RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           4 March 2004 
	DOCKET NUMBER:   AR2003087987

	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:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Eric N. Anderson		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that the finding of financial liability in the amount of $2,482.92 by Report of Survey (ROS) Number XXXX-02 be set aside and that all monies collected be returned to him.  

2.  The applicant states that the ROS was the result of an automobile accident that he was involved in on 13 June 2002 while driving a GOV (government-owned vehicle) on Highway 75 en route to Marshall, Minnesota.

3.  The applicant states that the accident happened around mid afternoon and the weather was cloudy with intermittent rain.  He states that he was traveling around 50 miles per hour at the time of the accident and that the speed limit was 55 miles per hour.

4.  The applicant further indicates that he was in a passing zone and saw no approaching traffic when he pulled out to pass the slow moving semi-truck and trailer.  He states that he had passed 75 percent of the semi-truck when he saw the approaching minivan.  He states he applied the brakes and moved close to the semi-truck in an effort to avoid the accident; however, the minivan struck the government vehicle, scraping the side and damaging the mirror.

5.  The applicant further states that he was not negligent and that the facts as outlined by the surveying officer do not meet the burden of proof for negligence.  

6.  The applicant states that there were significant legal errors committed during the ROS investigation.  He also claims the surveying officer did not want to hear his side of the story and implies that her conclusions were biased.  He also claims that there were inconsistencies between the evidence and the conclusion, and that the approving authority did not provide him with a copy of the legal review required by paragraph 13-36, Army Regulation 735-5.

7.  The applicant provides a statement in his own behalf; a copy of the ROS and attachments; his ROS rebuttal; and his request for reconsideration.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show that he is an active duty staff sergeant, serving with the United States Army Defiance Recruiting Station, Cleveland Recruiting Battalion, 3rd Recruiting Brigade, Defiance, Ohio.

2.  The evidence of record shows that, at approximately 1315 hours on 13 June 2002, the applicant the driver of a GOV and was attempting to pass a semi-truck on a rain-soaked, two-lane highway when he was involved in a collision with a minivan.  The applicant had passed about 75 percent of the semi-truck when he saw the approaching minivan.  He could not complete the pass or get back behind the truck, so he moved as far to his right as the semi-truck would allow.  Unfortunately, he and the minivan sideswiped each other.

3.  Civilian police responded and completed an accident report.  It is unclear from the civilian police report whether the applicant was charged with an offense under the Minnesota Statutes, Chapter 169 (Traffic Regulations).

4.  On 21 June 2002, an ROS was initiated and a surveying officer was appointed on 28 June 2002.  The surveying officer completed her investigation on 7 August 2002.  She found that the damage done to the GOV was due to a lack of judgment by the applicant in trying to pass two semi-trucks in rainy weather on a two-lane road.  She indicated that the applicant began passing the semi-truck immediately in front of him and did not see the oncoming minivan because it was obscured by road spray coming from the second semi-truck which was further down the road in front of the truck he was passing.  Damage to the GOV was assessed at $4,371.74.  It was recommended that the applicant be held financially liable in the amount of $2, 482.92, one month's pay.

5.  On 12 August 2002, the applicant provided a rebuttal statement to the ROS findings and recommendation.  The ROS appointing authority rejected the applicant's rebuttal argument and concurred with the findings and recommendation of the surveying officer.  The approving authority approved the ROS on 4 September 2002.  On the same date, the applicant was notified of the finding as well as his rights.

6.  On 25 September 2002, the applicant requested reconsideration of the decision to assess financial liability and based his request on legal error.  On 15 October 2002, the Brigade Commander reviewed the applicant's request for reconsideration and declined to reverse the original decision of financial liability in the amount of $2, 482.92.  The applicant's request was forwarded as an appeal in accordance with paragraph 13-42b, Army Regulation 735-5.

7.  On 21 January 2003, the appellate authority denied the applicant's request for reconsideration and noted that the decision was final and no further request for reconsideration was allowed.  The applicant was advised that he had the right to request remission or cancellation of indebtedness under the provisions of Army 

Regulation 600-4 and that he could address the Army Board for Correction of Military Records if all other avenues of redress failed.  The appellate authority noted that the applicant's indebtedness would be pro-rated over a 12-month period.

8.  On 23 January 2003, the applicant was notified that his ROS was considered closed at the Brigade level and been processed to his servicing Finance and Accounting Office.  

9.  On 1 April 2003, the applicant submitted a petition to this Board for relief of financial liability imposed against him by ROS Number XXXX-02.

10.  In connection with processing this case, an advisory opinion was obtained from the U.S. Army Recruiting Command, Staff Judge Advocate's Office.  It states that the surveying officer's findings and recommendation, and the approving authority's actions in finding that the applicant violated a particular duty involving the care of the GOV are correct in law and fact.  It states that the applicant was negligent in attempting to pass because he could not see the lane of oncoming traffic ahead due of weather and road conditions.  It also states that it was clearly shown that the applicant was the proximate cause of the damage to the GOV, not the other driver.  In conclusion, it states that the ROS finding of liability is legally sufficient.

11.  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.

12.  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.  Personal responsibility is defined as the obligation of a person to exercise reasonable and prudent actions to properly use, care for, and safeguard all Government property in his or her possession.  It applies to all Government property issued for, acquired for, or converted to a person's exclusive use, with or without receipt.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, as the operator of the Government vehicle, had a personal responsibility to exercise reasonable and prudent actions to properly use, care for, and safeguard that vehicle.

2.  The applicant was negligent in passing a semi-truck in that he did not determine that he could safely make the pass when he pulled into the opposite lane of traffic.  His view of an oncoming vehicle was obscured by road spray from a second semi-truck in front of the truck he was attempting to pass.

3.  The evidence of record shows that the ROS was properly accomplished, that the evidence supported the findings, and that the findings and recommendation were legally sufficient.

4.  The Board concurs with the findings of the ROS that the applicant was negligent in the operation of the GOV and that his negligence was the proximate cause of the accident.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kan___  __klw___  __ena___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

			Kathleen A. Newman
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003087987	
SUFFIX		
RECON		
DATE BOARDED	20040304	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.1000	
2.		
3.		
4.		
5.		
6.