PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           16 April 2002                   
	DOCKET NUMBER:   AR2001064815

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		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 two Reports of Survey (ROS) be removed from her Official Military Personnel File (OMPF); that the two findings of financial liability against her be reversed and her indebtedness cancelled, and; that all moneys collected from her be refunded.

3.  The applicant states, in effect, that she was not afforded due process during the completion of the two ROS.  She was never properly notified and, therefore, denied the opportunity to review the ROS, obtain legal advice, or rebut the ROS findings.  She was also charged more than the maximum allowable dollar amount authorized by regulation.  She adds that a complaint she filed with the Army Inspector General’s (IG) Office confirmed her allegation of lack of due process.

4.  In support of her applicant, the applicant submitted:  a 2 September 2001 memorandum to this Board; a copy of a 10 July 2001 letter from the IG to her Representative-in-Congress; and ROS 87-99 and 89-99.

5.  The applicant’s military records show that she is a Captain, Ordnance Corps.  In October 1997, she reported for an assignment in Korea and command of a heavy maintenance company in the Division Support Command (DISCOM) of the 2nd Infantry Division.  She commanded her company until February 1999 when she was reassigned to Fort Sill, Oklahoma.

6.  During a 100 percent change-of-command inventory of unit property, serious shortages were discovered and, on 29 March 1999, the new commander initiated ROS #87-99 and ROS #89-99.  The first ROS was for $3,428.12 worth of installation property, and the second ROS was for $176,843.51 worth of organizational property.

7.  On 2 April 1999, the appointing authority for the two ROS directed that a surveying officer be appointed to investigate the reported losses.  The surveying officer was appointed on 12 April 1999 and concluded his investigation on 18 May 1999.  He found that the applicant was negligent in discharging her property accountability responsibilities, in that:  she did not sub-hand receipt all unit property and, when she did sub-hand receipt, she did not ensure that departing sub-hand receipt holders cleared their hand receipts; she didn’t maintain shortage annexes; she did not conduct mandatory 10 percent cyclical inventories; she did not conduct a 100 percent inventory following a destructive flood in August 1998 in which property was lost; and she did not participate in the 100 percent change-of-command inventory with her successor, as was her duty to do.  The surveying officer concluded that she did not create an atmosphere conducive to property accountability in her command.  He recommended that she be held liable for all identified losses on the two ROS.

8.  The Army IG, in a 10 July 2001 letter to the applicant’s Representative-in-Congress, stated that the applicant was not afforded due process in accordance with Army Regulation (AR) 735-5, Policies and Procedures for Property Accountability.  Specifically, she was not given the opportunity to inspect and copy records related to the two ROS, or to obtain legal advice; she was not afforded the opportunity to submit evidence or to make a statement; and, she was charged an amount greater than 1 month’s pay in violation of AR 735-5.  The IG investigation did determine that the approving authority for the two ROS did receive, consider, and reject a request for reconsideration from the applicant, and that this decision was forwarded to the 2nd Infantry Division DISCOM Commander for review.  However, the IG could not determine whether the applicant had been informed of this denial of her request for reconsideration.

9.  The applicant’s OMPF was reviewed; the subject ROS are not filed on her OMPF.

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 which states that the applicant was negligent in her duties as a company commander; that she did not follow prescribed policy in AR 735-5 for property accountability; that the applicant was, in fact, notified of the results of the two ROS, but that proper notification procedures were not followed; and that the applicant was improperly charged more than 1 month’s basic pay for the losses.  The opinion stated that the evidence clearly established the applicant’s responsibility for the losses, but recommended that all moneys in excess of 1 month’s pay be refunded.   The applicant was provided an opportunity to respond to the advisory opinion, but did not do so.

11.  Chapter 13 of AR 735-5 states that the Government may impose a finding of financial 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 financial 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 further states that, when two or more ROS are processed that involve the same incident, financial liability is limited to 1 month’s basic pay.

12.  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.  Command responsibility is the obligation of a commander to ensure that all Government property within his or her command is properly used and cared for, and that proper custody and safekeeping of Government property are provided.  It is evidenced by assignment to command at any level and includes:  ensuring the security of all property in the command; observing subordinates to ensure that their activities contribute to the proper custody, care, use, and safekeeping of all command property; enforcing all security, safety, and accounting requirements; and taking administrative or disciplinary measure when necessary.  Supervisory responsibility is the obligation of a supervisor to ensure that all Government property issued to, or used by, his or her subordinates is properly used and cared for, and that proper custody and safekeeping of the property are provided.  It is inherent in all supervisory positions and is not contingent upon signed receipts or responsibility statements.  Responsibilities include:  providing proper guidance and direction; enforcing all security, safety, and accounting requirements; and maintaining a supervisory climate that will facilitate and ensure the proper care and use of Government property.  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.  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.

13.  AR 735-5 provides for the systematic processing of all ROS, from initiation, to investigation, adjudication, notification, and collection.  Whenever financial liability is recommended against an individual, the surveying officer will notify the individual by memorandum of his or her rights to inspect and copy pertinent records, obtain legal advice, and submit a statement and other evidence in rebuttal of the surveying officer’s recommendation.  When the approving authority approves the surveying officer’s recommendation to hold an individual financially liable, the individual will be notified once again of his or her rights to inspect and copy pertinent records, obtain legal advice, and submit a request for reconsideration of the approving authority’s decision to assess financial liability.

CONCLUSIONS:

1.  The two subject ROS are not filed on the applicant’s OMPF.

2.  The ROS investigation was thorough and revealed that the applicant failed in her command responsibilities in the areas of supply discipline and property accountability.  Although required to ensure sub-hand receipting of all unit property, she did not do so.  Likewise, she did not perform required periodic 10 percent inventories of all unit property under her control, nor did she take any action to ensure that departing unit members returned Government property issued to them.  Finally, she did not even participate in her own change-of-command inventory, even though she was required to do so.  In short, the applicant established a lax climate of supply discipline that was the proximate cause of loss of accountability.

3.  The two subject ROS were properly initiated, investigated, and adjudicated; however, because she had been reassigned from Korea to Fort Sill, the applicant apparently was not properly notified of the surveying officer’s recommendation to hold her financially liable for losses on both ROS.  Even though there is a copy of an Eighth Army Form (EA Form 503-R-E) showing that a postal clerk mailed the two ROS on 20 May 1999 using certified, return receipt mail, there is no record that the applicant received them or was afforded the opportunity to rebut the surveying officer’s findings and recommendation.

4.  The Army IG letter to the applicant’s Representative-in-Congress indicates that the applicant did submit a request for reconsideration to the ROS approving authority and that the request was considered and denied.  This indicates that she was informed of the outcome of the two ROS and was afforded the opportunity to appeal the decision to hold her financially liable.  The Eighth Army advisory opinion also indicates that the applicant did receive tardy notification of the decision to hold her financially liable.  This is supported by the fact that the applicant has submitted an application to this Board further proving that she did receive notification of her appellate rights and, in fact, has exercised those rights.

5.  In reviewing all of the documentation presented in this case, the Board has determined that the applicant was ineffectual as a company commander in safeguarding unit property under her control.  Her lack of concern for property accountability bordered on gross negligence and was the proximate cause of the reported losses of accountability.  Although proper notification procedures were not followed, the Board believes that the applicant did ultimately receive a fair hearing of the facts and of her request to be relieved of financial liability.  The Board does, however, concur with the Army IG and the Eighth Army advisory opinion that the applicant was overcharged for the losses.

6.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records, but only as indicated below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by;

	a.  Correcting ROS 89-99 to show that it is cross referenced to ROS 87-99 and by indicating that the recommended amount charged against the individual concerned is $0.00, and the actual amount charged against her is $0.00, and;

	b.  By limiting the liability of the individual concerned to one month’s basic pay and refunding to her all moneys collected from her in excess of $3,673.80 (her basic pay at the time) as a result of the findings of financial liability arising out of the two subject ROS.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_INW____  __MMD__  __JTM_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   Irene N. Wheelwright_
		        CHAIRPERSON

INDEX

CASE ID	AR2001064815	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020416	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	116.0000	
2.		
3.		
4.		
5.		
6.