PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           25 July 2000
	DOCKET NUMBER:   AR1999030469

	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:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 Report of Survey (ROS) finding of financial liability in the amount of $2,530.51 be set aside and that all monies collected be returned to him.

3.  The applicant states, in effect, that he was not negligent; that his due process rights were violated in the processing of ROS (#23-97); that the ROS was processed outside of his chain of command; that the temporary hand receipt on which he assumed accountability for the property had expired and was never renewed; and that he was not notified in a timely manner that he was being considered for an assessment of financial liability.

4.  The applicant’s military records show that he is a retired master sergeant.  In 1996, he was the Food Service Advisor for the 1st Brigade, 2nd Infantry Division, Republic of Korea.  A subordinate unit, 2/9 Infantry Battalion, had a surplus ice cube maker and steam cooker in its dining facility and another subordinate unit, 2/72 Armor Battalion, needed this equipment in its dining facility.  The applicant effected a transfer between the two unit dining facilities and signed a DA Form 3161, Request for Issue/Turn-in, as a temporary hand receipt when he physically moved the items on 16 January 1996.  Later in 1996, the applicant left Korea for an assignment with Headquarters and Headquarters Company (HHC), III Corps Artillery, Fort Sill, Oklahoma [Note: III Corps Headquarters is located at Fort Hood, Texas].

5.  During the period 17-21 March 1997, 2/9 Infantry Battalion conducted a change of command inventory.  Numerous items of dining facility equipment were determined to be missing, including the subject ice cube maker (value not discernable from the ROS paperwork provided) and steam cooker (valued at $8,503.43).  On 10 April 1997, an ROS was initiated and the investigation phase was completed on 25 June 1997.  It found that the applicant had signed a temporary hand receipt for the two items on 16 January 1996, had direct responsibility for the equipment, and was negligent in safeguarding it.  This negligence was deemed the proximate cause of the loss.  On 1 July 1997, a letter was forwarded to the applicant at the “III Corps G4 Mess, Fort Hood,” stating that he was being recommended for financial liability as a result of the ROS.  The letter was never delivered and the ROS officer prepared a memorandum on 15 August 1997 stating that the applicant did not respond to the letter of notification.

6.  On 27 August 1997, a legal review found the ROS sufficient to hold the applicant financially liable for the loss of the ice cube maker and steam cooker.  The 1st Brigade commander approved the ROS on the same date.  A letter was sent to the applicant notifying him that he was being held financially liable for the 

loss of equipment; it was addressed to him at “HHC, 2/9 Infantry” and he never received it.  On 21 October 1997, the Defense Finance and Accounting Service was notified and, on 31 December 1997, deductions for 1 month’s pay ($2,530.51) were initiated against the applicant’s military pay.

7.  The applicant sent a rebuttal to the approving authority in Korea on 3 February 1998 and requested a complete copy of the ROS on 7 March 1998.  On 16 April 1998, he requested reconsideration of the decision to hold him financially liable.  Although not a matter of record, both requests were denied.  In August 1998, the ice cube maker was located in the 2/72 Armor Battalion dining facility.

8.  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 (in excess of $8,503.43), whichever is the lesser amount.  The regulation also specifies that an ROS will be processed within 75 calendar days of the incident of loss, damage, or destruction.  Further, paragraph 13-38a requires the approving authority to notify the individual being charged when financial liability is approved and inform his of his rights.

9.  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.  Direct responsibility is the obligation of a person to ensure that all Government property for which he or she has receipted for, is properly used and cared for, and that proper custody and safekeeping are provided.  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.

10.  In the processing of this case, an advisory opinion was obtained from the Office of the Assistant Chief of Staff, G4, Headquarters, Eighth US Army, Korea, which concurs in the findings of the ROS and recommends that the applicant’s request be denied.  The applicant was provided a copy of the advisory opinion and provided a rebuttal.

CONCLUSIONS:

1.  The applicant assisted in the transfer of dining facility equipment between 
2/9 Infantry Battalion and 2/72 Armor Battalion, subordinate units of the 
1st Brigade, 2nd Infantry Division.  In so doing, he signed a temporary hand receipt assuming responsibility for the equipment during transit from one location to the other.  Once the transfer was accomplished, the losing dining facility should have permanently transferred the property to the gaining dining facility.  This was not done.

2.  The ROS should have taken until no later than 3 June 1997 to complete, yet it was not completed until 27 August 1997 and because the applicant’s proper forwarding address was not used, he did not learn of his liability assessment until money was withheld from his end-of-month pay in December 1997.  When he finally received a copy of the ROS in March 1998, more than two years had elapsed since the transfer of the equipment between the two battalions.  This inexcusable time lapse deprived the applicant of due process by making it impossible for him to defend himself against the accusations of negligence.

3.  Almost 3 years after the transfer of the equipment from 2/9 Infantry Battalion to 2/72 Armor Battalion, the ice maker was located in the 2/72 Armor dining facility.  The Board believes that the steam cooker was lost from 2/72 Armor dining facility sometime after its transfer on 16 January 1996 and before the ice maker was located on August 1998.  Had the 2/9 Infantry Battalion hand receipt holder maintained proper accountability on the temporary hand receipt to the applicant, a final transfer would have occurred in February 1996 and the steam cooker would have been deleted from 2/9 Infantry Battalion’s property account and added to 2/72 Armor Battalion’s property account.  The Board views this as the negligent act which was the proximate cause of the loss, not the applicant’s actions in not clearing his temporary hand receipt.

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 showing that the individual concerned is relieved of financial liability of $2,530.51 (1 month’s pay) assessed against him by Report of Survey #23-97 for the loss of a steam cooker, and that all monies collected from him be refunded.

BOARD VOTE:  

__tsk___  __sk_____  __jhk____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Ted S. Kanamine___
		        CHAIRPERSON

INDEX

CASE ID	AR1999030469	
SUFFIX		
RECON		
DATE BOARDED	20000725	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	128.0100	
2.		
3.		
4.		
5.		
6.