PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           21 August 2001     
	DOCKET NUMBER:   AR2001051477

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 that he be relieved of all financial liability imposed against him by Report of Survey (ROS) C43-99 and that all monies collected be returned to him with interest.

3.  The applicant states, in effect, that the loss of Government property occurred prior to his assignment to the unit; that he reported the missing equipment to the appropriate authority; and that he was told to sign for the Nuclear Biological Chemical (NBC) Property Room.  He further states that since the loss occurred prior to his assignment to the NBC Property Room, the ROS assessing financial liability against him for the loss of Government property lacks sufficient legal justification to hold him financially responsible.  In support of his application, the applicant submitted a 3-page statement in his own behalf.

4.  The applicant’s military records show that, at the time of the loss, he was a private, pay grade E-2, serving with the 101st Airborne Division (Air Assault).  With less than 6 months time-in-service, and as an E-2, he was placed in charge of his unit's NBC Property Room and all of the equipment therein.  He conducted an inventory and noticed that 17 Chemical M40 Masks were missing.  He notified his sergeant of this fact.

5.  On 25 January 1999 during a change of command inventory, it was discovered that 17 Chemical M40 Masks were missing from the NBC Property Room, a value of $1, 624.69.  The commander initiated a ROS on 26 January 1999.  On 3 February 1999, the appointing authority reviewed the conclusions of the ROS and determined that the circumstances surrounding the loss warranted further investigation.  During the investigation, the amount of loss ($1, 624.49) was reduced by $406.17 to a grand total of $1,218.52 due to the allowance of a twenty-five percent (25%) depreciation factor.  On 17 March 1999, a survey officer was appointed and an investigation was conducted.  The survey officer concluded that the missing property was the result of simple neglect on the part of a sergeant and the applicant.  He recommended that the sergeant be held financially liable for $743.12 and the applicant be held liable for $475.40.  On 24 March 1999, the applicant was officially notified that he was being recommended for financial liability to the United States Government in the amount of $475.40 for losses investigated through a ROS.  The results of the ROS were approved on 26 May 1999.  The applicant rebutted the ROS findings without success.

6.  In the processing of this case, the United States Army Logistics Integration Agency (USALIA) provided an advisory opinion from the Office of the Deputy Chief of Staff for Logistics recommending that the applicant be relieved of financial liability.  The opinion found that the applicant should not have been held 

financially liable along with the sergeant.  Once the applicant reported to the sergeant that 17 masks were missing, the records do not reflect that any action was taken to recover the missing masks.  According to Army Regulation (AR) 735-5, paragraph 13-28b(4)(a), the applicant's age, rank and experience level should have been considered in determining whether his actions constituted negligence in the loss of equipment.  The applicant was too young, too junior in grade, and had no prior experience in managing an NBC Property Room.  However, it is clear that he made note of the missing masks and took appropriate action before he signed for the NBC Property Room.  No negligence can be assigned to the applicant’s actions nor can he be considered culpable for something that happened prior to his assignment to the NBC Property Room.  The sergeant was responsible for the equipment in the NBC Property Room prior to the applicant’s assignment and took no initiative to reconcile his hand receipt or establish accountability for the missing equipment.  The records reflect that the applicant was not negligent in his duties of safeguarding the property physically assigned to his charge.  There is no basis to hold him jointly liable with the sergeant.  He reported the missing property to the sergeant.  His assignment to the NBC Property Room does not automatically make him accountable for that which is missing.  In this case, the applicant’s actions were reasonable and prudent in protecting himself from unlawfully signing for property that he knew was not physically present.  In view of this, the USALIA opined that the applicant’s assessment of financial liability should be reversed and all monies collected should be refunded with interest.  On 28 May 2001, the applicant concurred with the advisory opinion.

7.  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.

8.  The consolidated Glossary of AR 735-5 defines simple negligence as 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 expected of a reasonably prudent person, and accompanied by a reckless, deliberate, or wanton disregard for the foreseeable consequences of the act.  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.

9.  Army Regulation 15-185 provides Department of the Army policy, criteria and administrative instructions regarding an applicant’s request for correction of a military record.  Chapter 3 of this regulation, states in pertinent part, that the Army, by law, may pay claims for amounts due to the applicants as a result of correction to military records; however, the Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under 10 United States Code 1552. 

CONCLUSIONS:

1.  The applicant was assigned to the NBC Property Room.  Prior to signing for the property, he did an inventory of the NBC Property Room and found that 17 masks were missing from the inventory.  He noted and reported the missing property to the appropriate authority. 

2.  The ROS found the applicant liable for $475.50 worth of missing property.  However, since the loss occurred prior to the applicant’s assignment to the NBC Property Room, the ROS assessing financial liability against the applicant for the loss of Government property lacks sufficient legal justification to hold him financially responsible.

3.  The advisory opinion rendered by USALIA recommended that the applicant be relieved of all financial liability and all monies collected be refunded with interest.

4.  This Board, by law and regulation, may not pay interest on any claims.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned is relieved of financial liability assessed by ROS C43-99 in the amount of $475.40 and that all monies collected from him be refunded.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_JEV___  ___BJE___  _WDB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____James E. Vick__________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001051477	
SUFFIX		
RECON		
DATE BOARDED	20010821	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	20000627	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	ETS	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	128.1000	
2.		
3.		
4.		
5.		
6.