PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           14 February 2002
	DOCKET NUMBER:   AR2001059838

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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 he be cleared of all debt associated with Report of Survey (ROS) 99-064 and the “overpayment” discovered in 1999.  He also requests a signed letter from an appropriate officer-in-charge stating that the collection action was in error and that he has been cleared of all indebtedness to the United States Army, the North Carolina Army National Guard, the United States Treasury, and the Defense Finance and Accounting Service (DFAS) with regard to this debt.  He also requests that this alleged debt be removed from his credit history on file with three major credit-reporting agencies (Experian, Equifax, and Trans Union).

3.  The applicant states, in effect, that he does not owe a debt to the United States Government and that he no longer has in his possession the hand receipts that would have proven that he had relinquished the equipment to the proper authorities at Fort Benning, Georgia.  He also states that he was unaware that he needed to keep those receipts to prove his innocence at a later date.

4.  In support of his application, the applicant submitted a letter dated 2 July 2001 and eight groups of supporting documents.  It is noted that the applicant did not provided a complete copy of the subject ROS.

5.  The applicant’s military records show that he was a Private First Class in the North Carolina Army National Guard (ARNG) assigned to the 1st Battalion, 119th Infantry Regiment.  He was discharged from the ARNG on 31 July 1996.  

6.  On 25 August 1998, the applicant’s clothing records were reviewed and he was found to be missing several items of personal clothing and organizational clothing and individual equipment (OCIE).  On 10 September 1998, the subject ROS was initiated. Following an investigation which was concluded on 19 June 1999, it was determined that the applicant had failed to turn-in items of both personal clothing and OCIE valued at $1,169.75.  Although the findings and recommendation portion of the ROS are not available, it appears that the applicant was charged the full amount of the loss ($1,169.75) and that the proper depreciation was not applied (10% for OCIE and 25% for personal clothing).

7.  On 16 June 1999, the applicant returned a portion of the missing items.  It was noted on DA Form 2062 (Hand Receipt/Annex Number) that the applicant had stated he had forgotten that he still had those items he turned-in.  The value of the turned-in items was $693.10.

8.  The DFAS decreased the applicant’s total indebtedness to $777.27 after being notified by the United States Property and Fiscal Office – North Carolina that $693.10 worth of property had been recovered.  This new indebtedness total consisted of two separate amounts:  the first was $555.85 for the ROS debt and the second was for $221.42 for an overpayment.  Interest, penalties, and administrative fees totaling $146.68 increased the debt balance to $923.95.  DFAS processed three payments from the Department of Treasury Offset Program totaling $1,142.60 and refunded $218.65 to the applicant on 4 May 2001.  DFAS informed the applicant through his congressman that he could apply to the Army Board for Correction of Military Records if he felt that the ROS debt was still incorrect.  On 2 July 2001, the applicant applied to the ABCMR.

9.  In the processing of this case, an advisory opinion was requested from the United States Army Logistics Integration Agency (USALIA).  The USALIA noted that the case was incomplete (the applicant did not provide a complete copy of the ROS) and normally would have been returned without action.  However, the USALIA noted the National Guard’s egregious delay of more than 2 years in initiating the ROS and recommended that the financial liability for the ROS be reversed and that all monies collected be returned to the applicant.

10.  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. It also provides that an ARNG ROS must be initiated not later than 45 days after the date of discovery of a discrepancy, and must be completed within 150 days.

11.  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 ROS was not initiated or completed in a timely manner.  The applicant’s personal clothing and OCIE records should have been inventoried immediately upon the applicant’s discharge on 31 July 1996 and a ROS initiated not later than 14 September 1996 and completed not later than 28 December 1996.  By waiting more than 2 years to initiate the ROS, the applicant’s former unit placed an undue burden upon the applicant to refute the findings of the ROS Survey Officer.  This denied the applicant of his due process rights.

2.  The ROS did not apply depreciation against the items allegedly lost by the applicant.  Army Regulation 735-5, Appendix B, states that OCIE property shall be depreciated 10% and personal clothing shall be depreciated 25%.  Applying the proper depreciation would have made the total charged $1021.42 vice the $1,169.75 amount that was actually charged.

3.  The advisory opinion rendered by the USALIA found the delay in initiating and completing the ROS unreasonable and unacceptable.  Although a complete copy of the ROS was not provided, the USALIA, nonetheless, recommended that the applicant be relieved of all financial liability and that all monies collected from him by the subject ROS be refunded.

4.  The Board finds that the applicant was deprived of his due process rights by the inordinate delay in initiating and processing the subject ROS.  Although it is obvious that the applicant did not properly out-process from his unit and make a complete turn-in of all OCIE and personal property [based on his 16 June 1999 partial turn-in of OCIE], the delay made it impossible for the applicant to defend himself against the allegation that he failed to turn-in the remainder of the property upon his separation.

5.  The Board finds that the applicant’s debt for overpayment of $221.42 is valid.  The Board notes that the applicant himself admits as much in a letter dated 2 July 2001 and attached to his application.

6.  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:

	a.  That the individual concerned is relieved of financial liability assessed against him by ROS Number 99-064 in the amount of $555.85, plus an additional amount of $146.68 in interest, penalties, and administrative fees, for a grand total of $702.53; and

b.  That all monies collected from him to satisfy the above debt be refunded.

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

3.  The applicant is advised to use a copy of the Board’s proceedings to inform the three major credit-reporting agencies that he was relieved of financial liability assessed against him by ROS Number 99-064 and that the imposition of that portion of his debt to the US Government was in error.

BOARD VOTE:  

__JNS___  ___BJE_  __JED __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_      _John N. Slone_____
		        CHAIRPERSON

INDEX

CASE ID	AR20010598380	
SUFFIX		
RECON		
DATE BOARDED	20020214	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	19960731	
DISCHARGE AUTHORITY	NGR 600-200, para 8-26f	
DISCHARGE REASON	Unable to train	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	128.1000	
2.		
3.		
4.		
5.		
6.