MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 July 2000
	DOCKET NUMBER:   AR1999032136

	I certify that hereinafter is recorded the record of consideration 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. Raymond J. Wagner 		Chairperson	
	Mr. John Saputo 		Member	
	Mr. Roger Able 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be relieved of all financial liability imposed against him by Reports of Survey (ROS) 30-98, 31-98, and 32-98 and that the sum of $2,394.30 (1 month’s basic pay), which was collected from him, be returned.

APPLICANT STATES:  That he was denied due process when he was denied the opportunity to request reconsideration of the finding of financial liability.  In support of his application, he submits:  a 7 October 1999 memorandum of appeal of financial liability; incomplete copies of the three ROS’s (no copy of the survey officer’s investigation, results, or findings) with separate memorandums notifying him of his financial liability and his rights; a copy of a document showing the amounts charged against him after an allowance for depreciation; a copy of his 18 March 1998 rebuttal memorandum; and copies of two memorandums, dated 18 May 1999 and 26 July 1999, from a Fort Knox, Kentucky, legal assistance attorney, seeking additional information on the ROS’s from the applicant’s old unit in Korea.

EVIDENCE OF RECORD:  The applicant's military records show:

He is a retired Sergeant First Class (E-7).  At the time the ROS’s were initiated, he was on active duty serving as a medical platoon sergeant in the 2nd Infantry Division in Korea.

On 19 January 1998, a tent fire destroyed $14,872.59 worth of government property from three separate property book accounts.  Three Reports of Survey were initiated and an investigation was conducted under the provisions of Army Regulation (AR) 15-6.  As a result of the AR 15-6 investigation, the applicant and his platoon leader were found jointly liable for the losses on 9 March 1998.  The applicant was notified on 11 March 1998 that he had been recommended for assessment of financial liability on all three Reports of Survey in the amounts of $2394.30, $996.59, and $52.29 respectively.

On 18 March 1998, the applicant rebutted the findings of financial liability on all three ROS’s.  In his rebuttal, he essentially argued that the amount of liability was incorrectly determined and that he should not be held liable for an amount greater than 1 month’s basic pay.  The total liability amount was later changed to reflect $2394.30, the equivalent of 1 month’s basic pay.

The applicant returned to the United States in June 1998 for an assignment at Fort Knox apparently believing that he had been relieved of financial liability as a result of his rebuttal.  In September 1998, the Defense Finance and Accounting Service (DFAS) began withholding $2394.30 from his pay.

The applicant contends that he was never informed that his rebuttal had been denied, nor was he offered the opportunity to request reconsideration of the decision to hold him financially liable for the losses.  He retired from active duty on 1 February 1999 and enlisted the help of the Fort Knox legal assistance officer in attempting to get his former command to provide him with proper notification that he had been assessed financial liability and of his right to request reconsideration of that decision.

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.  It also provides that when property listed on more than one property account becomes lost, damaged, or destroyed in the same incident, a separate ROS will be initiated for each property account affected.  The total amount of liability will still not exceed 1 month’s basic pay.

Chapter 13 further provides a soldier being recommended for assessment of financial liability has the right to inspect and copy Army records relating to the debt, to rebut a survey officer’s recommendation to hold him or her liable and to obtain free legal advice from the servicing legal assistance office, to request reconsideration of the assessment of financial liability based on legal error, to request remission or cancellation of the indebtedness, to request extension of the collection period, and to submit an application to the Army Board for Correction of Military Records.

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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1.  The applicant and his platoon leader had equipment stored in a tent that caught fire and burned, destroying $14,872.59 worth of government property.  Because the property was carried on three separate property accounts, three ROS’s were initiated to account for the losses.

2.  It is apparent that the applicant, after being recommended for financial liability as a result of an AR 15-6 investigation, was given the opportunity to review and copy all documents related to the reports of survey.  It is also apparent that he submitted a rebuttal to the survey officer’s recommendation.

3.  It is unknown whether the applicant was notified that his rebuttal had been denied and that he was being assessed financial liability; he contends that he was not notified.  However, it is known that the approving authority forwarded the ROS’s to DFAS and that 1 month’s basic pay was withheld from the applicant.

4.  Assuming that the applicant was not notified of the final assessment of financial liability, he would have been denied his due process right to request reconsideration of that assessment.  However, that request, by regulation, could only have been submitted based on the existence of legal error in the ROS process.  Since the applicant’s rebuttal dealt only with the fact that he was being overcharged and not with any legal issues such as findings of negligence and proximate cause, it may be assumed that he did not have any issues of legal error and, thus, no basis for requesting reconsideration.

5.  The survey officer corrected the issue of total liability raised in the applicant’s rebuttal.  The applicant was charged 1 month’s basic pay, the maximum allowable amount, for the $14,872.59 in losses.  This eliminated the applicant’s only point of contention.

6.  The applicant did not provide complete copies of the ROS’s; it is therefore impossible for this Board to determine whether the applicant was truly negligent and whether that negligence was the proximate cause of the fire which created the loss of property.  The Board presumes regularity.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __js_____  __ra_____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999032136	
SUFFIX		
RECON		
DATE BOARDED	20000711	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	128.1000	
2.		
3.		
4.		
5.		
6.