PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           13 June 2000    
	DOCKET NUMBER:   AR1999030776

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern 		Member	
	Ms. Barbara J. 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, in effect, “refund” of $1460.20 in monies collected from his pay as the result of a finding of responsibility assessed by a report of survey (ROS), later amended to read $3,014.70.  

3.  The applicant states, in essence, that he is not properly titled on the ROS (ROS 31-98, HHC, 44th Engineer Battalion, Camp Howze, Republic of Korea);  that he was never contacted by the ROS officer (ROSO) regarding the ROS, although his former command knew where he was;  that when he was relieved of command by his battalion and brigade commanders, and denied the opportunity to return to his unit, these commanders should have been aware of the consequences in reference to property accountability;  that the finding that many of the missing items were barracks property is wrong because, in fact, it was dining facility property such as grills, industrial-sized refrigerators, stoves, toasters, and other items generally used for food preparation/storage;  that he used poor judgement at the time of the turn-in of property in October 1997 by not keeping proper accountability, when, in fact the property was properly turned in by his executive officer, but that his supply sergeant was on leave and many of the items left over were old and obsolete and he was refused turn-in;  and the finding that he was negligent is not true, rather the ROSO failed to look at turn-in documents, or sub-hand receipts since all property was properly hand-receipted. He also notes that no one in his former command in Korea, to include the finance office could find the ROS when he subsequently inquired.  Essentially, no one can determine if the ROS was ever rescinded by his former command and there is no basis for the finance office to withhold (make deductions) from his pay.  He submits a copy of an appeal of the ROS to the commander of his Engineer Brigade in Korea appealing the ROS on 29 October 1998.  No response to this appeal appears to have been received by the applicant.  

4.  The applicant’s military records show that he was appointed and commissioned as a second lieutenant, Regular Army, Corps of Engineers, from the US Military Academy at West Point on 30 May 1992.  He was promoted to the rank of captain on 1 June 1996.  He was assigned to Korea in October 1996, first as an assistant battalion operations officer and in June 1997, he assumed duties as the commander of a headquarters and headquarters company of the same engineer battalion in Korea.  

5.  On or about 17 December 1997, the applicant was relieved from his duties as the commander of his unit and temporarily attached to another unit.  He claims that he was not permitted to return to his former unit area.  On 12 January 1998, a relief for cause Officer Evaluation Report (OER) was rendered.  His date of departure from Korea is not known, but he was next assigned to duties at a District Engineer Office at Rock Island, Illinois.  

6.  At the time of his relief from his duties as the company commander, an interim commander was appointed, but no joint inventory or other action was taken to transfer the unit property to the interim commander or some other designated individual.  On 12 January 1998, the applicant was relieved for cause and a new commander assumed command on that date.  Also on the same date, the former interim commander was appointed as a disinterested officer to inventory the unit property with the new commander.  This inventory was completed on 
10 February 1998.  Property with the value of $62,325.79 was declared missing.

7.  Based on this, the battalion commander directed that an investigation be conducted, which was accomplished by a third captain, who completed her investigation on 20 April 1998 as the ROSO.  She claimed that $23,542.32 in property was found during her investigation.  Five items were either still in use or the serial numbers were incorrectly recorded.  Other items were accounted for by number, but not necessarily serial number.  In summary then, she concluded that the items still missing totaled $38,783.13 in value, consisting of such equipment as a copier, day room equipment, bed linens and many kitchen/dining room (dining facility) pieces of equipment.  She recommended that  the applicant, the mess sergeant and the supply sergeant be held pecuniary liable for the loss due to negligence.  She had found that the applicant and the mess sergeant had primarily not properly managed and supervised the turn-in of dining room equipment between April and October 1997 in connection with the closing of an older dining facility and the opening of a new facility.  The supply sergeant had not properly handled accounting for linen in his supply room.  Liability in the amount of $2,363.40 was assessed against the mess sergeant for the lost dining facility equipment (which was supposedly 1 month’s base pay); $321.97 for the supply sergeant for missing linen; and $3247.50 for the applicant for the remainder of the missing equipment (supposedly 1 month’s base salary).  The adjusted loss was then calculated as $29,576.01, after deduction of 25 percent depreciation of the adjusted loss of $38,783.13.  Since $5,932.87 was to be collected from the applicant and the two other individuals, the net loss to the government was $23,643.14.  

8.  The ROS underwent a legal review, which found the ROS to be proper.  On 30 June 1998, the brigade commander approved the findings and recommendations of the ROSO.  There is no evidence of record that the applicant was ever interviewed or even contacted by the ROSO officer during her investigation.  Further, the DA Form 4697 (Department of the Army Report of Survey), in item 37, wherein the individual being charged for the loss is given an opportunity to review the findings and submit any matters in appeal is not signed. He claims to have received his copy of the ROS in the mail in September/
October 1998. 

9.  The applicant has submitted evidence that $1,460.20 had been collected from his pay as of July 1999, and most likely additional deductions have been made.  

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.

11.  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.  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.

12.  In connection with this appeal, the ROS was referred through United States Army Logistics Integration Agency in the Office of the Deputy Chief of Staff for Logistics, Department of the Army to the Eighth United States Army (Korea) for a review of the ROS.  The Assistant Chief of Staff, G4 (i.e., logistics), Eighth United States Army (Eighth Army) opined that the charge of liability against the applicant should be reversed.  He also should be reimbursed for all funds that have been deducted from his pay.  

13.  The G4 of the Eighth Army found that there is no evidence that the ROSO had even contacted the applicant, as the primary hand receipt holder during her investigation, or that he (the applicant) had been given the opportunity to respond to the ROS, with its 31 exhibits.  The command noted that there was no immediate inventory of the equipment in December 1997 when the applicant was detached from his command.  Such an inventory is required by Army Regulation 710-2, paragraph 1-10g7.  Further, the opinion noted that there had been a large turn in of equipment in October 1997, and it could well have been that the appropriate paper work had not been accomplished at the time.  The applicant was not permitted back in the unit area to follow up on such paper work.

14.  The opinion then notes that the ROS is not free of prejudice or bias.  The evidence supports that the applicant was not given the opportunity to obtain any evidence or statements in support of his claim, such as from the executive officer who conducted the turn in operation of the equipment in October.  In essence, the applicant was released from unit on l7 December 1997, and there was no intent for him to return.  The interim commander did not conduct an immediate inventory and it was not until the new commander came in January 1998 was an inventory conducted.  And then, the disinterested officer appointed to conduct the inventory with the incoming commander was the same officer who was the interim commander when the applicant was reassigned in December 1997.  He was not a disinterested officer.   

15.  The opinion further notes that the amount assessed against the applicant was in error; it should have been $3014.70 since his pay was not increased until May 1998.  Many of the statements in the ROS are self-serving, such as the supply sergeant, whose statements appear to have been written to excuse himself.  There are no other statements to confirm the supply sergeant’s claims.  Additionally, there is no evidence that the applicant violated his duties as a commander or the primary hand receipt holder.  In essence, the G4, Eighth Army found that the findings of the ROSO were not supported by other evidence or statements of record with her report.    

16.  Finally, the opinion concludes that no proximate cause had been established in this case.  Just because the applicant was the commander did not establish proximate cause.  Assumptions and surmises are made, but are not supported by fact.  The nature of the equipment was such that accountability most likely was lost on paper, but that the equipment was actually turned in as directed in October 1997.  Dining facility equipment and furnishings as cited in the ROS are not generally pilferable or highly desirable for resale on the local economy.   

17.  The above opinion was referred to the applicant who concurred in the findings  and recommendations in the opinion.

CONCLUSIONS:

1.  The applicant was the primary hand receipt holder in his unit and responsible for supply operations within his unit.  However, he was suddenly removed from his duties, and was not permitted to return to his unit.

2.  Evidence of record shows that the interim commander did not attempt to secure the property or inventory it at the time he took over; in fact, he later served as a “disinterested” officer when the new commander took over the unit which was almost a month after the applicant was relieved of his duties.

3.  There is no evidence that the applicant was ever brought into the investigative process.  The ROSO did not refer any matters to him, he was not given the opportunity to see or rebut the ROS before it was approved and he was only made aware of the findings when he received a mailed copy of the ROS.  
4.  The ROS is flawed in that no proximate cause has been established to hold the applicant liable.  Even then, the amount of monies to be withheld would have been in error, in that the amount assessed was after a pay raise, not the pay at the time of the “loss”.  The equipment reported as missing most likely was turned into property disposal in Korea, but the accounting procedures were lax.  Even then, the applicant was not permitted to be involved in an attempts to account for the equipment.

5.  Therefore, the Board concurs in the recommendation of the G4, Eighth Army, that the applicant should be relieved of liability for the lost equipment and any monies collected be returned to him.  

6.  In view of the foregoing, it is appropriate and just that the applicant’s records 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 the $3247.50 in financial liability assessed against him by ROS 31-98 (44th Engineer Battalion, Korea), approved on 30 June 1998, and that all monies collected from him to satisfy this assessment be refunded to him.  

BOARD VOTE:  

__eb____  __jhk___  __bje____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Elizabeth Buchanon__
		        CHAIRPERSON

INDEX

CASE ID	AR1999030776	
SUFFIX		
RECON		
DATE BOARDED	20000613	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	128.10	
2.		
3.		
4.		
5.		
6.