PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 November 2003
	DOCKET NUMBER:  AR2003084909 

	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 Wade		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		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, the findings of Report of Survey (ROS) Number XXX-01 be reversed; that he be relieved of all financial liability imposed by the subject ROS; and that all monies collected to satisfy the debt be refunded.

3.  The applicant states that he was found to be not liable by the ROS and Army Regulation (AR) 15-6 investigations.  He states that he was also found not liable by three legal reviews, but the approving authority still made him pay for the item based on his bias.  He states he has exhausted all of his resources and was denied open door access to the approving authority in regards to this.

4.  In support of his request, the applicant submits the ROS XXX-01, all statements, legal reviews, AR 15-6 findings, and financial collection paperwork.

5.  The applicant’s military records show that, at the time of the ROS, he was a Chief Warrant Officer Two (CW2) serving with 2nd Squadron, 17th Cavalry Regiment, 101st Aviation Brigade, 101st Airborne Division, Fort Campbell, Kentucky.

6.  On 3 April 2001, the unit maintenance shop reported that a borescope was damaged.  The applicant acknowledged that he had borrowed the borescope for use on a car engine at home and that it had become caught in the engine; however, he was able to remove it and it was still working when he returned it to the shop.  The borescope was inspected and found to have $5,980.00 in damages.

7.  On 20 April 2001, a ROS was initiated.  On 24 June 01, a Surveying Officer (SO) was appointed.  The SO determined that the Hand Receipt Holder (SGT “Y”) failed to maintain proper accountability for the borescope in that he did not require users to sign for the item before using it; therefore, the SO could not determine when, where, or by whom the borescope was damaged.  The SO found that the hand receipt holder did not provide proper custody and safekeeping of the borescope and recommended that he be held financially liable in an amount equal to 1 month's basic pay ($1, 701.00).

8.  On 24 July 2001, the ROS Appointing Authority concurred with the SO's findings, but also noted that the applicant would be given a letter of reprimand for misuse of government property (using the borescope for personal automotive maintenance).  On 22 August 2001, the Approving Authority rejected the SO’s findings and recommendations and, on 23 August 2001, directed additional investigation under the provisions of AR 15-6 [known as a 15-6 investigation].

9.  On 28 August 2001, a 15-6 investigation was initiated and recommended that the applicant be counseled and given the task of briefing the squadron on the guidelines by which Department of Defense property can be used for other than official purposes.

10.  On 11 September 2001, an amendment to Block 26 (Findings and Recommendations) of ROS XXX-01 found that the applicant was negligent in using government property for personal use and not in keeping with its intended purpose.  

11.  On 13 November 2001, the Approving Authority stated that, after thoroughly reviewing all of the statements, documentations, and the findings and recommendations of the SO, he had reached a decision contrary to the recommendation of the SO.  The SO recommended no financial liability for any of the individuals interviewed; however, the Approving Authority found sufficient evidence to hold both the applicant and SGT “Y” financially liable.  On the same date, the applicant was notified of the Approving Authority’s decision and advised of his rights.

12.  On 6 December 2001, the applicant submitted a rebuttal of the Approving Authority’s findings and recommendations.  He requested that he not be held liable for the damage investigated in the ROS.  He stated that the Approving Authority’s findings were not legally sufficient because they failed to clearly show responsibility, negligence, or proximate cause.

13.  On 9 January 2002, the Approving Authority found that the applicant’s rebuttal provided no new evidence to affect a reversal of his initial decision to recommend financial liability.

14.  On 28 January 2002, the Administrative Law Attorney found the ROS legally insufficient to hold both the applicant and SGT “Y” jointly financially liable.  The attorney recommended that the Approving Authority resolve contradictory statements and explain why he refutes certain self-serving witness statements while confirming other self-serving statements.

15.  On 1 February 2002, the applicant was notified that financial liability had been assessed against him in the amount of $2, 950.00 for the damage of government property investigated under ROS Number XXX-01.

16.  On 20 February 2002, the Approving Authority approved the ROS XXX-01.  He directed that both the applicant and SGT “Y” be held financially liable and that each incur financial liability in the amount of 1 month’s basic pay.  The applicant’s financial liability was $2, 950.00.

17.  On 3 April 2002, the applicant asked the Approving Authority to reconsider his findings and recommendations in the ROS because they lacked legal justification to hold him financially liable for the damage of the borescope camera.

18.  On 28 May 2002, the Administrative Law Attorney stated that he had reviewed the applicant’s request for reconsideration and found that it failed to present any new evidence.  Additionally, he stated that the ROS was still legally insufficient for the same reasons stated in the original review.

19.  On 5 August 2002, the applicant was advised that his request for reconsideration had been denied.

20.  In the processing of this case, an advisory opinion was requested from the United States Army Logistics Integration Agency (USALIA).  The USALIA’s Supply Maintenance and Transformation (SMT) Division staff noted that the applicant’s appeal was well supported by the Survey Officer and the two Administrative Law Attorneys, as well as several statements that led one to believe that the applicant was not culpable or the approximate cause of the damage to the borescope.  The SMT Division staff stated that, in their opinion, it appeared that the Approving Authority was biased in his actions by disregarding the recommendations of the Survey Officer and disallowing the opinions of the Administrative Law Attorneys, and discounting statements from several individuals in order to support his action to hold the respondent liable.  It was noted that there was insufficient evidence to support the Approving Authority’s financial liability decision; however, the issuance of a reprimand should have been the punishment given to the respondent for the improper use of government property.  The SMT Division staff stated that it was their opinion and recommendation that the financial liability charges against the applicant for the ROS be reversed based on the evidence presented and that all monies collected be returned to the applicant.

21.  On 30 April 2003, the applicant was provided a copy of the advisory opinion for possible comments and rebuttal.  On 12 May 2003, the applicant concurred with the advisory opinion.

22.  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. 

23.  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.  Willful misconduct is defined as any intentionally wrongful or unlawful act dealing with the property concerned.  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.

CONCLUSIONS:

1.  The Board noted the SO found that the applicant should not be held financially liable for damages to the borescope camera in the ROS.

2.  The Board also noted that two Administrative Law Attorneys found the ROS legally insufficient to hold the applicant financially liable.

3. The Board further noted that the advisory opinion rendered by the USALIA, SMT Division, stated that it appeared the Approving Authority was biased in his actions by disregarding the recommendations of the Survey Officer and disallowing the opinions of the Administrative Law Attorneys, and discounting statements from several individuals in order to support his action to hold the applicant liable.  The SMT Division recommended that the financial liability charges against the applicant for the ROS be reversed based on the evidence presented and that all monies collected be returned to the applicant.

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 by removing the finding of financial liability assessed against the individual concerned by ROS Number XXX-01 in the amount of $2, 950.00 and refunding to him all monies collected to satisfy that now invalid debt.

BOARD VOTE:  

__jns___  __mdm___  __bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003084909	
SUFFIX		
RECON		
DATE BOARDED	20031118	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.1000	
2.		
3.		
4.		
5.		
6.