PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  27 March 2001
	DOCKET NUMBER:  AR2000047081

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Allen L. Raub		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 his financial liability for the loss of Government property under report of survey (ROS) #99-I01 be removed and
that all funds deducted from his pay be refunded.

3.  The applicant states, in effect, that he was held financially liable for the loss 
of a laptop computer which he believes is an error.  In support of his application he submits two DA Forms 2823 (Sworn Statement), a copy of the report of investigation, and a copy of the complete survey file.

4.  Counsel states that the applicant was held financially liable in the amount 
of $2,449.00 for the loss of a laptop computer under Army Regulation 735-5, paragraph 13-28 (6) (b)(2), simple negligence, which he believes to be in error.  
The applicant was acting in his capacity as the primary supply officer for his unit
when he accepted the computer.  The applicant stored the computer in the area designated by his command and followed the guidance of his command which was consistent with mission accomplishment.  Counsel concludes by stating that under these circumstance the applicant’s actions were reasonable and he cannot be held financially liable pursuant to Army Regulation 735-5.

5.  The applicant’s military records show that he enlisted on 29 September
1981.  At the time of the incident in question, he was serving in the pay grade 
of E-7 and assigned as the unit supply sergeant for a Mobile Public Affairs Detachment (MPAD).

6.  On 20 January 1999, an inventory was conducted which determined that a laptop computer was missing, which was one of the seven hand receipted from the 115th MPAD.  At the time of the inventory, this laptop was still the direct responsibility of the applicant and was maintained in the MPAD office.

7.  On 23 March 1999, a ROS was initiated by the property book officer.  On 31 March 1999, the survey officer determined that the laptop listed on the DA Form 4697, total cost $2,713.19, was lost due to the applicant’s simple negligence.  Because a periodic inventory was not conducted, the time of the loss could not be determined.  This, in conjunction with the fluid mission of the 115th MPAD, was the cause of the loss of accountability on the applicant’s part.  He recommended that the applicant be held liable in the amount of $1,356.60.

8.  On 15 June 1999, the applicant was notified by the division commander
that financial liability had been assessed against him by the US Government in the amount of $2,449.00 for the full cost of Government property investigated under subject ROS #99-I01.  The commander also advised the applicant of his rights under paragraph 13-40 of Army Regulation 735-5.  On that same day, the applicant acknowledged receipt of the notice of assessment of financial liability contained in the basic correspondence and that he was aware of his rights.

9.  Army Regulation 735-5 prescribes basic policies and procedures in accounting for Army property.  Chapter 13 of the regulation 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.  Negligence is defined as simple or gross, with simple negligence being the failure to act as a reasonable 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 reasonable 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.  Direct responsibility is defined as the obligation of a person to ensure that all Government property for which he has receipted for is properly used and cared for and that proper custody and safekeeping is provided.  Command responsibility is the obligation of a commander to ensure that all Government property within his command is properly used and cared for, and that proper custody and safekeeping is provided.  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.

10.  In the processing of this case an advisory opinion was provided by the
Supply and Maintenance Division, Deputy Chief of Staff for Logistics.  The opinion recommended that the assessment of financial liability against the applicant be reversed.  The opinion indicates that the applicant took all the 
steps that a reasonable and prudent individual could have taken to safeguard the missing laptop computer, in the environmental circumstance and working situation that he and his team members were required to work.  

11.  The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of his case.  The applicant responded within 
the timeframe allotted and concurred on 5 February 2001.

CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant was directed to sign
for seven laptop computers, hand receipt six of the computers to several of the unit’s public affairs teams and store the remaining computer in a corner of the work area assigned to his team.  The evidence of record also shows that an inventory was conducted by the applicant and he informed his commander that the laptop was missing.  After searches for the laptop produced no results, the applicant informed the CID of the missing computer, and an ROS was initiated.
The survey officer recommended pecuniary liability for the total loss of the laptop and determined that the laptop was lost due to the applicant’s simple negligence.

2.  An advisory opinion was provided by the Deputy Chief of Staff for Logistics.  The opinion indicated that the applicant took all the necessary steps that a reasonable and prudent individual could have taken to safeguard the missing laptop and recommend that the assessment of financial liability against the applicant be reversed.  Therefore, this Board recommends that the financial liability for the loss of Government property under the report of survey #99-I01 
be removed and that all funds deducted from his pay be refunded.

3.  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 individual concerned was relieved of pecuniary liability for
the loss of Government property under the report of survey #99-I01 and that all funds deducted from his pay be refunded.

BOARD VOTE:  

__ra____  ___gw__  ___ar_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Roger W. Able___
		        CHAIRPERSON

INDEX

CASE ID	AR2000047081	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010327	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	NA/ACTIVE DUTY	
DISCHARGE AUTHORITY	AR –na	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  1024		
2.		
3.		
4.		
5.		
6.