IN THE CASE OF:	  

		BOARD DATE:	       18 December 2008

		DOCKET NUMBER:  AR20080006480 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that she be reimbursed the garnishment of $3,609.90 based on a Report of Survey (ROS).

2.  The applicant states she was not afforded the opportunity to rebut the Report of Survey in direct violation of regulation.  She states that she does not believe that the Report of Survey exists.

3.  The applicant provides copies of her Defense Finance and Accounting Service (DFAS) Leave and Earnings Statement (LES), e-mail correspondence related to attempts to obtain a copy of the ROS, and an 18 April 2007 memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 June 1979, served on active duty until 15 April 1981 and in the U.S. Army Reserve (USAR) from 16 April 1981 until 6 November 1985.  

2.  She reenlisted on 1 September 1994 and served in a Reserve enlisted status until she was commissioned a Medical Services Corps second lieutenant in the USAR.  



3.  The applicant served on active duty from 19 July 2003 through 14 April 2004 with service in Bosnia from 17 August 2003 through 17 March 2004.

4.  She was promoted to captain effective 8 April 2005.

5.  In November 2005 the applicant commenced attempts to locate a Report of Survey that had resulted in a withholding from her Reserve pay in the amount of $3,609.90.  The series of e-mail correspondence shows that no one was able to locate a copy of a Report of Survey, a Financial Liability Memorandum, or any documentation that would indicate that the applicant had been afforded her rights of notification and rebuttal.

6.  Headquarters, 34th Infantry Division, National Guard Training and Community Center, Rosemount, MN, Memorandum for Record by the Deputy G-4, dated
18 April 2007, states that the Division G-4 section maintains copies of all Reports of Survey to include those from the Stabilization Force 14 a deployment to Bosnia-Herzegovina during September 2003 through April 2004.  An extensive investigation had been undertaken and no record of a Report of Survey was located pertaining to the applicant.  Further, no member of the staff recalled that the applicant was ever charged or investigated for any loss.  After exhausting all logical steps to locate any information on the missing Report of Survey, it was determined that no Report of Survey had been initiated from that office and it was recommended that the applicant be relieved of any financial liability and that she be reimbursed in the amount of $3,609.90.

7.  In the development of this case an advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4, Washington, DC.  It was noted that, after extensive research, no Report of Survey or Financial Liability Memorandum could be located.  Without being able to locate either the Financial Liability Memorandum or the Report of Survey, it was recommended that the Soldier be reimbursed $3,609.90, the amount withheld from her pay.

8.  A copy of the advisory opinion was forwarded to the applicant and she concurred with the findings. 

9.  Army Regulation 735-5 (Policies and Procedures for Property Accountability), sets forth the policy and procedures for property accountability.  In pertinent part, it provides the following: 

	a.  paragraph 13-1, states the financial liability investigation of property loss prescribed by the DOD Financial Management Regulation, Volume 12, chapter 7, replaces the report of survey system;

	b.  paragraph 13-2 states a financial liability investigation of property loss documents the circumstances concerning the loss of Government property and 
serves as, or supports a voucher for adjusting the property from accountable records.  It also documents a charge of financial liability assessed against an individual or entity, or provides for the relief from financial liability;

	c.  paragraph 13-34 states the financial liability officer will give any individual, against whom he or she makes a recommendation to assess financial liability, a chance to examine the financial liability investigation of property loss after the findings and recommendations, and the opportunity to make a rebuttal statement in his or her behalf.  The financial liability officer is to explain to the individual recommended for a charge of financial liability, the consequences of the recommendation, if approved; significance of any rebuttal statement submitted by him or her regarding the possible assessment of financial liability; attach any statement the individual desires to submit.  Additionally, the financial liability officer will notify the individual by memorandum of their right to inspect and copy Army records relating to the debt; to legal advice and to submit a statement and other evidence in rebuttal of the financial liability officer's recommendation. 

DISCUSSION AND CONCLUSIONS:

1.  After at least two extensive investigations no documentation was found that showed that a Report of Survey was properly created or that the applicant had been afforded her rights to rebut one if it had been.

2.  All investigators and officials concerned concur that there is no indication that the indebtedness created by Report of Survey was proper and that the applicant should be reimbursed all monies withheld as a result of this action, $3,609.90. 

3.  If a Report of Survey was in fact prepared the officer doing so failed to afford the applicant any of her rights to challenge the findings and offer a rebuttal.  

4.  In light of the lack of any indication that a Report of Survey was properly handled and the apparent violation of the applicant's legal rights, it is appropriate to grant the applicant's request and reimburse her the total amount of monies withheld ($3,609.90).

BOARD VOTE:

___X____  ___X____  ___X____  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 she was relieved of financial liability by a purported Report of Survey initiated in 2004 in the amount of $3,609.90 and that any portion of that debt already collected be refunded to her as an erroneous collection.


															XXX
      ______________________
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006480



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ABCMR Record of Proceedings (cont)                                         AR20080006480



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