RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060012851 


	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. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Gerald J. Purcell

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 relief from debt to the Government of the United States.

2.  The applicant states, in effect, that he was medically evacuated from Iraq and his commander failed to properly collect, inventory, safeguard and dispose of his personal and military property, as required by Army Regulation 638-2.  He further states that on 18 August 2004, while still a patient at Walter Reed Army Medical Center (WRAMC), he contacted the noncommissioned officer in charge (NCOIC) of the Clothing Issue Facility (CIF) and explained that he had been medically evacuated and that the property in question was locked in two duffle bags and secured at the company headquarters in Iraq.  

3.  The applicant provides copies of the Report of Survey with enclosures, certified mail receipts, notification of Indebtedness to the Government of the United States, leave and earnings statement, medical evacuation documentation, attachment orders, retention on active duty orders, Army Regulations 638-2 and 735-5, and Army Pamphlet 600-8. 

CONSIDERATION OF EVIDENCE:

1.  Aeromedical Evacuation Patient Record (AF Form 3899) dated 5 June 2003, indicates that the applicant, a mobilized Soldier assigned to the 212th Transportation Company, Indiana Army National Guard (ARNG), was hospitalized on 7 May 2003 at the 379th Mobile Army Surgical Facility, Camp Wolf, Kuwait.  He was medically evacuated from Kuwait on 7 June 2003 to Ramstein Air Force Base, Germany.  He was subsequently assigned and transported to WRAMC for treatment.

2.  Orders Number 055-017, Department of the Army, Camp Atterbury, Edinburgh, Indiana, dated 24 February 2004, attached the applicant to WRAMC for the purpose of medical treatment.

3.  Orders A-06-405448, United States Army Human Resources Command, Alexandria, Virginia, dated 9 June 2004, retained the applicant on active duty for an additional 179 days to 4 December 2004, for the purpose of receiving medical treatment at WRAMC.  



4.  On 2 August 2004, the NCOIC of the CIF, Camp Atterbury Maneuver Training Center, Indiana ARNG, wrote a memorandum to the applicant advising him that he was indebted to the Government of the United States in the amount of $477.42, for failure to turn-in federally owned equipment.   

5.  Orders A-06-405448A01, United States Army Human Resources Command, Alexandria, Virginia, dated 15 December 2004, extended his active duty for a total of 358 days to 1 June 2005, for the purpose receiving medical treatment.  

6.  On 16 May 2005, the Adjutant General, State of Indiana Military Department, wrote a memorandum to the applicant notifying him of the recommendation to hold him financially liable to the Government of the United States in the amount of $588.37 for failure to turn-in government property.   The attached list indicates the applicant owed $477.42 plus an additional $110.95 for unit shirt, trousers, and field jacket.

7.  Orders A-06-405448A03, United States Army Human Resources Command, Alexandria, Virginia, dated 30 November 2005, further extended his active duty for a total of 716 days to 25 May 2006, for the purpose of receiving medical treatment.  

8.  On 18 January 2006, the Physical Evaluation Board concluded that the applicant's medical condition prevented satisfactory performance of duty in his grade and specialty.  This condition had not stabilized to the point that a permanent degree of severity could be determined.  Therefore, he was placed on the Temporary Disability Retired List. 

9.  On 20 January 2006, the applicant was retired due to medical disability.  His Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he attained the rank of captain, pay grade O3, and had completed 2 years, 
11 months and 11 days of creditable active duty and had completed 5 years, 
9 months and 2 days of creditable inactive service.

10.  On 1 February 2006, the applicant's Leave and Earnings Statement indicates that $477.42 was deducted from his earnings for the payment of a debt.

11.  In the processing of this case, an advisory opinion was obtained from the Director of Supply and Maintenance, Office of the Deputy Chief of Staff, G-4, Department of the Army, Washington, DC 20310-0500, wherein, he opined that  Army Regulation 735-5 (Policies and Procedures for Property Accountability) required that pecuniary liability be linked to proximate cause.  The applicant has sufficiently proved that he left his personal effects and equipment with his unit.  Therefore, the proximate cause of loss is due to lack of supervision.  Army Regulation 638-2 (Army Casualty Operations) states that "recovery, safeguarding, and proper disposition of personal effects and baggage are command responsibilities".  The applicant's command had the responsibility of properly securing his personal effects and military equipment at the time that he was medically evacuated.  It further opined that the applicant should not have been held liable for the items listed on the Report of Survey and should be reimbursed the $477.42 taken from his military pay.

12.  A copy of this advisory opinion was provided to the applicant; however, no response was received as of the date of the Board.

13.  Department of the Army Pamphlet 600-8 (Management and Administrative Procedures) provides, in pertinent part, that if the Soldier is hospitalized at a medical treatment facility at his duty station, his clothing/property will be secured in the unit facilities pending return of the Soldier. 

14.  Army Regulation 735-5 (Policies and Procedures for Property Accountibility) provides, in pertinent part, 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. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was hospitalized on 7 May 2003, while still in the theater of operations.  Subsequently, he was medically evacuated from the theater and remained under medical treatment until his disability retirement on 20 January 2006.  

2.  Regulatory guidance clearly provides that it was a command responsibility to collect, inventory, safeguard, and properly dispose of all property that was in the applicant's possession at the time of his hospitalization.   

3.  Due to the applicant's medical condition that required his hospitalization and continued medical treatment for almost 3 years, it is not reasonable to believe that any action or inaction on his part was the proximate cause of the loss.

4.  In view of the above, the applicant's request for relief of this debt should be granted.  Furthermore, he should be reimbursed all monies taken in payment for this debt.

BOARD VOTE:

__LMD__  __YM ___  __GJP __  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 held pecuniary liable on the subject report of survey, thus voiding this debt to the Government of the United States and reimbursing him in the amount of $477.42.




       Yolanda Maldonado___
          CHAIRPERSON




INDEX

CASE ID
AR20060012851
SUFFIX

RECON
 
DATE BOARDED
20070515 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
116.0100.0000
2.

3.

4.

5.

6.