him in the amount
shown above was erroneous because he failed to conduct a proper
inspection after everything was laid out for him to review.

17.  After the items were laid out, the applicant alleges he was ordered to
put the items in question away because they were deploying.  Had the
surveying officer just inspected the layout, he would have known for a fact
that everything was accounted for.  In addition, he states, in effect, that
all the section sergeants were present and they could have answered all his
questions pertinent to the
accountability for the equipment; however, he failed to inspect the layout
and, in the eyes of the surveying officer, the equipment was not properly
accounted for.

18.  The applicant alleges that the surveying officer was prepared to
recommend to the battalion commander to write the items off the books for
that reason.  In his memorandum to the Board, the applicant reiterates that
all the items he was ultimately held financially responsible for, with
exception of the one laptop computer and its accompanying battery, were
present and subsequently properly hand receipted to various individuals.

19.  Because the unit was deploying, the surveying officer requested that
the back page of the hand receipts signed by each accountable individual be
provided to him.  The applicant states, he did this and from that point on,
he was no longer in control of his equipment.  It was packed in containers
for shipment.

20.  The applicant was reassigned from the unit and he remained at Fort
Stewart assigned to another unit.  He concludes his memorandum to the
Board by repeating that all the items, with exception of the laptop
computer and its accompanying battery, were properly hand-receipted to
other individuals, thereby absolving him of liability for the equipment.
The applicant notes that before he was charged for $1,989.52, the survey
started out at $10,680.41.  If the surveying officer had done the
inspection, he would have seen with his own eyes that everything was
there and accounted for, but for a lap top and battery charger that were
no longer in the system.

21.  In the processing of this case, an advisory opinion was requested on
28 April 2006, of the Office of The Deputy Chief of Staff, G-4, Director of
Supply and Maintenance.

22.  On 30 May 2006, the Director of Supply and Maintenance replied to this
request.  In his reply, he recommended the liability of $1,989.52 assessed
against the applicant be reduced by $36.84.  The amount of this reduction
and the recommendation was made because the hand receipts that were signed
by subordinates were signed following the initiation of the survey.  Those,
the Director of Supply and Maintenance, stated, should have relieved the
applicant of all responsibility for the items listed on the advisory
opinion itself.

23.  On 22 June 2006, the applicant submitted a rebuttal to the advisory
opinion.  In his rebuttal, he addressed issues related to an enlisted
evaluation report he received and the report of survey which was
conducted and in which he was
held liable for $1,952.68 ($1989.52 less the $36.84 the Director of
Supply and Maintenance recommended he be absolved of responsibility for).
 In his rebuttal, the applicant made a statement that as a retired
Sergeant First Class in the United States Army he had done a number of
reports of survey and he went on the describe procedures that were
normally followed before liability was established.

24.  AR 735-5 provides basic policies and procedures for accounting for
U.S. Army property and accounting for lost, damaged, or destroyed U.S. Army
property.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that a change of command inventory was conducted
on 12 November 2002.  After completing the inventory, it was determined
that certain items which were hand receipted to the applicant, were not
accounted for.

2.  The total cost of those items determined to have been hand receipted to
him, which were not accounted for, were determined to have a value of
$4,507.00.  Other items were hand receipted to him and further hand
receipted to members of his platoon.  The grand total of all losses, those
charged to him personally and those items hand receipted to members of his
platoon, had a total value of $10,680.41.

3.  On 22 November 2002, the applicant's battalion commander, the
appointing authority, reviewed the evidence pertaining to the lost items
and determined that the circumstance surrounding the loss warranted further
investigation.

4.  Further investigation was conducted and on 12 February 2003, the
surveying officer reported that based on his investigation, the actual
losses were calculated to be $6,691.39.  The amount charged was
$3,326.10, and the loss to the Government was $3,365.29.

5.  It appears a special report of survey of the 623rd Maintenance
Battalion Change of Command inventory was conducted even though documents
related to this inventory are not available.  The special surveying officer
notified the Commander, 24th Corps Support Group, and provided her a
listing of items that were found and were on hand.  The special surveying
officer recommended that the accountability for items listed in an added
spreadsheet be reestablished and [the applicant] not be held financially
liable for those items but that he be held financially liable in the amount
of $1,154.17.  Depreciation, she stated, had been included in this total.

6.  It appears the findings of the report of survey officer and the special
report of survey officer was not reconciled before the debt was established
against the applicant's DFAS pay account.  On 13 January 2004, the Report
of Survey Officer prepared a Memorandum for Record.  In this memorandum he
stated accountability for some items had been established.  The applicant
was no longer liable for some items and his liability was reduced from
$2,869.22 to $1,989.52 for the loss of Government property.  There was no
specific mention of depreciation in the report of surveying officer's last
made report; therefore, it appears that the special report of the survey
officer's is the most fair considering the age of the equipment that was
not accounted for in the report of survey.

7.  The amount of $1,989.52 which was assessed by the report of survey
officer was collected in full.  The balance due the US Government was
$0.00.

8.  In the processing of this case, an advisory opinion was requested and
the Director of Supply and Maintenance recommended the applicant be held
liable for the $1,989.52 minus $36.84 or $1,958.68.

9.  The applicant, a noncommissioned officer who described himself as a
retired Sergeant First Class who had done a number of reports of survey
himself, was not unfamiliar with property accountability procedures, and
he knew or should have known of his responsibilities when he took
accountability for the items he hand receipted for and for those items he
sub-hand receipted to members of his platoon.  The fact there appeared to
be many inconsistencies and an apparent lack of sound property
accountability procedures at his place of duty does not absolve him of
this responsibility.  The applicant was a pivotal player in the chain of
responsibility and therefore he cannot be released from liability for
lost and missing equipment that was hand receipted to him.  Justice and
equity does however demand that he be treated fairly and that all effort
to resolve property accountability be recognized; therefore, it would be
in the interest of justice to hold him responsible for only the $1,154.17
the special report of survey officer recommended.  This figure included
depreciation in the total.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___rn___  __EM ___  __WFC__  GRANT PARTIAL 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 showing that block 37b of DA Form 4697
(Department of the Army Report of Survey) 95-02 reflects $1,154.17 and the
applicant was held liable by a report of survey for the loss of Government
property valued at $1,154.17 and DFAS refund to the applicant $835.35, the
difference from the $1989.52 already collected by the DFAS.

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
the remission or cancellation of the total amount assessed against the
applicant in Repot of Survey 95-02, dated 19 November 2002.




                                  ______William F. Crain_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050017691                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070308                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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