RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 May 2008
	DOCKET NUMBER:  AR20070008237 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 financial liability in the amount of $714.50, for loss of government property.

2.  The applicant states that a hearing decision was not conducted within 60 days as required by Army Regulation.  He states that he did not receive due process rights in accordance with Army Regulation 735-5.

3.  The applicant provides in support of his application, a letter, with enclosures, dated 17 April 2007, from the Defense Finance and Accounting Services (DFAS), notifying him of the decision made in regard to his request for a hearing; a Summary Record and Hearing Decision dated 17 April 2007; a copy of the Financial Liability Investigation of Property Loss dated 15 February 2005; a copy of the Report of Survey (ROS) dated 15 February 2005; copies of Statements of Objection; a copy of the Financial Liability Investigation Legal Review dated
29 August 2005; a memorandum notifying him of financial liability dated 7 December 2005; a copy of his acknowledgement of the financial assessment notice dated 14 December 2005; a copy of his request for reconsideration for relief of financial liability dated 1 February 2006; a copy of his request for reconsideration review by the IO dated 6 June 2006; a copy of the legal review pertaining to the denial of his request for reconsideration dated 9 August 2006; a copy of the Commanding General's denial of his request for reconsideration dated 9 August 2006; and a copy of his petition for a hearing dated 9 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The available records show that the applicant was a General Schedule 12 Federal Government supervisor, working at the United States Army Aberdeen Test Center, Aberdeen Proving Grounds, Maryland, when a Financial Liability Investigation of Property Loss was initiated on 2 February 2005.  The investigation was initiated as a result of a mission portable Motorola Saber Radio that was lost prior to December 2002.  According to the survey officer, there were three radios in use by personnel within a specific building for field operations, one of which was the radio that was reported as missing.  During the investigation, the survey officer stated that the radio (as was the case with the two radios that remained under the applicant's hand receipt) could be taken out of the battery charger in the inspection room by anyone with a need to use the radio.  



2.  The survey officer further stated that no formal sign-out procedure was in place to track who had possession of the radios at any given time; that the radio was initially found to be missing during an inventory of equipment that was to be transferred with a hand receipt to another individual; and that subsequently, within a few weeks, a radio with the apparently "correct" serial number inscribed on the case was found and the other individual, with no other information to establish identification of the radio, took possession of the radio and the hand receipt.  The survey officer noted that routinely, serial numbers are inscribed on radios since the Motorola serial number sticker and ATC bar code frequently wear off of the plastic radio case during normal use.  After gaining access to the radio identification numbers, which differ from the radio serial numbers, the other individual determined that the radio that he had received with the correct serial number inscribed on it did not have the correct identification number.  In other words, the hand inscribed serial number was wrong and the radio that he had was not the missing radio.  The radio was later returned to the proper individual.  

3.  At the end of the investigation, the survey officer found that the applicant was responsible for the loss of the radio, as he did not maintain control of the radio under his hand receipt; and that he was financially liable for the missing radio in the amount of $714.50, after factoring in 14 years of depreciation.  The survey officer recommended that a formal sign-out procedure be implemented to track radios as they are taken from the building and that radios be stored under lock and key and kept by the hand receipt holder when not in use to reduce the chance of radio loss in the future.

4.  An ROS was prepared on 15 February 2005, reiterating the information that was discovered during the Financial Liability Investigation of Property Loss.  The ROS also indicates that attached as one of the exhibits, was the applicant's concurrence.

5.  On 29 August 2005, the financial liability investigation was reviewed for legal sufficiency and the appropriate authority determined that the investigation was legally sufficient.

6.  On 7 December 2005, the applicant was notified that an approved charge of financial liability had been assessed against him by the United States Government in the amount of $714.50 for the loss of government property.  He was advised of his rights and he was informed that if he had any questions concerning his rights, he should contact his designated representative or the Developmental Test Command, Office of the Chief Counsel.  The applicant acknowledged receipt of the notification on 14 December 2005.

7.  On 1 February 2006, the applicant requested reconsideration of the ROS and he requested that he be relieved of financial liability for the loss of the radio.  He cited Army Regulation 735-5, paragraph 13-42, stating that the approving and appeal authorities will review a request for reconsideration if there is legal error.  He stated that the facts stated by the survey officer could not, as a matter of law, support a finding of negligence and an assessment of financial liability.  The applicant stated that in accordance with Army Regulation 735-5, 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; and that simple negligence is an act or omission, which lacks the degree of care for the property that a reasonably prudent person would have taken under similar circumstances.  

8.  In his request for reconsideration, the applicant stated that he took the appropriate measures that a reasonably prudent person would take in the same situation; that he should not be held financially liable for the missing radio because it was not a loss of property, it was an administrative issuance error; that the radio in question had the serial number painted on it in the same fashion as the other two radios for which he was responsible; that the findings and recommendations of the financial liability survey officer clearly substantiate his statements when he indicated that the radio was found with the "correct" serial number inscribed on its case; and that he reasonably relied on the inscription on the outside of the radio and assumed that the radio in question was the radio that was issued to him and the error was in the original issuance process.  

9.  The applicant went on to state in his request for reconsideration, that it was not general office policy in the past to use a sign-out sheet for radios because it had not been deemed feasible for the nature of the work performed until the procedures were changed in July 2005.  He stated that the past practice was to keep the radios in the supervisor's office.  He stated that before a person may be held financially liable, the facts must show that the person's conduct was the proximate cause of the damage.  He stated that 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 damage or loss and without which the damage or loss would not have occurred.  The applicant stated that there was no evidence to support a finding of negligence for the loss of the radio.  He stated that the survey officer did not investigate or obtain statements regarding the original source of the radio and he did not investigate or obtain statements regarding the 



former supervisor in accordance with Army Regulation 735-5.  He stated that the survey officer did not abide by the guidelines of Army Regulation 735-5; therefore, the investigation upon which the legal determination was made was faulty.  The applicant concluded his request for reconsideration by stating that he should be relieved of the financial liability for the loss of a 14-year old radio.

10.  A sworn statement was obtained from the former supervisor on 14 February 2006.  The former supervisor stated that he did not agree with the applicant's contention that he was ever assigned a hand receipt for the radio in question as claimed by the applicant.

11.  On 6 June 2006, the Commander, US Army Developmental Test Command was notified by the survey officer that as hand receipt holder, the applicant had the primary and direct responsibility to ensure that proper custody, safekeeping and disposition were provided for the radio and that his lack of a clear method or actions to specifically track the whereabouts of the radio breached the requisite standard of care for property accountability for a hand receipt holder.  The commander was further informed that the applicant's negligent failure to maintain adequate accountability was the proximate cause for the loss of the radio.  The commander was told that initially, a written statement was not obtained from the former supervisor and that subsequently, the survey officer obtained a statement to address statements made by the applicant in his request for reconsideration.  He stated that the former supervisor refutes that he was ever the hand receipt holder for the radio in question and that his file lacks any support for the applicant's claim that the former supervisor may be somehow responsible, either because he "may have borrowed a radio" or because he "was assigned (this) hand receipt which contained the radio."  Upon completion of the review it was found that the lack of accountability by the applicant, the hand receipt holder at the time of the loss, was the sole, proximate cause of the loss.  The survey officer adhered to his original findings of financial liability.

12.  A legal review was conducted on 9 August 2006, on the financial liability investigation and all related documentation, including the request for reconsideration submitted by the applicant.  The Chief Counsel determined that the approving authority's action and the financial liability investigation were legally sufficient and supported the finding that the applicant be held financially liable for the loss of the radio.

13.  On 9 August 2006, the survey officer was notified by the CG that the applicant's request for reconsideration for relief of financial liability was reviewed and denied.  The survey officer was informed that the decision was final and that 

no further requests for reconsideration were allowed.  The survey officer was directed to inform the applicant that his request was denied; that he had 30 days from the date of notification to submit a request for a hearing; and that he had the right to make application to this Board.

14.  The applicant submitted a Petition for Hearing on 9 August 2006, to contest the validity of the debt for the purpose of salary offset.  In a memorandum dated 22 September 2006, he stated that the records do not show, without a reasonable doubt, that he should be held financially liable for a radio that he had little or no control over.  He also stated that another individual would provide testimony in support of his position.  

15.  On 17 April 2007, the applicant was notified that an administrative hearing was conducted by the Hearing Official, Hearings Branch, Directorate of Debt and Claims Management, DFAS.  The Summary Record and Hearing Decision shows the Hearing Official stated that as hand receipt holder, the applicant has direct responsibility for the radio; and that per Army Regulation 635-5, 
paragraph 2-8c,10 June 2002 edition, direct responsibility results from assignment as an accountable officer, receipt of formal written delegation, or acceptance of the property on hand receipt from an accountable officer.  Direct responsibility is the obligation of a person to ensure Government property for which he or she has receipted, is properly used and cared for, and that proper custody and safekeeping are provided.  The Hearing Official stated that the financial liability investigation found that the applicant did not maintain control of the radio under his hand receipt; therefore, he was found to be the responsible person for the loss.  The Hearing Official determined that the financial liability assessed against the applicant is valid and collection by salary offset not to exceed 15 percent of disposable pay, is proper.

16.  Army Regulation 735-5 states that in order to assess liability, the approving authority must find:  1) the person to be held liable had a duty/responsibility to take care of the property; 2) the person failed to carry-out that duty (negligence); and 3) the person's failure led to the loss (proximate cause).  The proximate cause is defined as the cause, which in a natural and continuous sequence of events unbroken by a new cause produced the loss or damage.  Without this cause, the loss or damage would not have occurred.  It is further defined as the primary moving cause, or the predominate cause from which the loss or damage followed as a natural, direct, and immediate consequence.  The approving authority will notify the person to be charged that financial liability has been assessed.  The notification will be in memorandum format and will inform the person they have the right to request reconsideration to (appeal) the approving authority's decision.
DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

2.  The available evidence indicates that the ROS was conducted in accordance with the applicable regulation with no indication of any violations of the applicant's rights.

3.  The applicant was afforded due process in each of his appeals and while a hearing decision was not issued within 60 days as required, ultimately, the decision was issued and he has provided no evidence to show that the outcome would have changed.  Additionally, it does not appear that the applicant was required to pay the financial liability assessed against him until all appeals had been properly exhausted.

4.  The applicant’s contention that he should not have been held liable for the loss of property because he was not negligent is noted; however, he was responsible for the care, security, and accountability of the equipment he had signed for and he was found to be negligent in the supervisory care of such equipment.  Accordingly, he was found to bear pecuniary liability for the loss of the equipment under his care. 

5.  The applicable regulation required that a ROS be conducted in this case and the evidence presented with the ROS supports the findings and recommendations of the survey officer.  Accordingly, there is no basis to reverse the findings of the ROS.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070008237



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508