RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2007
      DOCKET NUMBER:  AR20060011341


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Scott W. Faught               |     |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 he be relieved of financial
responsibility arising out of Report of Survey (ROS) Number (#) 416-XX-XXX.

2.  The applicant states, in effect, that the ROS findings and conclusions
that resulted in the financial liability finding in question were not
legally sufficient and there was absolutely no evidence, inherent or
direct, that established he was either negligent or committed willful
misconduct with respect to the loss of equipment that occurred in January
2003.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Promotion Orders; Reassignment
Orders; ROS; Sworn Statements (2); and ROS Investigating Officer (IO)
Appointment Letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a colonel on active duty in the Army.  His record
shows he was promoted from lieutenant colonel to colonel on 14 December
2002, and that he was a member of the 358th Civil Affairs Brigade at that
time.

2.  Headquarters and Headquarters Company, 358th Civil Affairs Brigade,
United States Army Reserve Command, Norristown, Pennsylvania, Orders Number
35801, directed the applicant's release from assignment to the 416th Civil
Affairs Battalion and his transfer to the 358th Civil Affairs Brigade,
effective
14 December 2002.

3.  On 11 and 12 January 2003, government equipment, valued at $3,481.25
belonging to the 416th Civil Affairs Battalion, Norristown, Pennsylvania,
was lost. An initial DA Form 4697 (Department of the Army Report of
Survey), prepared on this incident includes a recommendation from the ROS
officer that the applicant, as the battalion commander of the 416th Civil
Affairs Battalion, be held financially liable for a portion of the total
amount of the loss.

4.  In Item 26 (Findings and Recommendation) the ROS officer, a lieutenant
colonel, indicated that the loss of accountability of the equipment in
question was the result of the following factors:  mobilization of the
358th Civil Affairs Brigade, which included 13 Soldiers from the 416th
Civil Affairs Battalion; the issue of the equipment in question, while both
units were using the same drill hall; and command directives given to issue
the equipment quickly.

5.  The ROS officer indicated there was no reconciliation of equipment at
the end of the day on 11 January 2003, and the losses were not discovered
until the change of command of Headquarters and Headquarters Company, 416th
Civil Affairs Battalion in February 2003.  The ROS officer stated that
there were many supply personnel and commanders responsible for this
equipment from receipt to issue. This included the 416th battalion S-4
NCOIC, a full time supply specialist, a supply sergeant, and the HHC
Commander, a major.  The ROS officer also indicated that the HHC supply
sergeant and commander were the property book holders, and the battalion S-
4 and battalion commander (the applicant) were in command at the time and
had overall responsibility for assuring 416th Soldiers were issued the
equipment in a timely manner for mobilization, and that all of these
individuals were responsible for the breakdown of supply management.

6.  The ROS officer recommended the battalion S-4 NCOIC be held financially
liable for $624.51, the battalion commander (the applicant) be held
financially liable for $1,222.09, the HHC Commander be held financially
liable for $1,025.55, the battalion S-4 be held financially liable for
$887.81, and the supply sergeant be held financially liable for $428.01.

7.  On 13 May 2004, subsequent to an appeal by the applicant, a second ROS
investigation was completed by a ROS officer, a colonel, who was senior in
rank to the applicant.  This ROS officer found the loss of property in
question was attributed to the battalion S-4 NCOIC's failure to maintain a
proper inventory, accountability, and reporting to the chain of command of
circumstances surrounding the occurrences of 11 January 2003.  He also
stated that the actions of the applicant by ordering the battalion S-4 to
remove all equipment from the supply cages and to issue it to deploying
Soldiers without hand receipts ensured the breakdown of command supply and
discipline procedures.  The ROS officer recommended the battalion S-4 NCOIC
be held financially liable for $1,416.29 and the applicant be held
financially liable for $2,771.68.

8.  On 27 July 2004, the Appointing Authority approved the ROS and held the
battalion S-4 NCOIC financially liable in the amount of $1,416.29 and the
applicant financially liable in the amount of $2,771.68.

9.  On 12 August 2004, the applicant was notified by the Deputy Commander,
350th Civil Affairs Command, that financial liability had been assessed
against him by the United States Government in the amount of $2,771.68 for
the loss of Government property.

10.  On 25 August 2004, the applicant requested reconsideration of the ROS
findings.  He indicated that he was no longer in command of the 416th Civil
Affairs battalion on the date the equipment was lost and that the burden of
showing negligence in his case had not been met.

11.  On 8 September 2004, the Deputy Commander, 350th Civil Affairs Command
indicated he found no legal or other reason to modify in any way his
assessment for financial liability and as such, the applicant's request for
reconsideration was being forwarded to the Commander, United States Army
Civil Affairs and Psychological Operations Command, Fort Bragg, North
Carolina.

12.  On 8 December 2004, the Commander United States Army Civil Affairs and
Psychological Operations Command denied the applicant's request for
reconsideration.

13.  In connection with the processing of this case, an advisory opinion
was obtained from the Director of Supply and Management, Office of the
Deputy Chief of Staff, G-4, Department of the Army.   This official opined
that by regulation, the applicant could only be held financially liable for
losses where he was found to be negligent or committed willful misconduct
and the negligence or willful misconduct was the proximate cause of the
lost.  In other words, it must be shown that his acts or omissions were the
cause that, in a natural and continuous sequence, unbroken by a new cause,
produced the loss, and without which the loss would not have occurred.  In
this case, the breakdown of property accountability found by the ROS
officer was not linked directly to the applicant.  The ROS officer
identified the cause of loss as "too many Soldiers on the drill floor at
one time, many items could have been misplaced or incorrectly
issued...there was no reconciliation of equipment at the end of the day."
The applicant did not appear in the evidence provided to perform an act
that would cause the floor to be inundated with personnel nor not allow a
reconciliation to be performed at the end of the day; therefore, he was
never personally linked to these actions and therefore could not be held
financially responsible for the losses.  The G-4 advisory opinion contains
a recommendation that the financial liability assessed against the
applicant be canceled and that the applicant be refunded the $2,771.69
collected as a result of the ROS.

14.  On 20 February 2007, the applicant concurred with the G-4 advisory
opinion.

15.  Army Regulation 735-5 (Policies and Procedures for Property
Accountability) prescribes the basic policies and procedures in accounting
for Army property, and sets the requirement for formal property accounting
within the Army, and chapter 13 contains guidance on financial liability
investigations or property loss.
16.  Paragraph 13-29 states, in pertinent part, 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 also states, in effect, 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.  That is, the person's acts or omissions were the cause that produced
the loss and without which the loss would not have occurred.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the ROS in question did not establish
that the loss of equipment that resulted in his being held financially
liable for $2,771.69 did not prove the loss was due to his negligence or
willful misconduct was carefully considered and found to have merit.

2.  By regulation, in order to find a person financially liable for the
loss of Government equipment, there must be facts showing that the member,
through negligence or willful misconduct, violated a particular duty
involving the care of property, and that this negligence or willful
misconduct was the proximate cause for the loss, that is that the person's
acts or omissions were the cause that produced the loss and without which
the loss would not have occurred.

3.  The evidence of record in this case shows the applicant was no longer
the battalion commander of the unit that lost the equipment in question and
no longer had command responsibility for the property accountability of the
unit in question at the time the equipment was lost.  Further, as confirmed
in the G-4 advisory opinion, the ROS did not contain facts personally
linking the applicant to the actions the ROS officer identified as the
reasons for the loss of equipment, and as a result he could not be held
financially responsible for the losses.

4.  Absent any evidence showing the applicant committed an act of
negligence or willful misconduct that was the proximate cause for the loss
of equipment in question, there was an insufficient evidentiary basis for
the ROS finding of financial liability against the applicant.  Therefore,
it would be appropriate to correct his record by showing he was not held
financially liable for the $2,771.69 in question, and by reimbursing him
that amount, which has already been collected as a result of the erroneous
ROS finding.

BOARD VOTE:

___LDS_  __JCR  __  __SWF__  GRANT FULL RELIEF

________  ________  ________  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 relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing he was not financially liable for the $2,771.69, as
indicated in the ROS in question

1.  That the Defense Finance and Accounting Service reimburse him the
$2,771.69 collected as a result of the erroneous Report of Survey finding
in question.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011341                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/05                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |128.1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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