RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060017026 


	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

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. James Vick

Chairperson

Mr. Patrick McGann

Member

Mr. Gerald 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 that he not be held liable for damages to military property resulting from a vehicle accident on 4 April 2006 in Kuwait. 

2.  The applicant states, in effect, that the Report of Survey (ROS) was not initiated in a timely manner nor was it conducted properly when it finally was initiated.  He states that an ROS was initiated involving a vehicle accident that occurred on 4 April 2006.  The survey officer recommended no liability for damage to the 2002 Jeep Grand Cherokee resulting from the accident; however, the appointing authority and the approving authority disapproved the survey officer’s recommendation.  The applicant submitted a rebuttal to the findings and the approving authority confirmed his recommendation of liability for the damage.  
3.  The applicant states that the governing regulation states an ROS will be initiated no later than 15 calendar days after the date of discovering the discrepancy and that the ROS in question was not initiated until 26 days after the date the loss was discovered.  He also states that the command did not conform to the standards for processing the ROS in that the ROS should have been returned to the survey officer to further substantiate his finding of no liability.      

4.  The applicant provides a copy of the ROS, findings, recommendation, and rebuttal.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of Major.

2.  Item 1 (Date Initiated) on a DD Form 200 (Financial Liability Investigation of Property Loss), dated 29 May 2006, shows it was initiated on 30 April 2006.  Item 3 (Date Loss Discovered) on this form shows it was discovered on 4 April 2006. The financial liability officer found that the damage occurred to the vehicle on 
4 April 2006 as the applicant was leaving the U.S. Embassy in Kuwait.  As the applicant was negotiating the Jersey barriers in the exit lane he received a phone call.  He looked away from the road to answer his cell phone.  When he looked back up he saw he had one more barrier to negotiate and when he swerved to miss a Jersey barrier he hit the curb.  The wheel jumped up on the curb and back onto the road.  The applicant was able to continue driving the car.  There was damage to the wheel and suspension.  There were no injuries.  The financial liability officer recommended that the applicant was not negligent in the use of the vehicle, that the damage to the vehicle was an accident that occurred while he was performing his mission, and that all parties be relieved of responsibility.  

3.  On 3 June 2006, the appointing authority disapproved the recommendation and commented that he believed a single vehicle accident indicates fault.  

4.  On 11 June 2006, the approving authority disapproved the recommendation and commented that he considered the event on the edge of gross negligence and that the amount payable should be $500.00.   

5.  On 11 June 2006, the Staff Judge Advocate concurred with the appointing authority that negligence was the proximate cause of the damage to the vehicle.  As a result, he determined that it was legally sufficient for some assessment of liability, including the proposed amount of $500.00.  He stated that negligence is the failure to act as a reasonable prudent person would have acted under similar circumstances (per Department of Defense Financial Management Regulation).  Kuwait is a dangerous place to drive, and they are concerned with first and foremost their members’ safety, along with the upkeep of their vehicle fleet.  They do need to discourage negligent driving and hold financially liable those personnel abusing or grossly negligent in the operation of their vehicles (defined in the regulations as an act characterized by a reckless, deliberate, or wanton disregard of foreseeable consequences – however, nothing in the applicable regulations prohibit assessment of liability in the case of simple negligence).  He also stated that considering the amount of damage done to the suspension and wheel, one can conclude that the vehicle was going too fast for the conditions.  The applicant also admits to diverting his attention to an incoming cell phone call. Contrary to the Financial Liability Officer’s opinion, this is by definition at least simple negligence.

6.  On 12 June 2006, the applicant was notified that he was recommended for charges of financial liability to the U.S. Government in the amount of $500.00 for the loss of Government property.  He was also advised of his rights relative to the matter.

7.  The applicant submitted a rebuttal statement, dated August 2006, in response to the comments and allegations made from the 11 June 2006 letter from the Staff Judge Advocate.  He provided numerous exhibits (diagram of the accident area; security information; photos of the accident area, rear entry, and safety/warning markings within the Embassy grounds; a driving record for the applicant and Kuwait National traffic statistics; and a sworn statement from a mechanic).  

8.  In summary, the applicant stated that he was not negligent in the use of the vehicle he was operating at the time of the incident or at any other time he operated vehicles for the 27 months while assigned to the Office of Military Cooperation – Kuwait.  He stated that the diagram of the accident scene and the photos show the inconstancies of the Jersey barriers and haphazardness of their placement and the lack of safety markings and reflective stickers on the extreme corners of the barriers, lighting, and speed limit signs.  He stated that the accident took place during dusk at reduced daylight hours and that speed was never a factor.  He goes on to state that over the past 27 months in Kuwait he had a flawless no fault accident record, that he has traveled over 40,313 miles, that he operated three different vehicles assigned to him, and that he has demonstrated the ability to travel and traverse the highways, byways, and rough terrain roads without an accident.  He stated that the exit road inconstancies (lack of barrier markings, reducing distances, and inadequate lighting) had a significant contribution to the accident.  He argued that from the Staff Judge Advocate’s comment “Considering the amount of damage done to the suspension and wheel, one can conclude that the vehicle was going too fast for the conditions” and without any further evidence introduced in the survey, one can not conclude without a shadow of doubt that speed was a factor in this accident.  He stated that other factors (not speed) contributed to the damage sustained to the vehicle (i.e. position of the tire, height of the curb, and the momentum of the four thousand pound vehicle at impact) and that a statement from a qualified mechanic clarified that if speed was a factor with the other aforementioned factors then the vehicle would have been un-drivable at the scene of the accident.  He further stated that he was well in his right to engage the unit approved hands-free phone device and that the comment “Contrary to the FLO’s opinion, this is by definition as least simple negligence” is opinionated.                   
9.  On 28 August 2006, the approval authority reviewed the applicant’s rebuttal statement and package and found that negligence on the applicant’s part was still the proximate cause of the damage to the Government vehicle.  Accordingly, he determined to hold the applicant financially liable for the damage in the amount of $500.00.

10.  On 29 August 2006, the applicant was notified that financial liability had been assessed against him by the U.S. Government in the amount of $500.00 for the loss of Government property.  He was also advised of his rights relative to the matter.

11.  In the processing of this case, a staff advisory opinion was obtained from the Director, Supply and Maintenance, Office of the Deputy Chief of Staff.  The opinion recommends that no changes be made to the current liability charge.  The opinion states that the approving and appointing authority’s recommendation to disapprove the Financial Liability Officer’s recommendation appears to have been done within current policies and procedures as stated by Army Regulation 735-5, Policies and Procedures of Property Accountability (paragraph 13-37c).  The applicant’s admission of cell phone usage while driving during diminished driving conditions (early in the evening under reduced light while negotiating numerous safety barriers) can be considered an act of negligence as stated by the legal review.  Financial liability can be assessed against any person who fails, through negligence or misconduct, to perform duties of responsibilities and where such failure is the proximate cause of damage to the U.S. Government. 

12.  On 20 February 2007, the advisory opinion was furnished to the applicant for comment.  On 28 February 2007, the applicant responded.  In summary, he stated that the approving and appointing authority failed to meet the requirements in conducting the survey, in continuing the investigation when facts were in dispute; and failed to give adequate reason for their dismissal of the survey officer’s recommendation that no liability existed.  Soldiers ought not to be arbitrarily held liable for losses when procedure is not followed and the investigative process is thwarted.  He states that this incident took place in what would be considered a dangerous environment given the current hostile political climate that exists in the Middle East and that communication with units and individuals in the field is of the highest importance in maintaining security and force protection measures.  He states that the use of hands-free devices were approved by the command to effectuate the purpose of maintaining constant communication in order to give commanders in the field instant contact with their forces to effectively carry out the mission and to maintain security and force protection measures.  He states that in an environment where the first priority is mission accomplishment, given the hostile situation, the use of a hands-free device, and the plethora of contributing factors, this accident does not rise to the level of negligence.     

13.  Paragraph 13-6 of Army Regulation 735-5 (Policies and Procedures for Property Accountability) provides for the time constraints for processing financial liability investigations of property loss.  It states, in pertinent part, that the total processing time (difference in days between the date of discovering the discrepancy and the approval date) for the Active Army under normal circumstances will not exceed 75 calendar days.  It also states that when delayed beyond the processing times, the person responsible for the delay will prepare a written statement explaining the reason for the delay and attach it to the financial liability investigation of property loss as an exhibit.

14.  Paragraph 13-8 of Army Regulation 735-5  states, in pertinent part, that the Active Army will initiate and present financial liability investigations of property loss to the appointing authority or approving authority as appropriate not later than 15 calendar days after the date of discovering the discrepancy.  

15.  Paragraph 13-28 of Army Regulation 735-5 states, in pertinent part, that a financial liability officer has up to 30 calendar days from the date of receipt to complete the financial liability investigation of property loss.

16.  Paragraph 13-29c of Army Regulation 735-5 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 (LDD).  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 LDD, and without which the LDD would not have occurred. 

17.  Paragraph 13-34c of Army Regulation 735-5 states that the financial liability officer will ensure the respondent completes blocks 16a through 16h on the DD Form 200.  A copy of the memorandum explaining the individual’s rights will be attached to the financial liability investigation of property loss as an exhibit.  If more than one individual is recommended for assessment of financial liability, the financial liability officer will prepare continuation sheet(s) for blocks 16a through 16h. 

18.  Paragraph 13-35 of Army Regulation 735-5 states, in pertinent part, that individuals have the right to submit a rebuttal statement, or other added evidence, and to have that statement or evidence considered and attached to the financial liability investigation of property loss for consideration by higher authority.  Individuals against whom a charge of financial liability is recommended may obtain legal advice from the servicing legal officer, (Office of the Staff Judge Advocate, Post Judge Advocate, Command Counsel, for Legal Counsel).

19.  Paragraph 13-37c of Army Regulation 735-5 states that if the appointing authority nonconcurs with the financial liability officer’s recommendation he or she will process the DD Form 200 as follows:  (1) check “Disapprove” in block 13a; (2) enter a statement in block 13b showing the rationale upon which his or her decision is based; (3) if the financial liability officer does not recommend financial liability and the appointing authority recommends financial liability, the appointing authority will ensure the procedures outlined in paragraphs 13-34c and 13-35 are accomplished; (4) complete blocks 13d through 13h; and (5) forward the DD Form 200 with exhibits to the approving authority.

20.  Paragraph 13-40 of Army Regulation 735-5 states, in pertinent part, that when the approving authority determines the financial liability investigation of property loss or Army Regulation 15-6 investigation is incomplete, or finds pertinent instructions have not been complied with, he or she will return the financial liability investigation or property loss to the financial liability officer or Army Regulation 15-6 investigating officer for further investigation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant’s contention that the ROS was not initiated in a timely manner.  It was initiated 26 days after the date of discovery and not 15 calendar days as required by the governing regulation.  It appears this was the only timeline that was not met, and the applicant has failed to show how such failure has been to his detriment.  
   
2.  The applicant’s contention that the ROS was not conducted properly when it finally was initiated and that the ROS should have been returned to the survey officer to further substantiate his finding of no liability was noted.  However, there is no evidence of record which shows the approval authority found the financial liability investigation of property loss incomplete or that pertinent instructions were not complied with.  Therefore, there was no reason to return it to the survey officer.

3.  In his rebuttal to the recommendation of the ROS’s approving authority the applicant acknowledged there were safety hazards to negotiating the Jersey barriers at the U.S. Embassy.  Yet, he continued to drive when he looked away from the road to answer his cell phone.  He could have let the phone ring until he was beyond the barriers or he could have stopped for a second to answer the phone while negotiating security barriers.

4.  Whether or not speed was a factor in the accident, the proximate cause of the accident was the applicant’s negligence in taking his eyes off the road in a moving vehicle to answer the cell phone while negotiating security barriers.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JV______  __PM____  __GP___  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


__James Vick__________
          CHAIRPERSON




INDEX

CASE ID
AR20060017026
SUFFIX

RECON

DATE BOARDED
20070424
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
116.0100
2.

3.

4.

5.

6.