BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20080018500 


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, in effect, removal of the financial liability assessed against him in the amount of $644.91.  He also requests that the funds that have already been collected be returned to him.

2.  The applicant states he believes the financial liability assessed against him in June 2005 for the loss of Organizational Clothing and Individual Equipment (OCIE) was wrong.  In an enclosed memorandum, dated 12 November 2008, the applicant states, in effect, that: 

   a.  He was found liable for the loss of staff sergeant (SSG) J******'s OCIE.  He requested reconsideration of the finding but he was turned down by the approving authority.  

   b.  His rebuttal was late due to two permanent change of station moves and not being able to find the paperwork.  He was also dealing with being divorced and a single parent.

	c.  He believes the charge was brought against him because the battalion wanted to use him an example.

	d.  During the legal review, the Command Judge Advocate determined that the findings were legally insufficient for liability on 7 June 2005.

	e.  He and the commander (Captain H*****) were not negligent in the matter. They received daily reports from each platoon in the company.  There was no mention of equipment not being inventoried until SSG J****** came forward.

	f.  The events occurred in April 2004, referencing SSG J******'s sworn statement.  Although second lieutenant B*** may have seen him in the area, he was not serving in a supervisory capacity, he was on leave, or attending the First Sergeants Course.  He has enclosed a DA Form 31 (Request for Leave) and a DA Form 1059 (Service School Academic Report).

	g.  Upon his return from the course a 100% inventory of the company and Soldiers Table of Allowances (TA)-50 was conducted.  SSG J****** informed him prior to the inspection that her TA-50 was missing.

	h.  He has exhausted all administrative remedies and he has attached all of the paperwork that he has pertaining to this case.

3.  The applicant provides in support of this application a copy of the financial (Report of Survey) investigation and supporting documents.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted in the Regular Army, on 17 February 1987, and he was awarded the military occupational specialty of medical specialist.  He was promoted to pay grade E-9, and separated with sufficient service for retirement and placed on the retired list on 31 July 2009.

3.  In a sworn statement, dated 10 November 2004, SSG J****** stated that she departed from Iraq right before Thanksgiving on 2 weeks of Rest and Recuperation (R&R).  Once she was stateside she was placed in a non-deployable status due to medical issues requiring surgery.  She stated that she did not return to Iraq and was told all her things would be inventoried and shipped back to the United States.  However, she only received her Molle Rucksack and one duffle bag which contained only items from her room.  She stated that she informed the supply noncommissioned officer (NCO) of this.  The supply NCO told her that following completion of the change of command inventory she needed to provide a sworn statement and her Central Issue Facility (CIF) record so that a report of survey could be done.  She states that she accomplished this in May 2004.  She then learned that the paperwork had been lost on several occasions and she resubmitted the paperwork in June, August and in October 2004.  She states that her paperwork was again lost.  However, the supply room was being moved in November 2004, and it was during this move that she found her paperwork along with another individual's paperwork and took it to First Lieutenant McC***** for submission through the proper channels.

4.  A report of survey was initiated by Captain Z*** on 17 December 2004.  Block 11 (Date and Circumstances) of the DA Form 4697 (Report of Survey), dated 17 December 2004, indicated that SSG J****** left Iraq in November 2003 for 
2 weeks of R&R.  She did not return to Iraq and was told that her belongings would be inventoried by the supply sergeant and shipped back to Fort C******* in the same container as the company's equipment.  Upon arrival of the company's equipment, SSG J****** noticed that her Molle Ruck was empty and that her duffle bag contained items from the room she occupied in Iraq.  There was no TA-50.  SSG J****** informed the applicant and the supply sergeant about her missing property.  The supply sergeant told SSG J****** to produce a sworn statement and a signed copy of her CIF hand receipt so a report of survey could be initiated.  Due to some of the personnel involved with conducting the report of survey departing the unit soon after initiation of the report of survey investigation, the report of survey paperwork was lost in the supply system.

5.  First Lieutenant B*** stated in her sworn statement, dated 21 March 2005, that the cage (Table of Organization and Equipment (TOE)/storage area) was often left open all day.  She stated that even when a key was given to someone to use it was never signed for or accounted for.  SSG J****** stated in her sworn statement, dated 4 April 2005, that the storage area was not locked when she went to retrieve her belongings.

6.  From the records provided, it appears the survey officer (SO) completed his investigation on or about 11 April 2005.  The findings and recommendations are as follows:


   a.  Property valued at $1,628.57 was lost due to simple negligence on the part of Captain H***** and the applicant, who was the first sergeant at the time.  SSG J******'s OCIE was inventoried and recorded on a DD Form 1750 (Packing List) by Second Lieutenant P****** prior to redeployment from Operation Iraqi Freedom.  

	b.   Upon arrival at the home station the milvan (container) was unloaded in the company TOE room.  The equipment was not inventoried at this time.  Therefore, the chain of custody was broken at this time.

	c.  The SO stated that the commander is responsible for establishing a system that will ensure accountability of subordinates' equipment in use or in storage according to Army Regulation 735-5 (Policies and Procedures for Property Accountability).  

   d.  The SO stated that the applicant indicated that at least four Soldiers had keys to the TOE room and that he did not know who else had a key.  The supply room was often left open during duty hours and keys were not signed for.  The SO found that as a supervisor the applicant was responsible for his actions under the provisions of Army Regulation 735-5, chapter 13-28.  
   
   e.  Captain H***** did not have an adequate system in place to ensure security and accountability of company equipment.  This was the proximate cause for the loss of SSG J******'s OCIE.  The inefficiencies of this system were multiplied by Captain H***** and the applicant's failure to supervise.

	f.  Upon discovering that the equipment was missing the proper procedures were not followed in accordance with Army Regulation 735-5.  According to Exhibits F and H the first action taken was to start a report of survey, with no attempt to find the missing equipment.  In addition to an internal investigation, legal authorities should have been contacted.  Failure to follow standard procedures before initiating an administrative adjustment document prevented any possibility that the equipment could be recovered.

	g.  The total cost of the lost OCIE after allowing for depreciation in accordance with Army Regulation 735-5 is $1,465.71.

	h.  The SO recommended that Captain H***** and the applicant be held collectively financially liable in the amount of $820.80 and $644.91, respectively, and SSG J****** be relieved from responsibility and accountability for the lost items.  Captain H*****'s base pay was $4,568.70 and the applicant's base pay was $3,517.50. 

7.  On 10 May 2005, the applicant rebutted the recommendation, requesting disapproval of the findings and recommendations, on the grounds that they failed to provide sufficient legal justification to hold him financially liable.  He stated in his rebuttal that while he had supervisory responsibility as the company first sergeant, he did not through negligence or willful misconduct violate a particular duty involving the care of the property.  He indicated the responsibility to inventory the TA-50 prior to loading for shipment was delegated to personnel in the platoon hierarchy.  He stated that given the facts, it cannot be said with certainty that but for his failure to personally inventory, pack, and track SSG J******'s TA-50, the loss would not have occurred.  He indicated that but for the Soldiers' failure to follow Captain H's order and to properly inventory and account for the property from Iraq to Fort C*******, SSG J******'s equipment would not have been lost.  He concluded by indicating that since his conduct was neither negligent nor the proximate cause of the loss of the equipment, he was requesting that financial liability not be imposed upon him for the loss.   

8.  In a legal review, dated 7 June 2005, the Command Judge Advocate found the report of survey to be legally insufficient for the reasons listed below:

	a.  Of all the parties involved with the collection, shipping, and storage of SSG J******'s OCIE, Captain H***** and the applicant had the least involvement.  Accordingly, there is simply no evidence that negligence, if any, on their part was the proximate cause of the loss of SSG J******'s equipment.  The SO failed to articulate how, but for negligence by Captain H***** and the applicant, this equipment would not have been lost.

	b.  Even if the approving authority chooses to hold Captain H***** and the applicant liable, liability has not been correctly apportioned.  The SO simply split the cost evenly.  This is improper.  Individuals held liable should pay a pro rata share based on their comparative base pay at the time of the loss.

9.  The Command Judge Advocate stated that the equipment appears to have been lost while stored in the TOE room.  He recommended that the SO focus on who had direct control over that room, and whether or not that individual took adequate means to ensure the security of the items therein.  

10.  In a memorandum of record, dated 22 June 2005, written in response to the 
7 June 2005 legal review, the SO indicated that the chain of command did not provide a system that would allow for accountability by those individuals with direct control over the TOE room.  He stated that sworn statements from senior NCO’s described the lack of security and uncontrolled access to the company supply room.  He also stated that neither the company commander nor the applicant made a statement in their rebuttals about the supply discipline and how it was to be executed.  The SO stated that rather than relieve the company commander and the applicant as suggested in the legal review, he was recommending that they be held financially liable for the missing equipment.  He then stated that he adjusted the liability to reflect a pro rata share based on the individuals' comparative base pay at the time of the loss.

11.  On 28 July 2005, the applicant was notified that financial liability was being assessed against him by the U.S. Government in the amount of $644.91 for Report of Survey Number A***-**.  The notification memorandum invited the applicant’s attention to Army Regulation 735-5, Chapter 13 which listed his rights relative to this matter.  The applicant acknowledged receipt of notice of assessment of financial liability contained in the basic correspondence and acknowledged he was aware of his rights as listed in that correspondence.

12.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff (DCS), G-4.  In the advisory opinion, the DCS official recommended that the financial liability assessed against the applicant be upheld and that he be charged as indicated the amount of $644.91 for the lost OCIE.  The official indicated the applicant did not exercise reasonable and prudent actions to properly safeguard and secure the OCIE belonging to SSG J****** who departed from Iraq on leave and did not return.  The official further indicated that prior to deployment, Second Lieutenant P****** and SGT D**** inventoried SSG J******'s OCIE, recorded it on DD Form 1750, and packed it in a quadcom for shipment back to the home station.  Upon redeployment the quadcoms were downloaded and the OCIE put in the company TOE room as directed by the commander and the applicant.  The official further states that the applicant and the commander did not ensure that the TOE room was secure at all times in accordance with Army Regulation 190-11 and Army Regulation 
735-5.  Statements from several individuals indicated that the room was always left open and not monitored as to who things from the room. 

13.  The applicant was provided an opportunity to respond to the advisory opinion and he did not respond.

14.  Army Regulation 735-5 prescribes the basic policies and procedures in accounting for Army property and sets the requirement for formal property accounting within the Army.  It implements specific property accounting procedures, defines accountability and responsibility, identifies the categories of property and the accounting procedures to be used with each, and identifies the basic procedures for operating a property account.
15.  Chapter 13 of Army Regulation 735-5 details the report of survey process and states:  

	a.  individuals may be held financially liable for the loss, damage, or destruction of Government property if they were negligent or have committed willful misconduct, and their negligence or willful misconduct is the proximate cause of that loss, damage, or destruction.

	b.  when negligence or willful misconduct are shown to be the proximate cause for a loss, an amount equal to 1 month's basic pay at the time of the loss, or the actual amount of the loss to the Government, whichever is less, may be assessed.

	c.  when more than one person's negligent act or acts of willful misconduct are the proximate cause for the loss, those persons should be recommended for assessment of collective financial liability.  The term "collective financial liability" is used when more than one individual is found financially liable for a loss.

16.  Chapter 13 also provides that when an SO intends to recommend financial liability, the following will take place:

	a.  The respondent, the individual against whom financial liability is recommended or assessed, will be given a chance to examine the report of survey after the findings and recommendations have been determined.  The individual will be afforded the opportunity to submit a rebuttal statement on his behalf.

	b.  After considering the rebuttal, the SO will forward the report of survey to the appointing authority or the approving authority as appropriate for action.

	c.  The appointing authority will review the report of survey to ensure that the survey:

(1)  resolves contradictory statements.

(2)  confirms/refutes self-serving statements.

(3)  reflects clearly stated findings from documented evidence.

(4)  presents sound and logical conclusions and recommendations based
on the findings and policy.

(5)  reflects that individuals have received counseling, advisement of their 
rights, and an opportunity to rebut on their behalf.

(6)  reflects correct computation of financial charges.
(7)  reflects an unbiased investigation.

	d.  The appointing authority will review the action taken by the SO, make certain all requirements have been met, and make a decision as follows: return of survey to the SO, concur or nonconcur with the findings and recommendations. 

	e.  The approving authority will obtain a legal review as to the legal sufficiency of the report of survey and, if he decides to approve liability, will notify the respondent on the assessment of financial liability.

	f.  The respondent will be informed of the following rights to:

(1)  inspect and copy Army records relating to the debt.

(2)  obtain legal counsel.

(3)  request reconsideration of the assessment of financial liability based 
on legal error.

(4)  request remission/cancellation of the debt (enlisted only, if 
reconsideration is denied).

(5)  seek relief through the ABCMR.

17.  The Consolidated Glossary for Army Regulation 735-5 defines negligence as the failure to act as a reasonably prudent person would have acted under similar circumstances.  An act or omission that a reasonably prudent person would not have committed, or omitted, under similar circumstances and which is the proximate cause of the loss of, damage to, or destruction of Government property.  Failure to comply with existing laws, regulations, and/or procedures may be considered as evidence of negligence.  Supervisory responsibility is the obligation of a supervisor to ensure that all Government property issued to, or used by, his or her subordinates is properly used and cared for, and that proper custody and safekeeping of the property are provided.  It is inherent in all supervisory positions and is not contingent upon signed receipts or responsibility statements.  Responsibilities include:  providing proper guidance and direction; enforcing all security, safety, and accounting requirements; and maintaining a supervisory climate that will facilitate and ensure the proper care and use of Government property.  Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss or damage would not have occurred.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the report of survey findings and recommendations assessed against him failed to provide sufficient legal justification to hold him financially liable.  He contends that while he had supervisory responsibility as the company first sergeant he did not through negligence violate a particular duty involving the care of the lost property.

2.  The available evidence indicates that prior to deployment SSG J******'s OCIE was inventoried, recorded on a DD Form 1750, and packed in containers for shipment back to the home station.  Upon return the containers were unloaded and the OCIE was put in the company TOE room.  This room should have been secured at all times in accordance with Army Regulation 190-11 and Army Regulation 735-5.  However, available evidence indicates the room was normally left open and not monitored as to who entered and exited the room.  Ultimately, the commander and the applicant were responsible for ensuring the security of the items and the available evidence indicates that they did not sufficiently supervise and ensure measures were in place to provide the appropriate security for the lost property.  By not doing so, they established lax property accountability measures which led directly to the losses reported on the subject report of survey.  The preponderance of evidence indicates the applicant did not exercise reasonable and prudent actions to properly safeguard and secure the OCIE.  As such, the findings and recommendations of the SO properly assigned the proximate cause of the applicant's negligent actions.

3.  The applicant's rights were protected relative to this matter.  As such, it would be appropriate to uphold the decision that the applicant was financially liable for the loss.

4.  The conclusions are supported by the G-4 advisory opinion.

5.  In view of the foregoing, there is insufficient basis to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x____  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.




      _______ _   _x______   ___
               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)                                         AR20080018500



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ABCMR Record of Proceedings (cont)                                         AR20080018500



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