MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 June 2000     
	DOCKET NUMBER:   AR1999027444

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch Jr. 		Chairperson	
	Ms. Kathleen A. Newman 		Member	
	Ms. Margaret V. Thompson 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, reversal of the finding of pecuniary liability on Report of Survey (ROS) WDPRA 081535403 (local number ROS 34-98), in the amount of $778.57.   

APPLICANT STATES:  In effect, that he was ordered by his company commander not to conduct a 100 percent inventory of equipment before he left his platoon.  Thus he was precluded from conducting an inventory and the new platoon leader was unable to conduct an inventory until several months later.  The new platoon leader was also required to turn in any property that he was not signed for.  Further, he claims the he was not given adequate notice and due process.  He submitted a rebuttal to the first report of survey on 30 August 1998, but the second ROS officer (ROSO) made his final determination on 
1 September 1998, which was insufficient time for him to consider the applicant’s appeal of the first ROS.  The applicant states he was not allowed to request reconsideration before his pay was garnished.  He also claims that the circumstances surrounding the loss were not fully investigated and some of the facts were ignored, especially the fact that he was told not to conduct an inventory by his unit commander.  

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was serving on active duty with the rank of first lieutenant, Quartermaster Corps, with the 172nd Support Battalion, 172nd Infantry Brigade (Separate), Fort Wainwright, Alaska.  He was the principal hand receipt holder for his platoon, the supply platoon.   

In March 1998, the applicant’s unit returned from an exercise and a 100 percent inventory of property was accomplished.  All his unit’s property was on hand/
accounted for.  Shortly thereafter, the applicant was reassigned to a new unit and duties.  He claims that he was told by his old company commander that a 
100 percent inventory with his replacement would not be done until the time that a new company commander would be taking over later in the spring.  The only proof of this claim is a statement from the new primary hand receipt holder that he was told by the old company commander that he would inventory the property at the time the new commander took command of the unit.  This inventory was accomplished on 26-27 May 1998.  The applicant was not present for the inventory.  At the time of the inventory, approximately $4,245.05 in property was reported as missing, to include two tarpaulins, a cargo net (5 kilogram (5K)), a pallet sling (4K) a 25K sling, and a bar code printer.  Subsequently, the printer and the 25K sling were found.  This reduce the loss to $1,038.10.  

ROS 34-98 was initiated by the unit commander on 29 May 1998.  An investigation by a first lieutenant recommended financial liability be assessed against the applicant in the amount of $327.82 as he believed that the 5K cargo net was transferred to another unit, and a 10K net was returned.  This finding was referred to the applicant for comment on 23 July 1998.  The applicant by this time was performing duties in the Sinai, and responded on 30 August 1988 to these findings.  He essentially claimed that the loss was not the result of negligence or willful misconduct on his part.  However, since the applicant was serving in the Sinai, his response was somewhat delayed and he has submitted certified mail receipts which indicate the documents were received by the battalion commander and the first ROSO on or about 24 September 1998.  

On or about 3 September 1998, a second ROSO (a captain) completed his investigation of the loss.  How or why this officer was appointed is not evident in the documents provided to the Board by the applicant.  In any case, this officer disagreed with the first ROSO, and found that the 5K cargo net  was still unaccounted for.  Therefore, he found that the applicant was liable for loss of the total $1,0387.10, upon which a 25 percent depreciation factor was  applied, which reduced the applicant’s liability to $778.57.  Since his pay was in excess of $2,600.00 per month, he was liable for the total amount to be assessed.  

There is no evidence available to the Board that the second ROS was referred to the applicant, or that he had the opportunity to rebut the adjusted findings.  Further, final approval of the ROS is not in the records available, but since the applicant claims that he was assessed $778.57 in January 1999, it is presumed that the total amounts cited in the second ROS were approved by the 172nd Infantry Brigade (Separate) commander, who was the approval authority for the ROS.

On 22 February 1999, the applicant submitted an appeal and request for reconsideration of the report of survey to the brigade commander.  In this appeal, he again claimed that he was not given adequate notice and due process since his appeal of the first ROS was not considered by the second ROSO because he did not even respond to the first ROS until 30 August 1998.  He also claims that he was not given the opportunity to request reconsideration of the ROS before his pay was garnished.  He also claims that he did not receive a complete copy of the ROS, and there was no indication of legal review of the documents he received.  He further stated that a complete investigation was not done and cited the names of several individuals he claims should have been interviewed during the investigation of the loss of property.  He then claims that certain facts were disregarded, to include the denial by his unit commander that he be allowed to conduct an inventory with his replacement;  all the property was accounted for in March 1998;  there was evidence that some equipment was transferred to another unit in the battalion to make up shortages in that unit-the name of a sergeant was given from whom the original ROSO did not take a statement;  the difference in the conclusion by the first ROSO that the 5K cargo net was counted as a 10K net and the second ROSO not accepting this conclusion/finding;  and that statements from other individuals with whom the first ROSO talked were not taken.  Finally, the applicant stated that liability was not established in that neither negligence or willful misconduct in accordance with Army Regulation 
735-5 were established.  In summary, he claimed that insufficient evidence was provided by the ROSO to the approval official that he should be held liable.  His actions were reasonable and not negligent.  And even if he was negligent, his actions would not have been the proximate cause for the loss.  

On 15 April 1999, the approval authority’s supporting Staff Judge Advocate’s (SJA) office reviewed the appeal and recommended denial.  Essentially, the SJA review indicated that there was nothing new submitted by the applicant that had not been previously considered, as required by Army Regulation 735-5 when an appeal is submitted.  Also, while names of possible witnesses with more information were provided by the applicant, this did not constitute new evidence.  The SJA stated that he could find no legal error.  He noted that the ROS had had at least two prior legal reviews which found that the ROS was legally sufficient.  

On 27 April 1999, the ROS approval authority denied the appeal without further comment.  

On 8 February 2000, the U.S. Army Pacific (USARPAC) reviewed the applicant’s case and provided an advisory opinion (COPY ATTACHED) which essentially recommended denial of the applicant’s appeal.  The opinion noted that there appeared to be no bias on the part of the investigating officers, and, in fact, both reached the same conclusion to hold him liable.  Statements available indicate that the applicant had failed to obtain hand receipts from the users, and that therefore, responsibility for control and accountability remained with him.  Even if his commander had asked him to hold off on an inventory until the new commander arrived, this did not relieve the applicant of responsibility for proper supervision and accountability for the property.  He has provided no new evidence to support his contentions and if he had wanted statements from other individuals, he should have obtained them.  Competent legal authorities had reviewed the case and there was no legal basis to overturn the decision.  

This advisory opinion was provided to the applicant for review and/or comment, but he failed to respond.  

Chapter 13 of Army Regulation 735-5 states that the Government may impose a finding of pecuniary liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage, or destruction of Government property.  The total amount of pecuniary liability for soldiers will be established as the equivalent of 1 month's basic pay at the time of the loss, or the actual amount of the loss to the Government, whichever is the lesser amount.

The Consolidated Glossary for AR 735-5 defines negligence as simple or gross, with simple negligence being the failure to act as a reasonably prudent person would have acted under similar circumstances.  Gross negligence is defined as an extreme departure from the course of action to be expected of a reasonably prudent person, all circumstances being considered, and accompanied by a reckless, deliberate, or wanton disregard for the foreseeable consequences of the act.  Willful misconduct is defined as any intentionally wrongful or unlawful act dealing with the property concerned.  

Command responsibility is the obligation of a commander to ensure that all Government property within his or her command is properly used and cared for, and that proper custody and safekeeping of Government property are provided.  It is evidenced by assignment to command at any level and includes:  ensuring the security of all property in the command; observing subordinates to ensure that their activities contribute to the proper custody, care, use, and safekeeping of all command property; enforcing all security, safety, and accounting requirements; and taking administrative or disciplinary measure when necessary. 

Direct responsibility is the obligation of a person to ensure that all Government property for which he or she has receipted for, is properly used and cared for, and that proper custody and safekeeping are provided. 

Personal responsibility is defined as the obligation of a person to exercise reasonable and prudent actions to properly use, care for, and safeguard all Government property in his or her possession.  It applies to all Government property issued for, acquired for, or converted to a person's exclusive use, with or without receipt.  

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:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and the advisory opinion, it is concluded:

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

2.  The applicant was the primary hand receipt holder in his platoon and responsible for supply accountability.  He was transferred to new duties, and the turn over of the equipment to a new hand receipt holder was delayed for approximately 2 months.

3.  There is no evidence available and the applicant has provided none which would show that he took specific action to insure that all property on his hand receipt was further hand receipted to the primary user of the property when he was transferred to new duties.  

4.  This is considered negligence on the applicant’s part.  The delay in the inventory and turn-over of the unit’s equipment to his replacement was not the proximate cause of the loss, it was the failure to have proper accountability procedures in effect which was the cause for the loss.

5.  The Board notes that there were most likely more documents prepared and completed in connection with the ROS.  It is incumbent on the applicant to show that there was an error or injustice contained in these documents.  In the absence of evidence to the contrary, the Board must presume regularity in Government operations in this case.  This is supported by the advisory opinion from the USARPAC.

6.  The Board further notes that the legal review of his appeal by the supporting SJA to the 172nd Infantry Brigade (Separate) commander in April 1999 indicates that at least two prior legal reviews had been conducted.  The Board therefore must conclude that no basis has been established to legally set aside the assessment of liability in the ROS.  

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__owt___  __kan___  __mvt ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999027444	
SUFFIX		
RECON		
DATE BOARDED	20000615	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	128.10	
2.		
3.		
4.		
5.		
6.