PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 October 2000                  
	DOCKET NUMBER:   AR2000042152

	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.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that all financial charges against him resulting from Report of Survey #98-120B be dropped and that he be found not negligent or liable.

3.  The applicant states that the investigating officer retracted his previous statement finding him liable.

4.  The applicant’s military records show that he is a Staff Sergeant, E-6 holding military occupational specialty (MOS) 11M30J3 and performing duties in his MOS as company master gunner for the M2A2 Bradley Fighting Vehicle.

5.  On 8 August 1998, the applicant’s unit was conducting firing training when a 25mm gun on one of the Bradley Fighting Vehicles experienced problems.  The gun was worked on by the applicant and the gun’s crew; however, the gun then exploded in the turret, causing the gun barrel to separate from the receiver and causing $48,203.00 in damages.  The survey officer found that the applicant and the gun’s crew liable for the damages (the applicant for 30 percent of the damages).  The findings of the Report of Survey were approved on 24 November 1998 and the applicant charges were $553.59.

6.  On 25 July 1999, the applicant appealed the findings of the Report of Survey.

7.  On 13 April 2000, the survey officer retracted his previous conclusions.  He stated that new evidence, to include examination of the exploded round which was introduced as evidence after the Report of Survey’s conclusions were submitted, shed new light on a different explanation for the explosion that placed 100 percent culpability with the vehicle’s crew.  

8.  In the processing of this case, an advisory opinion was obtained from the Supply, Maintenance, Services and Systems Division, U. S. Army Forces Command.  Based upon the survey officer’s retraction, that office recommended that the Report of Survey be reopened, that the applicant’s liability be reversed and that all funds deducted from his pay account be refunded.

9.  A copy of the advisory opinion was provided to the applicant.  He did not respond within the given time frame.

10.  Army Regulation 735-5 prescribes basic policies and procedures in accounting for Army property.  In pertinent part, it 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. 

CONCLUSIONS:

1.  Given the further findings and recommendation of the survey officer and in accordance with the advisory opinion, the Board concludes that it would be appropriate to reopen Report of Survey #98-120B as pertains to the applicant and show that the applicant was not financially liable for the loss of the gun.  It would be appropriate to refund any and all monies paid by him in accordance with the original Report of Survey findings and recommendation.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant was relieved of pecuniary liability assessed by Report of Survey #98-120B in the amount of $553.59 and that any monies collected from the applicant’s military pay be refunded.

BOARD VOTE:  

__jns___  __rjw___  __rtd___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000042152	
SUFFIX		
RECON		
DATE BOARDED	20001003	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.