PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           15 November 2001
	DOCKET NUMBER:   AR2001059953

	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	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Karen A. Heinz		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 the finding of pecuniary liability in the amount of $631.50, imposed by Report of Survey (ROS) 33-00, be reversed and that any monies previously collected be refunded to him.

3.  The applicant states that there was no evidence of neglect on his part; that he was issued the equipment in the field, at night, under extremely stressful conditions; that he is unsure whether all of the equipment was on hand when he signed for it.

4.  The applicant’s military records show that he is a staff sergeant (SSG/E-6).  At the time of the loss of equipment, he was assigned to Company B, 8th Engineer Battalion, 1st Cavalry Division, Fort Hood, Texas.  On 6 April 2000, his unit was participating in a field exercise and the applicant and his platoon were constructing obstacles.  At approximately 2130 hours, he was called from the construction site to the company command post (CP) to pick up rations and MILES (Multiple Integrated Laser Engagement Simulation) gear.  The items were sitting on the ground beside a vehicle.  The applicant signed a hand receipt, loaded the equipment onto his vehicle, and went back to his platoon's work site.  When he got back to the work site, he issued the MILES gear to his men.  When the field exercise ended, the MILES gear was collected and the applicant was told that he was missing three items valued at $631.50.

5.  The subject ROS was initiated and the applicant explained that he and his platoon had been very busy; that he had been called to the company CP to pick up food and equipment for his men; that it was late at night and very dark and he conducted a hasty inventory, loaded the equipment, signed the hand receipt, and returned to his platoon.  He stated that he returned all equipment he was issued and did not believe that he had been issued the missing equipment.  The ROS found him negligent in caring for the equipment and assessed financial liability for the loss.

6.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff for Logistics (DCSLOG), Headquarters, US Army Forces Command, Fort McPherson, Georgia.   It states that the applicant should be relieved of financial liability for the loss of MILES gear.  The rationale is that neither the applicant, nor his driver saw the missing gear when it was allegedly issued.  Also, the gear was issued under less than ideal circumstances, that is in a field environment, in the middle of the night, during a stressful period of exercise play.  Finally, the applicant was not negligent in his handling of the gear.  The DCSLOG opinion goes on to speculate that the equipment was missing before it was ever issued to the applicant.  The applicant was provided an opportunity to respond to the advisory opinion and concurred with it.

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 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.

CONCLUSIONS:

1.  The applicant was an engineer platoon sergeant participating in a stressful field exercise.  He and his platoon were under pressure to complete the construction of obstacles needed for the field exercise.  At 2130 hours, he was summoned to the company CP to receipt for supplies and equipment.  When he arrived, there was a pile of equipment and supplies stacked on the ground beside a vehicle.  He was required to sign a hand receipt, then he conducted a hasty inventory and loaded the equipment and returned to his platoon.

2.  When he arrived at his platoon's work site, he distributed the equipment, to include the MILES gear.  He was not negligent in his handling of the gear and in his distribution of it.  When the exercise ended, he collected the gear from the soldiers to whom it was issued.  At turn-in, he was told that he was missing three items.

3.  The DCSLOG advisory opinion, citing the conditions under which the gear was issued to the applicant, and opining that the gear was probably not present at issue, recommended relieving the applicant of financial liability.  The opinion stated that the applicant was not negligent in his handling of the gear.

4.  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: 

a.  By reversing the finding of pecuniary liability imposed against the individual concerned by ROS 33-00; and

b.  By refunding to the individual concerned any monies previously collected.

BOARD VOTE:  

__INW___  ___SK__  __KAH__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059953	
SUFFIX		
RECON		
DATE BOARDED	20011115	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	128.10	
2.		
3.		
4.		
5.		
6.