IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20110019971 


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, that the findings of a Report of Survey (ROS) Number 89-xxx-05 be voided and that all funds taken from him be returned to him.

2.  The applicant states, in effect, that he was unjustly found to be negligent in the loss of government property and found pecunilarily liable for 1 month's pay ($5,092.80).  He also states the ROS was improperly conducted because it failed to identify the proximate loss and the act of negligence that resulted in the loss and that a fair and adequate investigation was not conducted.  He also states his unit was deployed for 24 months of the 28 months he was in command and a Command Supply Discipline Program (CSDP) was not in effect with the unit that maintained the equipment he left behind during his unit's deployment.

3.  The applicant provides:

* A DA Form 4697 (Department of the Army ROS) and associated documents
* His appeal of the findings of the ROS
* A copy of a legal review
* A copy of an All Army Activity (ALARACT) message regarding the sustainment of equipment left behind during deployment
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three letters of support


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 10 November 1986 for a period of 8 years.  He completed his training and he was assigned to a USAR Troop Program Unit (TPU) in Kansas.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 15 July 1992.

2.  On 19 November 1997, he was commissioned as a USAR second lieutenant (2LT/O-1).  He was promoted first lieutenant (1LT)/O-2 on 16 November 1999. 

3.  He assumed command of a Military Police Company (Escort Guard) on 1 December 2002 while in the rank of 1LT and commanded during two full deployments in Kuwait and Iraq.  He was promoted to captain (CPT)/O-3 on 11 March 2004 and he changed command on 11 July 2004.

4.  On 2 September 2004 an ROS was completed that found $37,450.21 worth of Organizational Clothing and Individual Equipment (OCIE) was unaccounted for during the change of command inventory.  The investigating officer (IO) recommended the applicant be held financially liable for $5,092.80 (1 month’s base pay).  The appointing authority concurred with the recommendation on
24 September 2005.

5.  On 26 September 2005, a memorandum was dispatched to the applicant advising him of the results of the ROS and advised him of his rights.  He was given a suspense date of 3 October 2005 to respond.

6.  On 9 December 2005, another memorandum was dispatched to the applicant advising him of the results of the ROS and advised him of his rights.  He was given a suspense date of 11 January 2006 to respond.  On 10 December 2005, the approving authority approved financial liability.  On 9 January 2006, the applicant provided a response.

7.  It appears the applicant appealed the findings and recommendation of the ROS and on 30 April 2007, the appeal authority at the 89th Regional Readiness Command (RRC) denied his appeal.  The applicant requested reconsideration of his appeal and on 30 July 2007 his request was denied.

8.  In the processing of this case a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-4.  The advisory official recommended the financial liability assessed against the applicant be reversed and that all monies deducted from his pay as a result of the ROS be returned to him.  The advisory official cited three reasons for his recommendation for relief that included:

* the applicant was serving in the rank of 1LT when the property was lost but was incorrectly charged as a CPT
* the appointing authority concurred with and signed the ROS before the applicant was afforded an opportunity for rebuttal
* the survey officer's findings and recommendation did not illustrate any real findings or facts to recommend financial liability

Additionally, the survey officer noted that the applicant was not able to complete his incoming change of command inventory or pre-mobilization inventory.

9.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  A review of the applicant's official record shows he deployed on at least four occasions.  It also shows he was promoted to major (MAJ)/O-4 on 11 August 2008.

11.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) provides the policies and procedures for property accountability.  It provides that responsibility is the obligation of an individual to ensure government property and funds entrusted to his or her possession, command or supervision are properly used and cared for, and that proper custody and safekeeping are provided.  Command responsibility is the obligation of a commander to ensure all government property within his or her command is properly used and cared for and that proper custody and safekeeping are provided.  Command responsibility is inherent and cannot be delegated.  Accountability and each type of responsibility carry specific duties.  Financial liability can be assessed against any person who fails, through negligence or misconduct, to perform those duties and where such failure is the proximate cause to a loss to the government.

DISCUSSION AND CONCLUSIONS:

1.  Although it is a basic tenet that is taught to all Soldiers from the rank of private and higher that one does not sign for property that they do not have, get, or see because they will pay for it if it cannot be accounted for, it appears the property that was unaccounted for was property the unit left behind when they deployed to Kuwait and Iraq for two full deployments.

2.  It can also be argued that the applicant should have taken steps to sub-hand receipt all property left behind in Kansas to whoever was left in charge of the equipment; however, it appears that was not done.

3.  In any event, there is insufficient evidence to show the property in Kansas was lost through the negligence of the applicant who was serving in Kuwait and Iraq for a 24-month deployment.

4.  Therefore, given the findings and recommendation of the G-4, it would be in the interest of justice to reverse the findings of the ROS that found the applicant financially liable in the amount of $5,092.80 and returning to him all funds deducted from his pay based on those findings.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 financially liable as indicated in Report of Survey Number 89-xxx-05.

2.  The Board further requests that the Defense Finance and Accounting Service reimburse the applicant any monies already collected from his pay as a result of this records correction.



      ____________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)                                         AR20110019971



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ABCMR Record of Proceedings (cont)                                         AR20110019971



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