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Reports of Survey and Line of DutyDeterminations N/A

6. AUTHOR(S)

Administrative and Civil Law Division,Ti AG SA

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The Judge Advocate General's School, ArmyCharlottesville, VA 22903-1781 JA 231(92)

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This is a programmed instructional text covering accounting for governmentproperty and the Army's line of duty system..

14. SUBJECT TERMSISNUBROPAEReport of Survey, Liability, Line of Duty System, Investigation8Procedures, Cash Collection Voucher 6PKC I

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The contents of this publication are not copyrighted. They may bereprinted freely. The citation is as follows: The Judge AdvocateGeneral's School, U.S. Army, JA 231, Reports of Survey and Line ofDuty Determinations [page number] September 1992.

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INTRODUCTION

Military status imposes on soldiers certainresponsibilities which have no immediate counterpartsin the civilian employment community. The first areain which these responsibilities come into play concernsthe soldier's handling of government property. Thesecond area concerns the soldier's responsibility toremain physically fit to perform military duties. Aviolation of the responsibility of properly handlinggovernment property may result in the soldier having tocompensate the government for a portion or all of anyloss or damage. A violation of the responsibility toremain fit for military duties may result in thesoldier's being denied certain benefits to which hewould normally be entitled in cases of physicalincapacitation or disability. Note that theseresponsibilities relating to the handling of governmentproperty are also applicable to civilian employees ofthe Department of the Army.

This programmed instructional text has beendeveloped to introduce you to these two areas. Part Iof the programmed text covers accounting for governmentproperty -- primarily the report of survey system.Part II pertains to the Army's line of duty system,which is utilized to determine a soldier's eligibilityfor benefits in cases of physical incapacitation ordisability.

This text will teach you by supplying small bitsof information and then requiring you to provideresponses to questions. You should answer eachquestion and then check it against the given answer.If your answer to a question is incorrect, restudy thematerial until you understand the correct answer.Answering the questions is important as it reinforcesyour understanding of the material. At the conclusionof each part of the text is a review problem whichhighlights the major points covered in that portion ofthe text.

This text is designed to introduce the reader tothe above subject areas. Every effort has been made toexplain the language of an Army regulation, statute orother reference source in a manner that isunderstandable to the inexperienced reader. Therefore,in solving actual questions and problems, the readershould refer not only to this text, but also to theapplicable Army regulation, or statute since the answermay involve precise interpretation of the exact wording

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of the Army regulation or other primary source. Also,changes may have occurred in the reference materials.

The words "he" and "his" when used in thispublication represent both the masculine and femininegenders unless otherwise specifically stated.

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REPORTS OF SURVEYAND

LINE OF DUTYDETERMINATIONS

TABLE OF CONTENTS

Pag~e

INTRODUCTION ............................................ i

TABLE OF CONTENTS ..................................... iii

PART I: ACCOUNTING FOR GOVERNMENT PROPERTY AND THE

REPORT OF SURVEY SYSTEM ................... 1"

Section A Introduction ......................... 3

Section B Report of Survey System ............ 14

Section C Standards for Determining FinancialLiability........................ 20

Section D Joint and Several Liability........28

Section E Reconsideration and Remission ofIndebtedness . ............................ 29

Section F Collection from Pay ................. 32

Section G Role of the Military Attorney ...... 36

Section H Application of Article 31, UCMJ .... 38

REVIEW PROBLEM .......... . ............ ........ ............. 39

REVIEW PROBLEM ANSWERS ............................... 40

PART II: LINE OF DUTY DETERMINATIONS ...................... 41

Section A Introduction to the Army's Lineof Duty System.................... 42

Section B Presumptions Governing Line ofDuty Determinations ............... 49

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Section C Definitions ........................ 55

Section D Line of Duty InvestigationProcedures ....................... 59

Section E Role of the Military Attorney ...... 62

REVIEW PROBLEM ........................................ 63

REVIEW PROBLEM ANSWERS ................................ 65

APPENDIX A Statement of Charges .................... A-i

APPENDIX B Cash Collection Voucher ................. B-I

APPENDIX C Report of Survey Form ................... C-i

APPENDIX D Authority to Collect .................... D-i

APPENDIX E Effect of NLD-NDOM ...................... E-I

APPENDIX F Effect of NLD-DOM ....................... F-i

APPENDIX G DA Form 2173, Statement of MedicalExamination and Duty Status ............. G-I

APPENDIX H DD Form 261, Report of Investigation,Line of Duty and Misconduct Status ...... H-i

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PART I

ACCOUNTING FOR GOVERNMENT PROPERTY AND THEREPORT OF SURVEY SYSTEM

Part I of this programmed text deals with theprocedures by which an Army member or civilian employeemay be held financially liable for lost, damaged, ordestroyed government property. This portion of theprogrammed text has three functions:

1. To summarize significant information containedin Army Regulation (AR) 735-5;

2. To highlight information contained in certainother Army publications and statutes; and

3. To acquaint Army judge advocates with thevarious roles they can expect to play with regard tothese procedures concerning financial liability.

After completing Part I of this text you will beable to:

1. Identify the primary Army regulation provisionsgoverning financial liability for lost or damagedgovernment property;

2. List the procedures for determining financialliability for lost or damaged government property;

3. State the standards for determining financialliability;

4. Explain the consequences of a finding offinancial liability and the types of relief available;and

5. Review actions recommending financial liabilityfor lost or damaged government property.

REFERENCES:

1. Unit Supply UPDATE (Issue No. 13, 31 January 1992),containing AR 735-5, Policies and Procedures forProperty Accountability, 31 January 1992.

2. FM 10-14-3, Surveying Officer's Guide, 30 December1981 (a good source listing more applicablereferences is the Appendix in FM 10-14-3).

3. King, Reports of Survey: A Practitioner's Guide,The Army Lawyer, June 1984 at 1.

4. King, Recent Report of Survey Developments, The ArmyLawyer, July 1985 at 11.

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SECTION A. INTRODUCTION

There is a vast amount of government property withinthe Army's supply channels under the control of or in thepossession of military members and civilian employees ofthe Army. The importance -- and difficulties -- ofaccounting for this property cannot be overemphasized.

The accountability problems can be put inperspective by a 1977 report' of the Inspector General,who conducted a survey of Army installations anddivisions. The report concluded that accountability hadbeen lost for about one percent of the property of theunits inspected. Extrapolating these figures to theentire active Army, the IG computed the lossstatistically to amount to approximately $118.5 million!

Both supply personnel and JAGC officers alike mustbe familiar with property accountability policies andprocedures. A primary reference in this area is AR 735-5.

The main purpose of AR 735-5 is to establish theaccounting procedures to be used when Army property islost, damaged, destroyed, or otherwise renderedunserviceable through causes other than fair wear andtear. AR 735-5 provides the procedures whereby Armycommanders and supply personnel can document in supplyrecords when property is no longer available for use.Also, AR 735-5 provides authorized methods by whichresponsible persons may be relieved from responsibilityfor lost, damaged, or destroyed property. Thirdly, AR735-5 sets forth Army policy on financial liability.

Members and employees of the Army are not absoluteinsurers of the condition of government propertyentrusted to their care. Instead, their liability forloss of or damage to government property is derived fromtheir negligent or otherwise wrongful conduct pertainingto its use or custody. The principal means for makingadministrative determinations as to whether such conducthas resulted in the loss of or damage to governmentproperty and whether the individual concerned will beheld financially liable is the "report of survey" system.

'Ltr to the Chief of Staff, from the Office of the InspectorGeneral, DAIG-IS, subject: Report of Audit Survey SpecialInspection of Management and Accountability of Army Material, dtd6 Oct 77.

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Keep in mind, though, that first and foremost, AR 735-5sets forth supply and accountability procedures to enableArmy personnel to balance the Army's books.

Although the JAGC officer's involvement is mostoften concerned with this third aspect of financialliability, it is important to keep a proper perspectiveon the primary purposes of AR 735-5.

ANSWER THE FOLLOWING QUESTIONS:

1. [True-False] CW2 True Count, a property bookofficer, discovers that a Jeep he is accountable for waslost in a recent field problem. He should follow theprocedures in AR 735-5 to document in his records .hatthe jeep is no longer actually present.

2. [True-False] A soldier is absolutely liable for lossof or damage to government property under his control orin his possession. Explain your answer.

[ANSWERS ON THE FOLLOWING PAGE]

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ANSWERS:

1. True. AR 735-5 prescribes the accounting proceduresto be used when DA property is lost, damaged ordestroyed.

2. False. Liability for loss of or damage togovernment property is based on negligence or willfulmisconduct.

Army policy is that some person must be responsibleat all times for the care and safekeeping of Armyproperty. This responsibility may be based on possessionof the property or the scope of the person's duty.

When Army property is lost, damaged or destroyed bycauses other than fair wear and tear, there are a numberof procedures available to obtain relief from propertyresponsibility. The procedure used in a particular casewill depend on the circumstances surrounding the loss ordamage and the type of property involved. Theseprocedures include:

1. Statement of Charges;

2. Cash Collection Voucher;

3. Report of Survey; and

4. Administrative investigation under AR 15-6.

5. Collateral investigations and reports used foraircraft accidents.

6. Adjustment by unit commanders for losses ofdurable handtools up to $100 per incident, if nonegligence is involved.

7. Abandonment order.

ANSWER THE FOLLOWING QUESTION:

Responsibility for the care and safekeeping of Armyproperty may be based on (a) ofthe property or the (b)

(ANSWERS ON THE FOLLOWING PAGE]

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ANSWERS: (a) possession(b) scope of the person's duty

Let's look a little more closely at each of thelisted procedures.

If a commissioned officer, warrant officer, enlistedsoldier, or civilian employee loses or damages governmentproperty and his unit commander or supervisor believesthat the loss or damage was a result of that individual'sneglect or misconduct, the unit commander or supervisormay prepare a statement of charges (DD Form 362) andsubmit it to the individual. Also, any individual whois responsible for property which is lost, damaged, ordestroyed because of fault or negligence may prepare astatement of charges listing the names of the personsconcerned. A statement of charges is used if liabilityis admitted and the charge does not exceed the monthlybasic pay of the person being charged. By signing astatement of charges, the individual authorizes thecollection of the amount of the charge from his pay.Appendix A contains an example of a properly preparedstatement of charges.

In addition to the statement of charges, anyindividual--offiuer, enlisted, or civilian--mayvoluntarily admit liability for lost or damagedgovernment property and offer to pay the value of theloss or damage in cash. In such cases, record of thepayment is made on a cash collection voucher (DDForm 1131). It differs from a statement of charges,which is a payroll deduction, in that a cash collectionvoucher is an immediate cash settlement. An example ofa properly prepared cash collection voucher is containedin Appendix B.

For both a statement of charges and a cashcollection voucher, the amount of liability is the fairmarket value of the item (up to one month's basic pay).If the fair market value cannot be determined, thendepreciation is allowed, based on the current price. Themethods of determining depreciation are explained in AR735-5, Appendix B.

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Restrictions on the use of a statement of chargesand cash collection voucher include:

a. They cannot be used when sensitive items (e.a.,narcotics, small arms, demolition material, etc.) arelost or destroyed, nor any other time the use of a reportof survey is mandatory (explained shortly).

b. Neither procedure can be used as a means toobtain items from the Government by merely acknowledgingliability and reimbursing the Army. With both proceduresthe individual must acknowledge that he will turn in allarticles later recovered and that he understands that theGovernment will retain title to the articles listed onthe form.

c. They cannot be used for losses or damagesexceeding one month's basic pay of the individual causingthe loss or damage.

d. No individual can be forced to use theseprocedures, but use of a report of survey is mandatorywhen they are declined.


1. A statement of charges may not be utilized if thecase involves (a) or if the value of thelost or damaged property exceeds (b)

2. (True-False] Neither a statement of charges nor acash collection voucher may be used when a soldierobjects to the imposition of the charge.


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ANSWERS:

1. (a) sensitive items(b) one month's basic pay of the individual

2. True. A statement of charges and a cash collectionvoucher may be used only when the individual voluntarilyconsents to their use.

Reports of survey are not required for propertylost, damaged, or destroyed due to an aircraft accidentwhich is being investigated under the provision of AR385-40. The collateral investigation may be used toadjust property records. This avoids the problem ofhaving two separate investigations.

Losses involving handtools have always been aproblem. In an effort to give commanders moreflexibility, unit level commanders are permitted toadjust losses of durable handtools up to $100 perincident if no negligence or misconduct is involved.Rules for the loss of organizational clothing may befound in AR 735-5, para. 14-4.

An abandonment order may be used when property isrequired to be abandoned in the course of combat, largescale field maneuvers involving simulated combatconditions, military advisor activities, or to meet othermilitary requirements. If the abandonment is approvedby proper authority, normally the installation ordivision commander, the abandonment order andauthorization may be used to adjust the propertyaccountability record.

An investigation conducted according to AR 15-6 maybe used instead of a report of survey. The differencebetween a report of survey and an AR 15-6 investigationis one of form rather than substance. All the rightsavailable with a report of survey are applicable to anAR 15-6 investigation. When used, the AR 15-6 report ofinvestigation is processed through the chain of commandlike the report of survey (see S B, infra).

A report of survey is an instrument for recordingthe circumstances concerning the loss, damage ordestruction of Army property. It serves as, or supports,a voucher for dropping the articles from the propertyrecords on which they are listed. It also serves to

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determine questions of responsibility (financial orotherwise) for the absence or condition of the articles.Appendix C contains a completed report of survey form.Take a few minutes to familiarize yourself with thereport of survey form (DA Form 4697).

One of the two - a report of survey or an AR 15-6investigation - must be prepared when:

a. A sensitive item is lost or destroyed. Notethat a report of survey or AR 15-6 investigation is notmandatory for damaged sensitive items.

b. Directed by higher authority.

c. Property loss is disclosed as a result of achange oi accountable officer's inventory (explainedshortly).

d. Damages or shortages in occupied governmentquarters (real property and furnishings combined) orgovernment furnishings in non-government quarters exceedsthe responsible person's monthly basic pay.

e. An inaividual admits liability, and the loss,damage, or destruction exceeds the individual's monthlybasic pay.

f. An individual refuses to admit liability bysigning a statement of charges or a cash collectionvoucher, or where authorized, replacing the item in-kind.

g. The total handling loss of a specific bulkpetroleum product is above the allowable loss for thatproduct, and the dollar value of the total loss isgreater than $500.00.


Captain Jones admits liability and agre, ; to pay for thedamage to government furnishings in non-governmentquarters he occupied. The amount of damage is $300. Areport of survey (is) (is not) required. Explain youranswer:

[ANSWER ON THE FOLLOWING PAGE]

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ANSWER: is not. Since Captain Jones is willing to admitliability, he may voluntarily pay since the damage togovernment furnishings in non-government quarters doesnot exceed his monthly basic pay.

Recall earlier that the term "accountable officer"was used. The accountable officer is the personofficially designated to maintain a formal set ofaccounting records of property or funds. The accountableofficer may or may not have physical possession of theproperty or funds. Included in this definition areproperty book officers. Hand-receipt holders are notincluded. One important ramification of being anaccountable officer is that in the event of loss ordamage to Army property, an accountable officer is liablefor the full amount of the loss or damage, whereasnormally a limitation of one month's basic pay applies(more on this later, in S C).

A frequently asked question is whether a companycommander is an accountable officer. In DAJA-AL1980/2722, TJAG opined that a commander does not becomean accountable officer within the meaning of AR 735-5solely by virtue of his assignment as a commander. Theopinion points out, however, that the nature of localcircumstances and procedures may result in thecommander's becoming an accountable officer, if a specialrelationship between the commander and the property wereestablished.

Note that in a "typical Army division" a companycommander will "sign" for the property in his unit, butthe company commander is a hand-receipt holder. Incontrast, the property book officer often will be awarrant officer assigned to Division Support Command(DISCOM) and he will maintain the property books for onebrigade and for one or more battalions in the division.

The issue raises the distinction between theconcepts of responsibility and accountability. Theseconcepts are explained in detail in AR 735-5. Quitesimply, accountability is the obligation of a person tokeep an accurate record of property, documents, or funds.It is imposed by law, lawful order, or regulation.Accountability is primarily concerned with keepingrecords. On the other hand, responsibility is theobligation of an individual for the proper custody, care,use, and safekeeping of government property. Any personmay incur responsibility for the care and custody ofgovernment property, even if he has not signed a receipt

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for it. This responsibility may be based on possessionof the property or the scope of the person's employmentor duty. In short, accountability involves the basicobligation of accounting for property, whereasresponsibility arises from possession of property or fromthe obligation of command or supervision of others whoare in possession of property.

An individual may have both accountability andresponsibility, or may have accountability withoutresponsibility or vice versa. For example, anaccountable officer who has issued property on a hand-receipt has accountability without responsibility. Theindividual so receiving the property has responsibilitywithout accountability.

And although DAJA-AL 1980/2722 (discussed above)holds that a commander does not become an accountableofficer solely by virtue of his assignment as acommander, a company commander is, by virtue of hisassignment, responsible for all the property of thecompany, regardless of whether or not he has signedreceipts for such property.

Understanding the difference between accountabilityand responsibility is necessary to properly apply theprinciples of AR 735-5.


(True-False] CPT Shortage, outgoing company commander andCPT Incoming, his replacement, conduct a joint change ofcommand inventory of the company property. Five bedsheets are missing. A report of survey is mandatory,since property loss is disclosed as a result of a changeof accountable officer's inventory.


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ANSWER: False. A company commander is not necessarilyan accountable officer.

* * * * * *

At this point, another term should be explainedsince it will be used throughout the text.

The term "financial liability" refers to thepersonal, joint, or statutory obligation to reimburse theU.S. Government for government property which has beenlost, damaged, or destroyed because of negligence ormisconduct. In other words, financial liability is adebt owed to the U.S. Government for the loss, damage,or destruction of U.S. Government property.

Keep in mind that the report of survey system isseparate from the disciplinary measures available to thecommander. The report of survey is not a form ofpunishment, nor has it been proven to be effective as adeterrent. Instead, the commander has a numbez ofdisciplinary and administrative measures to enforcesupply discipline and reduce the incidence of lost,damaged or destroyed government property. These measuresrange from an oral reprimand, or "chewing out," to anArticle 15 or court-martial under the Uniform Code ofMilitary Justice. Again, the key is that the report ofsurvey is a supply-oriented document; it is not intendedto be used as corrective action or punishment fornegligence or misconduct that may have contributed to theloss.


[True-False] After a soldier has been held notfinancially liable on a report of survey, a commander maytake action against a soldier under Article 15 for thesame incident.


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ANSWER: True. For example, disciplinary action may betaken for misconduct that was not the direct cause of theloss. Or, as a result of command inspection, it may bediscovered that a supply sergeant's stocks are $10,000short. Disciplinary action may be appropriate againstnot only the supply sergeant, but also supervisors andcommanders in the chain of command if investigationrevealed inadequate command supervision (i.e., requiredinventories had never been made or verified).

In short, a report of survey is a supply oraccounting instrument used by the Army to record thecircumstances covering the loss, damage, or destructionof government property.

A final introductory word -- you should be askingyourself at this point -- what authority allows the Armyto operate the report of survey system, particularlysince those employees held financially liable may losea month's basic pay or more? The answer is in thefollowing statutes:

i0 U.S.C. S 4835, Reports of survey.

(a) Under such regulations as the Secretary of theArmy may prescribe, any officer of the Army designatedby him may act upon reports of survey and voucherspertaining to loss, spoilage, unserviceability,unsuitability or destruction of or damage to property ofthe United States under the control of the Department ofthe Army.

(b) Action taken under subsection (a) is final,except that action holding a person financially liablefor loss, spoilage, destruction, or damage is not finaluntil approved by the Secretary or an officer of theArmy designated by him.

10 U.S.C. S 4832, Property accountability: regulations.

The Secretary of the Army may prescribe regulations forthe accounting for Army property and the fixing ofresponsibility for that property.


[True-False] A statutory basis exists for the Army'sreport of survey system.


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ANSWER: True.

* **** *

SECTION B. REPORT OF SURVEY SYSTEM

This section summarizes how the report of surveysystem operates and is designed to provide an "overview"of the process.

A report of survey is normally initiated by theprimary hand-receipt holder, or the individualaccountable for the property. When the hand receiptholder or accountable officer is not available, theperson with the most knowledge of the incident willserve as the initiator. She prepares a brief statement(entered in block 11 of DA Form 4697) describing theloss or damage and explaining how it occurred. Thisstatement is used by the approving authority todetermine whether he needs to appoint a surveyingofficer, assess financial liability without aninvestigation, or grant relief from responsibilitywithout taking additional action.

As discussed on page 8, a report of survey or AR15-6 investigation is mandatory in seven instances.

The initiator of the report of survey forwards itto the approving authority. Regardless of who initiatesthe report of survey, it will be processed through thechain of command of the individual responsible for theproperty at the time the incident occurred during theloss. The accountable officer retains one copy totemporarily support the entries in his property book orother property record. The approving authority, alieutenant colonel in command who will usually be thebattalion commander, reviews the report of survey todetermine the proper action to be taken. (NOTE:Approving authority can be retained at the Colonel levelor higher and a lieutenant colonel or GS/GM-13 can bedesignated appointing authority. Appointingauthorities, among other duties, appoint report of3urvey investigating officers; however, they do notapprove completed report of survey investigations.) Theapproving authority may decide there is enoughinformation in block 11 to make a decision withoutfurther investigation. This is known as a "shortsurvey." If the approving authority decides there isinsufficient evidence of negligence and that noindividual should be held liable for the loss, he mayorder relief from accountability and responsibility. If

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he decides there is sufficient evidence to hold anindividual financially liable for the loss or damage, hemay compute the charge and notify the individual of thecharge and any appeal rights. Or he may return thereport of survey to the person who initiated it, if theevidence presented is conflicting or not complete enoughfor a clear understanding of the circumstances. Anotheroption available to the approving authority is toappoint a surveying officer (or an investigating officerunder AR 15-6).

Although normally approving authority appointmentof a surveying officer is optional, a surveying officermust be appointed if:

(1) A person concerned should be charged withresponsibility for the loss or damage.

(2) The report of survey has been directed byhigher authority.

(3) Stockage is lost at certain storage depots.

As noted above, the approving authority mayrecommend liability without appointing a surveyingofficer if the evidence reflected on the report ofsurvey, DA Form 4697, clearly establishes negligence.This allows the commander to shorten the process byeliminating the surveying officer. It does noteliminate any rights for the individual for whomliability is recommended.


1. [True-False]. Under certain circumstances, theappointment of a surveying officer by the approvingauthority is mandatory.

2. The approving authority is normally aCommander.


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ANSWERS:

1. True. The approving authority must appoint asurveying officer in three specific instances.

2. Battalion

The surveying officer is normally a commissionedofficer or senior noncommissioned officer (AR 735-5,para. 13-28, provides the qualifications of a surveyingofficer). The surveying officer will be senior to theperson subject to financial liability except whenimpractical because of military exigencies. Heinvestigates to determine the facts surrounding the lossor damage of Army property and then submits findings asto how the loss or damage occurred and whether fault ornegligence was involved. If the survey officerdiscovers that the investigation requires examining theconduct of a person senior to him, the survey officerwill notify the approving authority. The approvingauthority will appoint a new survey officer or directthe investigation to continue if the change isimpractical. Whenever the approving authority does notappoint a senior survey officer he must document thatdecision as an exhibit to the survey. The surveyofficer also makes recommendations, based on hisfindings and the policies set forth in AR 735-5. Theinvestigation will be his primary duty.

If the surveying officer recommends an individualbe held financially liable, the surveying officer mustgive the individual seven calendar days to examine thereport of investigation before the surveying officersubmits it to the approving authority. If theindividual is not readily available, the surveyingofficer must mail to the individual a copy of thefindings, recommendations, and evidence for examinationand comment. It must be mailed certified or registeredmail. Before taking further action the surveyingofficer must wait 15 calendar days for a reply if theindividual is in the same country as the survey officer.If the individual and survey officer are in differentcountries allow 30 calendar days. The surveying officermust fully consider and attach any statement submittedby the individual. The individual may submit new oradded evidence in his defense. The evidence must beconsidered by the surveying officer as if it had beenavailable earlier. The surveying officer then notesthat the added evidence has been considered and, if hewishes to modify his original recommendations, the

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surveying officer will make amended recommendations.For reports of survey involving damage to governmenthousing, furnishings or equipment associated withgovernment housing, the surveying officer must explainwhether a finding of gross negligence has been made. Ifsuch a finding is made, the surveying officer must informthe soldier that he can be held liable for the fullamount of damage. In such cases, the surveying officermust also inform the soldier of his right to request thatthe approving authority waive in whole or in part theclaim for damage under Section 2775 of Title 10, UnitedStates Code. An example of the notification memorandummay be found at AR 735-5, Figure 13-12. The surveyingofficer has 30 days to act. This period may be extendedif further investigation is required or if the surveyingofficer is waiting for a reply from a soldier for whomfinancial liability is recommended.

Immediately upon determining that an individual willbe held liable, the surveying officer will inform thesoldier's Commander. If the soldier is being separatedor transferred, an appropriate statement concerning thereport of survey will be placed on the clearance documentto alert clearance personnel of the possibility of acollection action.


[True-False] A surveying officer submits both findingsand recc ,endations to the approving authority.


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ANSWER: True.

The surveying officer then returns the report ofsurvey to the approving authority, who reviews it. Theapproving authority may disagree with the surveyingofficer's recommendations. If she disagrees with thesurveying officer, she must enter a statement in item 34on the report of survey form justifying the rationaleupon which the decision was based. If financialliability is the new recommendation, like the surveyingofficer, the approving authority must allow theindividual the opportunity to respond (as explainedabove). Of course the approving authority may adopt thesurveying officer's recommendations as her own or returnthe report of survey to the surveying officer if furtherinvestigation is required. The approving authorityreviews the report of survey to ensure that it isaccurate and complete and takes final action "byauthority of the Secretary of the Army."

Where financial liability is recommended, a JAGCofficer (or civilian attorney) must review the findingsand opine as to the adequacy of the evidence and thepropriety of the findings and recommendations. Thisreview must occur before the approving authority'saction. Note that the approving authority hasconsiderable latitude in processing the report of survey.Note too that the approving authority may approve afinancial charge even if the surveying officer andreviewing judge advocate have recommended againstassessing financial liability. Of course, the approvingauthority's action must be based upon the availableevider-e.


1. If the approving authority makes a finding offinancial liability, contrary to the recommendation ofthe surveying officer or reviewing judge advocate,whatsteps must he take to protect the rights of theindividual concerned? Explain your answer:


18

ANSWERS:

1. If the approving authority makes a finding offinancial liability, he must notify the individualconcerned and allow him or her the opportunity to examinethe report of investigation. The approving authoritymust fully consider any response and attach it to thereport of survey. If new or added evidence is submitted,and the approving authority still recommends financialliability, the approving authority will note that theadded evidence has been considered (i.e., the approvingauthority takes the same action the surveying officerwould have taken if the surveying officer had originallymade a recommendation of financial liability). Theapproving authority must also reduce to writing hisrationale for assessing financial liability contrary tothe recommendations.

The approving authority must notify individualsbeing held financially liable on reports of survey ofthat fact. A sample notification memorandum may be foundat AR 735-5, Figuce 13-13. The purpose of this noticeis to ensure that the person concerned is aware of hisrights at this point. If the person being held liableis available, he signs and dates a copy of this noticeletter, acknowledging receipt. The date of receiptstarts the running of the 30 day period within which arequest for reconsideration must be filed (unless goodcause exists for greater delay). One copy of the reportof survey (for active Army personnel) is then sent to thefinance and accounting officer for collection action;another copy goes to the accountable officer to supporthis records (more on the Army's ability to collect in§ F, infra).

If the approving authority determines that anindividual for whom financial liability has beenrecommended by the surveying officer will not be heldliable, he must notify the individual. Notification maybe made by telephone or in person. If the individual isnot readily available, a certified letter will be used.

Finally, the individual may request reconsiderationof the report of survey or (for enlisted personnel only)submit a petition for remission or cancellation of thedebt. These procedures are explained in more detail inS E, infra.

AR 735-5 states that under normal circumstances,the total processing time will be no longer than 75

19

calendar days. Failure to comply with this processingtime requirement, however, does not invalidate the reportof survey or provide the person held liable a basis forrelief.

As noted above, the individual concerned is notifiedof the report of survey and is afforded the opportunityto respond during the investigation, and afterwards, theindividual may submit a request for reconsideration.


The (a) takes -1inal action on areport of survey "by authority of the (b)

'i

[ANSWERJ ON THE FOLLOWING PAGE]

20

ANSWERS: (a) approving authority(b) Secretary of the Army

*** ** *

SECTION C. STANDARDS FOR DETERMINING FINANCIAL LIABILITY

The basic guideline is set forth in AR 735-5 --financial liability will result when a person'snegligence or willful misconduct toward governmentproperty is the proximate cause of any loss, damage, ordestruction of such property. The standard, then, issimple negligence, since under the report of surveysystem, negligence is defined as an act or omission thata reasonable person would not commit under similarcircumstances. Willful misconduct means -anyintentionally wrongful or unlawful act dealing with theproperty concerned. Note that misconduct includeswrongful appropriation.

In each case, however, proximate cause must exist,which is defined as the cause that, in a natural andcontinuous sequence, unbroken by a new cause, producesthe loss or damage, and without which the loss or damagewould not have occurred. It is further defined as theprimary moving cause, or predominating cause, from whichthe injury follows as a natural, direct, and immediateconsequence, and without which it would not haveoccurred. As one might expect, the concept of proximatecause is not always clearly understood by surveyingofficers (and others), and a JAGC officer often will berequired to explain or interpret proximate cause in lightof a particular fact situation.


1. Financial liability will result when a person'snegligence or (a) toward governmentproperty is the (b) of any loss,damage, or destruction of such property.


21

ANSWERS:

1. (a) willful misconduct(b) proximate cause

This definition of proximate cause does notforeclose application of general legal principles aboutproximate cause. Resort to general legal principles andrecognized authorities such as the Restatement (2d) Tortsis appropriate. For example, report of survey problemsinvolving whether an intervening force is a supersedingcause raise considerations such as the fact that theintervention brought about a different kind of harm fromthat which otherwise would have resulted from the actor'snegligence, the fact that the consequences of anintervening force appear to be extraordinary, or the factthe intervening force operated independently of anysituation created by the actor's negligence, etc. Thepoint is that examining a source such as the Restatement(2d) Torts is invaluable in appropriate cases. Whenapplicable, these principles may be used to determinewhether negligence or willful misconduct is the proximatecause of a loss for purposes of AR 735-5.


[True-False] The definition of proximate cause in AR 735-5 precludes application of general legal principles aboutproximate cause.


22

ANSWER: False.

* * * * * *

AR 735-5, Appendix C, sets forth certain principlesor factors which help in deciding whether to imposefinancial liability. These factors are helpful insolving actual problems you may encounter. For example,the relationship of the person to the property is to beconsidered in determining whether an act or omissionconstitutes negligence.

In considering reports of survey, one usually thinksof a soldier wrecking a jeep, or a similar situationwhere Army property is physically damaged or destroyed.AR 735-5 makes it clear, however, that loss includes lossfrom government accountability. A person can be heldfinancially liable under AR 735-5 for the loss ofgovernment property when the loss from governmentaccountability is the proximate result of the person'snegligent act or omission.


1. The relationship of the individual to the property[does] [does not] determine the standard of negligence(i.e., gross or simple negligence) to be applied.

2. Staff Sergeant (SSG) Klink, a supply sergeant,issued 10 fans from his supply room, obtaining a hand-receipt for only six of the fans. During a laterinventory, the company commander asked SSG Klink toaccount for the fans. SSG Klink could account for onlythe six hand-receipted fans. An examination of thecompany area produced three of the four missing fans.Will SSG Klink most likely be held financially liablefor any of the fans? Explain your answer:


23

ANSWERS:

1. does not

2. SSG Klink will most likely be held liable for theloss of one fan. Loss includes loss from governmentaccountability. Unless unusual circumstances werepresent, SSG Klink was negligent in not utilizing a hand-receipt to maintain accountability for each fan, and theloss of accountability was the proximate result of hisnegligence. SSG Klink will not be held liable for theremaining three fans, since they can now be accounted foras a result of the physical inventory.

In addition to recommending financial liability,the surveying officer and approving authority mustdetermine the financial charge, as follows:

(1) If the property is economically repairable,determine the cost of repairs.

(2) For irreparably damaged property, determinethe value of the property immediately before the lossthrough appraisal and its fair market value after theloss (using a technical inspector).

(3) If the property is irreparably damaged andtechnical inspection is impossible, use a depreciationformula to determine the value of the property.

More detailed guidance is provided in AR 735-5, AppendixB, which should be consulted when computing the financialcharge. For example, para. B-2c permits the use of anallowance for standard rebuild cost instead ofdepreciation in certain circumstances; para. B-2bprovides that depreciation should be applied only whenthe fair market value or other methods of determiningvalue cannot be used.

Quite simply, the financial charge is the cost ofrepairs or if the property is lost, destroyed, orirreparably damaged, the actual value of the item at thetime of the loss. Once an individual is found to befinancially liable for any loss of or damage to Armyproperty, and the financial charge has been computed asexplained briefly above, the next question is what amounthe owes to the Government. Five general rules applyhere.

24

First, accountable officers will be held financiallyliable to the Government for the full amount of loss(less depreciation) discovered upon change of accountableofficers. Collection from an accountable officer isbased on 37 U.S.C. § 1007(f), which mandates collectionof the full amount.

Second, all soldiers, regardless of component, willbe liable to the Government for the full amount of loss(less depreciation) in cases of lost, damaged, ordestroyed personal arms and equipment. The terms"personal arms and equipment" are defined as itemsdesigned for personal use or performance of duty by aperson and normally stored with the personal effects of,or worn or carried on, the person. Examples includehandguns, flashlights, protective masks, and binoculars.Note that such items become personal equipment only whenthey are issued to the using person for personal use.Therefore items such as motor vehicles, office furniture,government furnishings, and typewriters are notclassified as personal equipment. Collection is basedon 37 U.S.C. S 1007(e), which requires that the fullamount of the loss be collected.


1. For destroyed government property, the financialcharge is the of the property atthe time of the loss.

2. [True-False] Accountable officers will be heldfinancially liable for the full amount (lessdepreciation) of loss.


25

ANSWERS: 1. actual value

2. True.

Third, any person found financially liable for lossof public funds will be charged for the full value ofthe loss (one exception is a loss investigated accordingto AR 37-103).

Fourth, financial liability of soldiers is limitedto 1 month's basic pay or the amount of the loss to theGovernment (less depreciation), whichever is the lesseramount, for all property except as addressed above.Financial liability of civilian employees for losses togovernment property, including personal arms - andequipment, is limited to 1 month's basic pay or theamount of the loss to the Government (less depreciation),whichever is the lesser amount. A civilian employee whois an accountable officer, however, may be held liablefor more than 1 month's basic pay, as explained in thefirst rule above.

For soldiers, combined losses of personal arms andequipment and other equipment and property arising froma single incident may result in charges greater than 1month's basic pay. The personal arms and equipment losssimply is added to either (1) the actual loss of otherequipment and property, if that loss amounts to less than1 month's basic pay, or to (2) 1 month's basic pay, ifthe other equipment and property loss is greater than 1month's basic pay.

Finally, when the surveying officer finds thatgovernment quarters, furnishings, or equipment associatedwith government quarters were lost, damaged, or destroyedas a result of gross negligence or willful misconduct onthe part of a soldier, their dependents, guests, or petsthe full amount of the loss will be charged.


1. Losses to personal arms and equipment (PA&E) --soldiers:

BASIC PAY ACTUAL LOSS AMOUNT CHARGED

Officer and $800 $ 50Enlisted $800 $900

26

2. Losses to other equipment or property (OEP):


All personnel $1,000 $ 100$1,000 $15,000

3. Combined PA&E and OEP losses -- soldiers:

BASIC PAY ACTUAL OEP LOSS ACTUAL PA&E LOSS AMOUNT CHARGED

Officer and $1,000 $ 500 $200Enlisted $1,000 $ 700 $400

$1,000 $5,000 $200

4. Specialist (SPC) Speedy, the unit supply clerk, wasrequired to transport 15 binoculars and protective masksto the field for use by other members of the unit in afield training exercise. On the way he negligentlywrecked the jeep he was driving and the binoculars andprotective masks were destroyed. The amount of the lossto the binoculars and protective masks exceeds his basicpay. Will SPC Speedy be held liable for the full amountof the loss? Explain your answer:


27

ANSWERS:

1. Losses to personal arms and equipment (PA&E) --soldiers:


Officer and $800 $ 50 $ 50Enlisted $800 $900 $900

Note that for personal arms and equipment, the soldierwill be held liable for the full amount of the loss, evenif the loss exceeds 1 month's basic pay.

2. Losses to other equipment or property (OEP):


All personnel $1,000 $ 100 $ 100$1,000 $15,000 $1,000

Note that the maximum liability is 1 month's basic pay.

3. Combined PA&E and OEP losses -- soldiers:

BASIC PAY ACTUAL OEP LOSS ACTUAL PA&E LOSS AMOUNT CHARGED

Officer and $1,000 $ 500 $200 $ 700Enlisted $1,000 $ 700 $400 $1,100

$1,000 $5,000 $200 $1,200

Applying the rules Just explained, you should charge thesoldier the full amount of the loss of personal arms andequipment and charge the loss of other equipment andproperty up to 1 month's basic pay; then add these twocharges together for the total charge.

4. The binoculars and protective masks were notpersonal arms or equipment, since they were not designedfor SPC Speedy's personal use or performance of duty.Instead, under the facts, he was merely transporting themto the field, so they could be used by other soldiers inthe unit. Therefore, SPC Speedy's maximum liability is1 month's basic pay.

28

What happens if two or more persons are found liablefor the lost, damaged, or destroyed property andliability has been determined to be joint and several?The next section explains this fairly common occurrence.

SECTION D. JOINT AND SEVERAL LIABILITY

When two or more individuals are involved andliability is determined to be joint and several, thecharges should be computed as follows:

(1) When the actual loss exceeds the combinedmonthly basic pay of each person being held liable, eachindividual should be charged the full amount of his basicpay. This rule does not apply, however, in thosesituations, described in S C, supra, where the 1 month'sbasic pay limitation does not apply (i.e., loss ofpersonal arms or equipment, etc.).

(2) When the actual loss is less than the combinedmonthly basic pay of all persons being held liable, thecharges should be apportioned in proportion to eachperson's basic pay. Use the following formula:

Individual's basic pay x actual loss = individual'sTotal basic pay financial

charge

Consider the following example:

Actual loss = $2,000

Person A's basic pay = $600Person B's basic pay = $1,200Person C's basic pay = $1,800

Total basic pay = $600 + $1,200 + $1,800 = $3,600

Person A's financial charge is computed as follows:

$ 600$3,600 x $2,000 = $333

Person B's financial charge is computed as follows:

SI.200$3,600 x $2,000 = $666


Using the above example, compute C's financial charge.


29

ANSWER:

Person C's financial charge:

$1,800$3,600 x $2,000 = $1,000

One method to check your figures when the actualloss is less than the combined monthly basic pay, is toadd together each person's financial charge -- the sumshould be the actual loss to the Government.

SECTION E. RECONSIDERATION & REMISSION OF INDEBTEDNESS

Determinations of financial liability may be amendedor reversed by several different procedures. First, anyheadquarters having previously acted on a report ofsurvey may decide that it should be reopened, corrected,or amended, in which case a letter explaining the basisof the decision will be forwarded (through anyintermediate headquarters) to the approving authority.Upon receipt of such a letter, the approving authorityhas several options available:

(1) Deny the requested relief;

(2) Make minor corrections not involving importantchanges of findings or recommendations of the surveyingofficer;

(3) Amend the final action, with or withoutconducting a further investigation;

(4) If the property is recovered, reopen the surveyand follow the procedures in AR 735-5, para. 14-16.

If the approving authority denies the request forreconsideration he will prepare and personally sign amemorandum setting forth the reasons for his denial.

Where the approving authority has taken finalaction, cancellation of a report of survey is prohibited.

Second, the individual being held liable may submita request for reconsideration. A request forreconsideration is a request for relief based on thelegal merits of the case. The reconsideration must besubmitted within 30 days of notification that theindividual is being held liable. As discussed above, itis reviewed initially by the approving authority, whomay grant the requested relief. If the request is deniedin whole or in part by the approving authority, it isthen forwarded to the appeal authority for action. Inthis case, the approving authority sends the appealauthority a memorandum setting forth the basis fordenying the requested relief.

30


A request for reconsideration is initially acted on bythe


31

ANSWER: approving authority

* **** *

The appeal authority usually is the approvingauthority's next higher commander (or certain otherindividuals, as provided in AR 735-5, para. 13-52). Theappeal authority takes final action on all appeals ofreports of survey "by authority of the Secretary of theArmy." An officer directly responsible or accountablefor the property listed on the report of survey may noLact as an appeal authority on that report of survey.Also, an officer who has acted as the approving authoritymay not also act as the appeal authority on that reportof survey. When the appeal authority is disquclifiedfrom acting on a report of survey, the appeal .ill beforwarded to the next higher commander. The authorityto act on appeals of reports of survey may be delegated,in certain instances, to an officer in the rank ofColonel or higher.


The appeal authority on a report of survey usually isthe


32

ANSWER: approving authority's next higher commander

There are two procedures for seeking relief fromfinancial liability established according to AR 735-5.The first is the reconsideration process, describedabove. Alternatively, a petition for remission(cancellation) of indebtedness may be submitted byenlisted members of the active Army or the ARNG. Notethat this procedure is not available to officers,civilian employees, or former enlisted soldiers. Arequest for remission of indebtedness of a report cfsurvey can only be based on extreme hardship. Requestsbased on injustice are not proper for consideration forremission. In such cases, a request for reconsiderationmust be made before a request for remission will beprocessed.

The Secretary of the Army may remit any part of anenlisted soldier's indebtedness remaining unpaid if theaction is considered in the best interest of theGovernment. Authority to take final action on requestsfor remission of indebtedness is restricted toHeadquarters, Department of t"- Army. While commandersbelow the Department of the Army level have no authorityto remit an indebtedness, they are required to suspendcollection of the debt pending a final decision on therequest for remission.

Nothing in AR 735-5, however, is intended to preventa soldier from seeking relief from the Army Board forCorrection of Military Records under AR 15-185.


1. A request for reconsideration is a request forrelief based on the (a) , while arequest for (b) __, which is limited to(c) members of the Army, is based on (d)

2. (True-False] Commanders below the Department of theArmy level must suspend collection when an enlistedsoldier submits a request for remission of iidebtedness.


33

ANSWERS:

1. (a) merits(b) remission of indebtedness(c) enlisted(d) extreme hardship

2. True. Collection action must be suspended untilfinal action is taken by Headquarters, Department of theArmy.

One final note -- in advising soldiers or commandersconcerning requests for remissions of indebtedness, youmay well wish to consult these references:

(1) AR 600-4, Remission or Cancellation ofIndebtedness for Enlisted Members, 1 December 1983 (thisregulation provides guidance concerning submitting andprocessing such requests).

(2) 10 U.S.C. S 4837 (Settlement of accounts:remission or cancellation of indebtedness of enlistedmembers).

SECTION F. COLLECTION FROM PAY

A person liable for damage or loss of Army propertymay always volunteer to pay the amount due. In somecases, the Army can also collect payment involuntarily.This right, however, to involuntarily attach or stop anindividual's current pay does not follow automaticallyfrom the administrative determination of liability, butin each case must be specifically authorized by statute.

1. Enlisted Personnel. Under 37 U.S.C. S 1007(c),up to two-thirds of an Army or Air Force enlistedsoldier's current pay may be deducted monthly tocompensate for loss of or damage to government property.Similarly, if the member still owes money at the time ofseparation, his final pay and allowances may be attached,but the soldier's pay will not be reduced to less thanone-third of his pay for that month. Consequently, ifa full month's basic pay or more is charged, collectionmust be over 2 or more months.

34

2. Officer Personnel. Until 1984, pay could bewithheld from an officers pay only under certaincircumstances. Officers and enlisted soldiers are nowtreated the same in regard to withholding.


Compensation for lost or damaged government property maybe involuntarily withheld from a soldier's (a)pay or (b) pay.


35

ANSWERS: (a) current (monthly)(b) final

3. Civilians. There is statutory authority f orwithholding the current pay of a civilian employeewithout his written consent. AR 37-1, Chapter 15,provides an excellent summary of the procedures requiredbefore collection may be made from the civilianemployee's current or final pay upon separation fromemployment and, if needed, from benefits accrued in theCivil Service Retirement Fund.

As a last resort, when no other method of collectionis available, the Army may elect to attempt collectionby requesting the Department of Justice to file guit(AR 27-40, Chapter 4).

Turn now to Appendix D, which summarizes the Army'sauthority to collect for damage to or loss of governmentproperty. Note that the only major problem area lies inthe involuntary collection from the current pay ofofficers and civilian employees.


Involuntary collection from current pay is available inall cases involving (a) and (b)personnel.


36

ANSWERS: (a) enlisted and officer(b) civilian

SECTION G. ROLE OF THE MILITARY ATTORNEY

As a judge advocate, you may become involved withreports of survey and other accountability procedurespertaining to lost, damaged, or destroyed governmentproperty in several situations.

First, you may be called upon to advise a surveyingor investigating officer prior to or during the reportof survey or AR 15-6 investigation. When initiallybriefing a surveying officer on his duties, you may findFM 10-14-3, Surveying Officer's Guide, to be a goodreference to recommend for his use. FM 10-14-3introduces the surveying officer to his duties andexplains the factors he should consider and principleshe should follow when conducting his investigation.Using the FM allows the surveying officer to have a readyreference he can read at his convenience and saves timein your initial briefing of surveying officers. Becareful, FM 10-14-3 is getting outdated. AR 735-5,Appendix C, is another quick aid for surveying officers.

Second, you may be requested to advise an individualwhose action is the subject of the investigation.AR 735-5 expressly provides a right to legal advice onlyupon a recommendation of financial liability by thesurveying officer. In practice, however, legal adviceis normally provided prior to an adverse determination.The advice may take the form of an interview in which youprovide guidance to ensure that all pertinent facts arerevealed and counseling as to how the facts should bepresented in a statement the individual may wish tosubmit for the surveying officer's consideration.Additionally, the individual may have been read hisArticle 31 warnings (as discussed in S H, infra) and mayhave requested to see an attorney. In any event, beaware that AR 735-5 provides that the office of the staffjudge advocate will provide legal advice when requestedby civilian employees, as well as soldiers, against whoma charge is recommended.


1. (True-False] It is proper for a JAG officer toadvise a surveying officer before the surveying officercompletes and submits his report of survey to theapproving authority.

2. [True-False] A JAG officer may provide advice toboth soldiers and civilian employees concerning reportsof survey.


37

ANSWERS:

1. True.

2. True.

Third, AR 735-5 requires a legal review in all casesin which financial liability is recommended. Whenperforming the legal review, you review the findings andprovide your opinion as to the adequacy of the evidenceand propriety of the findings and recommendations. Thislegal review is required to be completed before theapproving authority's action on the case. A copy of thelegal review is included as part of the report of surveyrecord.

Fourth, you may be made available to provide adviceon requests for reconsideration and request for remissionof indebtedness.

Finally, AR 735-5 requires a legal review before theappeal authority takes final action on a request forreconsideration. This review is similar to the legalreview performed prior to the approving authority actiondescribed above.

Obviously the potential for conflict exists and youshould carefully ensure that you do not improperly adviseparties with adverse interests. AR 735-5 expresslyprohibits the attorney reviewing a report of surveybefore the approving authority's action from reviewingthe request for reconsideration on the same report ofsurvey. You may advise a client on the report of surveyand later on a reconsideration of that report of survey.You cannot, however, advise both the person who is thesubject of a report of survey and either the surveyingofficer, approving authority or appeal authority of thatsame report of survey.


1. [True-False] A legal review must be conducted whenfinancial liability is recommended on a report of survey,before both the approving authority and appeal authoritytake their actions.

2. [True-False] The same judge advocate can performboth legal reviews described in question 1, as long ashe has not advised the individual being held financiallyliable.


38

ANSWERS:

1. True.

2. False. Having the same judge advocate perform thelegal review before the approving authority acts and thenagain before the appeal authority acts may preclude theindividual appealing the charge from receiving a trulyindependent review on reconsideration. AR 735-5expressly prohibits this practice.

SECTION H. APPLICATION OF ARTICLE 31. UCMJ

As mentioned earlier, reports of survey, statementsof charges and similar procedures will not be used asdisciplinary or punitive measures. The use of suchprocedures, however, does not preclude recourse todisciplinary measures when appropriate. In fact, it maywell be that the evidence adduced by the surveyingofficer will warrant later disciplinary action. Thus,questions are likely to arise on the desirability andnecessity of providing an individual his rights underArticle 31, Uniform Code of Military Justice.

AR 735-5 does not address the issue of whether anArticle 31 warning must be given and the consequence ofnot giving such a warning when one is required. TheJudge Advocate General has concluded that statementstaken in violation of Article 31 may be admitted intoevidence in administrative proceedings (JAGA 1969/3370).Nevertheless, because incriminating admissions givenwithout adequate warnings to surveying officers aregenerally inadmissible in trials by court-martial, TJAGfurther concluded that surveying officers should becautioned to advise a soldier of his rights under Article31 anytime the surveying officer suspects him of havingcommitted an offense punishable by court-martial.Certainly, when in doubt, the safer practice is for asurveying officer to provide such warnings.

Therefore, as a minimum, all surveying officersshould be advised of the possible application of Article31. This is particularly important when willfulmisconduct is suspected.


[True-False] The surveying officer failed to read asoldier his rights under Article 31 even though thesoldier was a suspect. The statement can be consideredby the surveying officer and others in determiningwhether to hold the individual liable.

(ANSWER ON THE FOLLOWING PAGE]

39

ANSWER: True. There is no exclusionary rule under thereport of survey system for failure to comply withArticle 31.

REVIEW PROBLEM:

On a Saturday evening, after visiting a number ofestablishments dispensing intoxicating beverages,Sergeant (SGT) Burns returned to his barracks room atFort Blank to recuperate from his exploits of theevening. Deciding to have one more cigarette, SGT Burnssat down in the over-stuffed chair in the barracks roomand "lit up." But the veil of weariness soon began toovertake SGT Burns and so, after placing the burningcigarette in a shallow ashtray sitting on the arm of thechair, he proceeded to his bed and soon fell fast asleep.Shortly after he fell asleep, SGT Burns was awakened bythe smell of smoke coming from the chair. He poured asmall quantity of water on the smoldering spot and wentback to sleep. Several hours later, at approximately0400, SGT Burns was again awakened by the smoking chair.He then poured some more water onto the chair and wentback to sleep. At 0530, another occupant of the barracksnoticed the smoldering chair in the latrine. Recognizingthat it was from Burns' room, he awoke SGT Burns to tellhim about the chair. SGT Burns said that he would takecare of the chair, but he fell back asleep withoutchecking on the chair. At 0900, another barracksoccupant awoke to find his room full of smoke. Afterwaking SGT Burns, he called the fire department. As aresult of the fire, the chair, which was government-issued and had a present value of $60, was destroyed andthe latrine window sash and frame were burned ($50replacement cost). In addition, there was smoke damageto the latrine and hallways ($100 for repainting).


1. In terms of the damage to the building, the standardfor liability would be (a) negligence or (b)

2. A report of survey [would] [would not] be requiredif SGT Burns voluntarily agreed to pay for the amount ofdamage.

3. If a report of survey or AR 15-6 investigation wereconducted, the approving authority would be the


40

REVIEW PR' -M ANSWERS:

1. (a) simple(b) willful misconduct

2. would not. Since the total amount of damage doesnot exceed one month's basic pay, under thesecircumstances a report of survey is not required.

3. battalion commander

41

PART II. LINE OF DUTY DETERMINATIONS

This portion of the programmed text deals with theArmy's Line of Duty system. Part II has two functions:

1. To highlight significant informationcontained in Army Regulation 600-8-1, Army Casualty andMemorial Affairs and Line of Duty Investigations(18 September 1986); and

2. To introduce Army judge advocates withvarious roles they may expect to play in the Line of Dutyinvestigation system.

At the conclusion of Part II of this text you willbe able to:

1. Identify the possible Line of Dutydeterminations;

2. Identify the legal requirements for thedifferent Line of Duty determinations;

3. Advise Army members of (a) their rightsin a Line of Duty investigation and (b) the consequencesof an adverse determination; and

4. Review completed Line of Duty actions for

legal sufficiency.

REFERENCES:

The major reference source on the Line of Dutysystem is Army Regulation 600-8-1, Army Casualty andMemorial Affairs and Line of Duty Investigations (18September 1986). The emphasis in this programmed textis on the legal, rather than on the administrative andprocessing, aspects of line of duty cases.

42

SECTION A. INTRODUCTION TO THE ARMY'S LINE OF DUTYSYSTEM

The Army's Line of Duty system stems from one basicpremise--every soldier who incurs an injury or diseasewhile conducting himself properly as a member of the Armyis entitled to certain benefits. These benefits includepay and allowances, accrual of service and leave, and,in some cases, disability retirement. The Line of Dutysystem is utilized to determine who is eligible toreceive these benefits.

Before looking at a soldier's eligibility forbenefits, however, we first need to know when a line ofduty determination is required. Basically, the rule isthis: a line of duty determination is necessary whenevera soldier incurs an injury or disease which incapacitateshim from the performance of duty.


Would a line of duty determination be required in thefollowing situations?

1. Sergeant Speedy is severely hurt while driving hismotorcycle.

Yes No

2. Captain Disputacious, JAGC, assaults a nonmilitaryfriend in a bar following an argument over the UCMJ.

Yes No

3. An enlisted soldier contracts hepatitis after

donating blood to the local Red Cross unit.

Yes No

4. A civilian employee on Post Desolate becomes illwith food poisoning after eating at the post cafeteria.

Yes No

5. An officer receives a minor cut while peelingpotatoes at home.

Yes No


43

ANSWERS:

1. Yes--the general rule states that a line of dutydetermination is in order when a soldier incurs an injuryor disease severe enough to incapacitate him from theperformance of duty. Neither the rank of the individualnor the location where injury/disease was incurred is afactor.

2. No--unless Captain Disputacious himself receives aninjury. The Captain's tort or criminal liability is notgermane to triggering the line of duty procedures.

3. Yes--disease contracted by soldier.

4. No--employee not a soldier.

5. No--a minor cut would not usually interfere withduty. However, if the cut became infected and the officerlater developed blood poisoning requiringhospitalization, then a line of duty determination wouldbe required.

It is important to realize that "line of duty" and"conduct" are two different questions, and each line ofduty determination must address both issues.

The "line of duty" question turns on an individual'sstatus as a functioning member of the Army. Note that"line of duty" is a term of art involving more than thedirect performance of military duties. For example, aperson injured while on authorized pass or leave is asmuch in the line of duty (LD) as is a soldier injuredwhile at his military post.

"Conduct" is a characterization of an individual'sbehavior based on tort principles.

44


A Reservist, intoxicated and an hour late for hisweekend drill, was driving at 100 miles per hour alonga highway posted for a maximum safe speed of 40 miles perhour. He was injured when his automobile left thehighway and crashed into a ditch.

In light of the general conceptual differencesbetween "conduct" and "line of duty," what facts in thisscenario would be pertinent to a determination of thesoldier's:

1. Conduct?

(a)

(b)

2. Line of duty status?

(a)

(b)


45

ANSWERS:

1. Conduct

(a) intoxication(b) speeding

2. Line of duty status

(a) status as a Reservist(b) unauthorized absence

As a note of caution, cases involving a member ofthe Army National Guard often raise difficult issues.If confronted with such a case, reference should be Madeto Army Regulation 600-8-1, para. 38-4.

There are only three possible line of dutydeterminations:

1. LD (in line of duty--not due to ownmisconduct).

2. NLD-NDOM (not in line of duty--not due toown misconduct).

3. NLD-DOM (not in line of duty--due to ownmisconduct).

These three possible line of duty determinations areset forth below:

1. LD. A finding for an injury or disease(1) incurred, contracted or aggravated while the soldierwas on active duty, was training in an active or reservestatus, was excused from duty or training, or was AWOL(absent without leave) and was mentally unsound at theinception of the absence and (2) not proximately causedby his intentional misconduct or willful negligence.

2. NLD-NDOM. A finding for an injury ordisease (1) incurred, contracted or aggravated while thesoldier was AWOL, unless he was mentally unsound at theinception of the absence and (2) not proximately causedby his intentional misconduct or willful negligence.

3. NLD-DOM. A finding for an injury ordisease which was proximately caused by the intentionalor willful negligence of the soldier.

46

The key terms used above are defined in § C, infra.

Note that the evidence bearing on conduct might alsobe relevant to the line of duty determination. This isbecause a finding of misconduct (DOM) leads automaticallyto a finding of NLD. If misconduct is not present(NDOM), then the line of duty status issue must beresolved on other grounds.


Is a determination of "in line of duty--due to ownmisconduct" (LD-DOM) permissible?

Yes No


47

ANSWER: No. There are only three possible line of dutydeterminations: LD, NLD-NDOM, NLD-DOM.

* * * * * *

As you would expect, most cases result in adetermination of LD. This is the most favorabledetermination and qualifies the soldier involved for allavailable benefits.

The other two possible findings, both coming underthe NLD subheading, are considered adverse and result indiminished benefits. Turn now to Appendix E at the backof the text and see how a soldier's benefits are affectedby a NLD-NDOM finding.

Next, take a look at Appendix F which illustrateswhat effect a NLD-DOM finding has on these same benefits.


Which of the two NLD findings is more adverse to asoldier in terms of entitlement to benefits?

a. NLD-NDOM.b. NLD-DOM.


48

ANSWER: (b) NLD-DOM

Although a loss of benefits may result from anadverse line of duty determination, such determinationsare entirely administrative, and not punitive, in nature.Although a soldier may be subject to punishment under theUCMJ for the same act of misconduct, final action takenin a line of duty proceeding has no bearing on any issuein a court-martial or other disciplinary proceeding.Conversely, such a judicial or disciplinary proceedingis not determinative of the line of duty determination.


Line-of-duty (LD) determinations are (a)in nature, while courts-martial are judicial. In otherwords, line of duty actions and courts-martial are(b) [related] [independent] proceedings.


49

ANSWER: (a) administrative(b) independent

SECTION B. PRESUMPTIONS GOVERNING LINE OF DUTYDETERMINATIONS

Which line of duty determination will be made in aparticular case is guided basically by a series ofpresumptions that have been developed. Thesepresumptions are rebuttable. However, they apply unlessevidence is discovered during the course of a line ofduty investigation making them inapplicable.

The basic presumption is that an injury or diseaseis presumed to have been incurred in line of duty and notdue to the individual's own misconduct. Note that thispresumption covers both the line of duty finding and thecharacterization of conduct.

Remember, this presumption, as the otherpresumptions that will be examined, is rebuttable. Itmay be rebutted by substantial evidence.


A soldier is seriously injured in an automobile accident.There is no evidence to rebut application of the basicpresumption. Therefore, the line of duty determinationthat should apply is:

a. LD.

b. NLD-NDOM.

c. NLD-DOM.


50

ANSWER: (a) LD

The presumption as to the line of duty finding canbe rebutted by a showing of substantial evidence that theinjury or disease was:

1. Incurred or contracted while theindividual was neither on active duty nor engaged inauthorized training in an active or reserve duty status;

2. Incurred or contracted during a period ofunauthorized absence; or

3. Proximately caused by the intentionalmisconduct or willful negligence of the individual.

The presumption as to the characterization ofconduct can be overcome only by a showing of substantialevidence that the injury or disease was proximatelycaused by the intentional misconduct or willfulnegligence of the individual.


1. A soldier is seriously injured in an automobileaccident. There is substantial evidence that theaccident resulted from the servicemember's intentionalmisconduct. The appropriate line of duty determinationis:

a. LD.

b. NLD-NDOM.

c. NLD-DOM.

Explain your answer:

51

2. A soldier is seriously injured while absent withoutauthority. There is no evidence as to the cause of theinjury. The appropriate line of duty determination is:

a. LD.

b. NLD-NDOM.

c. NLD-DOM.

Explain your answer:

[ANSWERS ON FOLLOWING PAGE]

52

ANSWERS:

1. (C) NLD-DOM. A showing by substantialevidence of misconduct affects both the line of dutyfinding and the characterization of conduct.

2. (b) NLD-NDOM. The unauthorized absence, whileaffecting the line of duty finding, does not overcome thepresumption as to the characterization of conduct.

A further presumption is that a soldier was in soundphysical and mental condition upon entering militaryservice. If this presumption is overcome by a showingof substantial evidence, it is further presumed that anyother disability or death that results from a pre-existing injury or disease was caused by serviceaggravation. Only specific findings of natural progressof the pre-existing injury or disease, based upon well-established medical principles, as distinguished frommedical opinion alone, are enough to overcome thepresumption of service aggravation.


Private Smith entered active duty suffering from anundiscovered disease. While on active duty he becamephysically disabled. Due to the exotic nature of thedisease, there is no medical authority as to whether thedisability is the natural result of the preservicedisease. The appropriate determination would be:

a. LD.

b. NLD-NDOM.

c. NLD-DOM.


53

ANSWER: (a) LD. The presumption as to serviceaggravation can only be overcome based -i well-established medical principles.

AR 600-8-1 sets out specific rules pertaining tocases of suicide. Basically, death is presumed to becaused by accidental self-destruction, unless there issubstantial evidence of a greater weight than supportsany other conclusion, that the death was caused byintentional misconduct or willful negligence. The lawpresumes that a sane person will not commit suicide.Therefore evidence which establishes merely thepossibility of suicide will not overcome the general lineof duty presumption.

More detailed guidance can be found in para. 41-11and Rule 10, Appendix F, AR 600-8-1.

ANSWER THE FOLLOWING QUESTIONS :

1. The presumption as to accidental death can only beovercome by a showing of evidenceof self-destruction.

2. [True-False] The taking of one's life throughnegligence rather than willful negligence will result ina finding of LD.


54

ANSWERS:

1. substantial

2. True.

It is appropriate to note at this point that a lineof duty determination is not made in cases involvingdeath. However, an investigation into the circumstancessurrounding the death may be necessary. See para. 41-12, AR 600-8-1.


Which of the following best describes how a caseinvolving a servicemember's death is handled?

(a) Conduct an investigation and make adetermination based upon the circumstances and otheravailable evidence.

(b) Make a line of duty determination onlywhere the deceased soldier has dependent survivors whomay be eligible for VA benefits.

(c) Investigate the surrounding circumstanceswhen required, but make no determination.

(d) Conduct no investigation and make nodetermination.


55

ANSWER: (c)

SECTION C. DEFINITIONS

In order to support a determination of NLD-DOM, thatdetermination must be supported by substantial evidenceand by a greater weight of evidence than supports anydifferent conclusion, that the injury or disease wasproximately caused by the servicemember's intentionalmisconduct or willful negligence. Simple or ordinarynegligence or carelessness alone, does not constitutemisconduct.

This section amplifies the above statement anddefines the emphasized terms of art as they are used inAR 600-8-1. Remember, as explained in S B, certainpresumptions apply and provide a starting point formaking determinations.

1. Standard of proof. Findings must besupported by substantial evidence and by a greaterweight of evidence than supports any differentconclusion. The evidence must establish a degree ofcertainty so that a reasonable person is convinced of thetruth or falseness of a fact.


The standard of proof used in line of dutydeterminations is more analogous to the ("preponderanceof the evidence") ("beyond a reasonable doubt") standard.


56

ANSWER: preponderance of the evidence

2. Proximate cause refers to the connectingrelationship between an act of the servicemember and adisease or injury that results. It is a moving or directcause, as opposed to merely a contributing cause. Ingeneral, it must appear that under the circumstances thesoldier could have reasonably expected that the injuryor disease might be caused by his conduct.


While absent without authority, speeding and heavilyintoxicated, a soldier drove his car into a ditch.Miraculously, he suffered only minor scratches. However,while extricating himself from the ditch, he was robbedand severely beaten by persons unknown. As a result ofthis beating, he was hospitalized. The appropriate lineof duty determination would be:

a. LD.

b. NLD-NDOM.

c. NLD-DOM.


57

ANSWER: (b) NLD-NDOM. If the soldier had beenhospitalized as a result of injuries directly resultingfrom the automobile accident, the appropriatedetermination would have been NLD-DOM. However, sincethe subsequent beating and its resulting injuries werenot reasonably foreseeable consequences of the wreck,there is no proximate cause link between the speedingand drinking and the incapacitating injuries.

3. Intentional misconduct refers to anywrongful or improper conduct which is intended ordeliberate. The intent can be expressed or implied. Inaddition, the misconduct need not constitute an offenseunder the Uniform Code of Military Justice. In casesinvolving suspected intentional misconduct, referenceshould be made to the Appendix F, "Rules Governing Lineof Duty and Misconduct Determinations in the Army," AR600-8-1.


Private Mary Smith is injured as the result of an act ofmisconduct on her part. The fact that the misconduct isnot punishable by court-martial (is) (is not)determinative of the line of duty determination.


58

ANSWER: is not

4. Willful necrlipence is a conscious andintentional omission of the proper degree of care underthe circumstances. Willfulness can be expressed orimplied. A reckless disregard of the consequences of anact as they may affect life or property is presumed tobe willful. Note that simple negligence does notconstitute misconduct under the Line of Duty system.


If an injury results from a soldier's driving 5 miles perhour in excess of the posted speed limit, the appropriateline of duty determination, in the absence of any otherevidence, would appear to be (a) . If theinjury resulted from the soldier's driving 25 miles perhour over the speed limit on a winding road during a rainstorm, a line of duty determination of (b)would appear to be appropriate.


59

ANSWERS:

(a) LD(b) NLD-DOM

SECTION D. LINE OF DUTY INVESTIGATION PROCEDURES

At this time, it is not necessary to discuss indetail the procedures to be followed in arriving at. aline of duty determination. However, some of the basicprocedures will be covered.

There are three procedures that may result in a lineof duty determination: presumptive determination,informal investigation, and formal investigation. Whichof these procedures must be utilized in a given casedepends upon the status of the soldier and thecircumstances surrounding the injury, disease, or death.

Chapter 40, Army Regulation 600-8-1, containsspecific rules as to which procedure is required in agiven case. These rules should be consulted whennecessary to determine whether the proper procedure wasutilized.

Note that a presumptive determination and aninformal investigation may result only in a determinationof LD.


In order to support a determination of NLD-NDOM or NLD-DOM the procedure mustbe utilized.

(ANSWER ON THE FOLLOWING PAGE]

60

ANSWER: formal investigation

As a general rule, line of duty actions originateby the completion of Section 1 of DA Form 2173, Statementof Medical Examination and Duty Status, by a medicalofficer at a medical treatment facility. A copy of DAForm 2173 is inclosed at Appendix G.

In cases of a presumptive determination or informalinvestigation, the injured, diseased, or deceasedsoldier's unit commnnder completes Section II of DAForm 2173 and forwardb the document to the special court-martial convening authority (SPCMCA) or higher authorityfor review. When required, the SPCMCA forwards thedocument to the final approving authority.

In cases involving a formal investigation, the unitcommander completes DA Form 2173 and forwards it to theSPCMCA. The SPCMCA appoints an investigating officer whoutilizes DD Form 261, Report of Investigation, Line ofDuty and Misconduct Status, to complete theinvestigation. A copy of DD Form 261 is inclosed atAppendix H. The Report of Investigation is then returnedto the SPCMCA, who forwards it through the reviewingauthority to the final approving authority.

Chapter 40, Army Regulation 600-8-1 containsdetailed information concerning the processing of lineof duty actions.

COMPLETE THE FOLLOWING:

As a general rule, regardless of the line of dutyprocedure utilized in a particular case, the procedurewill be initiated by a (a)and the soldier's (b) mustcomplete Section II of DA Form 2173.


61

ANSWERS:

(a) medical officer(b) unit commander

Certain protections are available to the soldierbeing investigated. The soldier, or his representative,must be informed in writing of the impendinginvestigation and its purpose. The soldier is allowedto submit evidence or sworn or unsworn statements.

Before questioning by an official investigator(civilian or military) the soldier must be advised thathe does not have to make any statement that is againsthis interest that relates to the origin, incurrence oraggravation of the injury or disease. A statement madewithout such warning will not be used as evidence for anunfavorable line of duty determination.

In injury or disease cases, the final approvingauthority informs the soldier being investigated of theresults. The soldier may appeal within 30 days ofreceipt of such notice. For appeals not submitted withinthis time limit, he must "fully explain" the reason forthe delay. Additionally, the Secretary of the Army may,at any time, change a line of duty determination.


1. [True-False] In a line of duty investigation, thesoldier being investigated must be given the opportunityto submit evidence to the investigating officer.

2. [True-False] An adverse line of duty finding may beappealed.


62

ANSWERS:

1. True.

2. True.

SECTION E. ROLE OF THE MILITARY ATTORNEY

The military attorney may become involved in a lineof duty case in any of the following situations:

1. Advising the subject soldier of his rightsduring the conduct of a line of duty investigation andof the benefits at stake in the event of an adversedetermination;

2. Advising unit commanders and investigatingofficers concerning the utilization of a particularprocedure and the conduct of informal and formalinvestigations; and

3. Reviewing completed line of duty actionsfor legal sufficiency.

It should be noted that Army Regulation 600-8-1,para. 41-5, expressly provides a subject soldier with theright to consult with legal counsel.

REVIEW PROBLEM:

At approximately 2300, as a result of a telephonecall from the local civilian police, MP's from Fort Hopearrived at the Go-Go Shack located outside Fort Hope'smain gate. Upon their arrival, the MP's were directedto an unconscious soldier, subsequently identified asPrivate Sidney Sufferin, who was lying in the alleybehind the Shack. Private Sufferin is presentlyhospitalized in the Fort Hope Army Hospital recoveringfrom his injuries; he has no recollection of the eventsleading up to his injuries.


1. Assuming no additional evidence isdiscovered, the appropriate line of duty determinationwould be (a) . This determination

63

results from the (b) that the injurieswere incurred (C) and(d)

2. If Private Sufferin's presence at the Go-Go Shack was in violation of an order of his companycommander restricting Private Sufferin to the limits ofthe company area, the appropriate line of dutydetermination would be

3. If there were sufficient evidence toestablish that Private Sufferin's injuries resulted fromhis drunken attempt to fly from the roof of the Go-GoShack, the appropriate determination would be

4. In order to support a determination ofNLD-NDOM or (a) in Private Sufferin's case,the (b) procedure will have to be utilized.

5. [True-False] Before a determination ofNLD-NDOM or NLD-DOM can be approved in Private Sufferin'scase, Army Regulation 600-33 requires that the case bereviewed for legal sufficiency.


64

REVIEW PROBLEM ANSWERS:

1. (a) LD(b) presumption(c) in line of duty(d) not due to the individual's own

misconduct

2. NLD-NDOM

3. NLD-DOM

4. (a) NLD-DOM(b) formal investigation

5. True.

65

66

APPENDIX A

STATEMEN4T OF CHARGES FOR ML1an. &AT 04090 .NUSEU av

GOVERNMENT PROPERTY LOST, DAMAGED OR DESTROYED 31 January 1987C*AS OF PRO4 I v ORANIZATIONAL root MOs? Go,

ACCOUNTABLE 0krCR Company AHQ 1st Bfl. 584th Int (W4.4Ist Sn, 584th Inf CWARWAO) February 1987

1110C I COOO ACCOUN? tO.tm P..patgTv AcCOfRooP STATION

c~a '.Ca'ct CPT , Inf, Commanding Fort School, VA 23800 __ ____

. ~ 4 * ARYCLcm PaIcg

6230-00-264 Flashlight, mx-991/u ($1.30) 1 1 2 .97' 1.948261

8405-00-240- L~iner, parka, mans, mohair, 1 1 9.58' 9.582461 (L70720) frieze, 00, shade 107

($10.65)

8405-00-223- Parka, mans, ctn-nylon 1 1 11.38' 11.387623 (N69904) oxford, 00, shade 107, wo

liner ($12.65) RICC 2No Residue

*Depreciation allowed ier arigrajh +-1l A 7 5-5GRAND TOTAL 22.90

CERTIFICATE OF RESPONSIBLE INDIVIDUALS

I c aI AY th No'a orcvrteaon of indebtno.C by payroll deduction.b. An *ffa "motion that the artile* are not now in my possessiconc. An agreement to turn in~ to the appropriate supply Officer all artidee later recovered. it being understood that the United Slot**__ Government retains title to the orticlee listed hereon. _______ ______________________

JIGNATURE Of INDI VIDUAL A AMOUNT ACCEPTEDCOL NAMR, GRADE AND SOCIAL SECURITY NMNEft CAUSE FOR CHARGE TOTAL CHARGE £mOu"10W-

AM( George, Roy S. Lost GovtICMA08 GS-12 ETS: N/h Property $12.35 j89"000p -0-000 PCSe N/A7NdAME James Loyal C. Lost GovtGOCADS MSG, ETS: 2 Apr 88 Property 9.5

_ slftono...-onoopf pn. 17 Wny-~ R?7 ___________

N'A George T. Armstrong Lost Govt* *RADEScG, ETS: I Jan 87 Property .97

"o"000-00-0000 PCS& N/A_____

NANGE

S

NANG

GR N TAL...........

............ Le...

________________________________________OF___ $22. 04 i.....#...-......________IC

0 Cialemels hereon at* complete sold Melc. all damaged OSUIN PIE RPY~.CRIYW PIIpropeuty has beon disposed of in accordanice with Curlrent dire- 59. CCIwg goppasn the lsnme of oacli Pam"o listed here" hees

ives and the chatilee hove tow~n comtd "R Iacemlnce opiub the be" i rwird CR bhe oAfjiqJt.saa pay rlir-oo Ca poirell. or DD Farm 136povisions of Aft o34-11 (APM 0-OPIZ51 ISAsE b...n propaed and fervarded Ia, eolelmsi,

31 Jan 87CMBLBeb8 57 'A

36*4 U.S. G.P.O.tSO6Satl

A-1

APPENDIX B

ACTIVITY ,N."aim IOqe hao0180 fl-eladr ZIP Cod*)

S 84th Supply & Service Bn., Fort School, Virginia 23800Zw ___________;U 01ECgIVVO AND FONWANO1O SY ,g -f'~ 11W, taind *-j.atu-r) DATE

SJim Wright0 ILT, FC 5 February 1987

ACTIVITY (NO"w and locafoon) (I".dude ZIP Codt;

z Finance Office, Fort School Virginia 23800 __________

~ i OSU f~lNGOF nitj nom ia. dle ant/ f 'mi&,,) DIS9URSING STATION DATE OK 4IEVD SUSJGC' TOC113 "'S"GOFE S MOO NOCOLLECTION

:0 Jon C. MclIveryS Finance Officer 7 February 1987

___ ______PERIOD FRMTo

DATE NAME O MENITT90ODTAILED DISCmPNioN Or ACUNWPuU91-s rook WHICH AMOUNT CASSCAINinNEC o DISC 01IwTIoN OF REMITTANCE COLLESCTIONS WEIRE PICIIVIDCASIICTO

Loyal C. James MSG Accy kit, MK1506/VRC $434.O0*000-00-0000 5815-00-402-5308

1 ea, $482.00, RICC 2A02012, No residue

.re /B. Owen, III SGM Sleeping bag, artic 36.90*

000-00-0000 8465-00-264-50841 ea, $41.00, RICC 2

~ D ~T71706, No residue

ulian D. Edmondson Mask, prot, ABCM17 S 36.17*GS-7 4242-00-542-4450000-00-0000 1 ea, $40.18, RICC 2

M411895, No residue

Used instead of an investigation, para 12-3, AF735-5.

The signatures hereon are agreements to turn ir to the pro er supply officer allaj ticles later recovered. It is understood that teUS Goverr lit will retain titlet( the articles listed on tis form.

I'Depreciation allowed Fr paragraph 14-17, AR 15-5.

ToTAL 1$507.07FOAMIVN OP 4 4 RPAS OTN@I APR WCMSS@3e@OE? *wm awnod bw Canw&A *dp OWLDDI APOS 2. L

B-1

APPENDIX C

DEPARTMENT OF THE ARMY I DATE PREPARED 2 SURvEy NUMBERI

Fo, .,.. of tqs fo-'. ** AA 735 11 1 6 01oPO.'.t 490-cv , OCSLOG 20 January 1987 10-87

(Dr.4n 1 zt lora I M.>VIC, 10th Inf Div, Ft Blank, TX 78234, UIC: WARVAA

NATIONAL STOCK NUMBF A ITEM DESCRIPTION CITY UNIT PRICE TOTAL COST

1 . 6650-00-530-0974 Binocular 7x50 Military Reticle, e a $350.00 $350.00(B67218) MI7AI, SN; 24567

2. 5180-00-672-2611 Tool Kit, General Mechanics, Light(W38895) Weiq1ht

Component Loss5110-00-241-9148 File, Hand 1 ea 1.80 1.805120-00-061-8541 Hammer, Hand I ea F,- 75 6.755120-00-240-5328 Wrench, Adjustable 1 ea 3.60 3.60

_________~~~~~~ ____

G_ _ _ _ _ _ _ _ _ _ _ _ _ _ _rand

Totak $362.15

11 DATE AND CIRCUMSTANCES

On 12 January 1987, after a joint inventory between me, CPT Phillip B. Murphy, 000-00-0000,Commander, Co A, 307th Signal Battalion and my replacement, CPT Teresa Nelson, 000-00-0000,the items listed above were discovered missing. After a complete search of the area, I wasunable to locate the missing items. The last time I recall seeing the binoculars was duringthe monthly inventory on 10 December 1986. 1 definitely recall seeing them on that date, asI had just returned them to the company safe from my quarters, where I was using them tospot birds. The binoculars are normally stored in a locked container in the company orderlyroom. I had one key to the container. The second key was maintained in the company key box,which is controlled by the company first sergeant, 1SG Loyal C. James, 000-00-0000, or thecompany CQ (Exhibit A). The binoculars were not present during the joint inventory on 12January 1987. The tool kit was inventoried when I took command 2 years ago. I did notinventory it because I was the only user of the tool kit. I kept the tool kit stored undermy desk.

Exhibit A attached

12. AFDVTSIGNATURE AND DATE 13 S.bac..Od and ,Irdn to la .a'madI

I Go ael6AmIly twwa I", affirms that ao:Ike best 04 r.A'4-z" - ( Cho, day atm~fy owiideaedbev~fld/fl atac fPIoa.t TYPEDONAME. GRADE. ANO SSN MAMIE AND 0RADII flype m**sj

weo test. ~mroyad. dornoved.. or,. vo.. out inth Phil lip S. Murphy, 03 SCfmarlw Stated. W.ab.Ia . the PubIC o 000-00O-000O14. DATE SOUMNWME

21 Jan 87 ,ms W. Clingan, ItUSA jrKA-01 25

17. APPOINTING AUTs4ORITV

I he"g recive ndW ta adafta PewtACIIIs to Itha 14141 aamad. af eaoyad Of 0 IV. 6114 haago eam"a 10a1 111 f0~iM 09"00~ is 0600WOLt

a. 0 NO NWO.0 =aaim awa There 1a .0 00010104 #..Va04 Of~a. I do 00etopliet .WfsIttlWORPMLOdwobwat. unawtoersadl. herb Wom~ tIos daaumeno to mea aWOVAS ostait ow fin sf... EPJJe I. e

b. 9) Tha 00smaaa Coasdn eaMt. d*msag of daatftts woolen Stootter smaeangat-6. IDPNoee to lse #A.11

.O Cotndua an..gtmsa aWS to AA 164. Anaghk 10141 deto-ont. a an afts.60t. to Cow wtgteOa fo,*adisit wspi :Ae oaw .ty.

14S OATI It. TYPSD NAOME. G RAO*. AIND TkTLS Of APPOtINTING AUTssORITw N. SIONATURS

31 Jan 87 THOMAS R. WEW'HD 05, Scfe )4aCOMMANDER, 307th Sig, 3mn

DA FORMDA FORM "41 46St". 1 AOL. 70 and OA FORM S?4IEST).DA P3 $Fop wl465 1 JUL 70 AMA OSU'tTI

C..1

21 APPOINTING AUTHO0AITY 22 STATION 23 OATS

HQ, 307th Signal Battalion Fort Blank, Texas 78234 31 Jan 8724 NAME. GRADE OF SURVEYING OFFICER

04 Robert A. Smith05 Thomas R. Welch

YOU ARE APP04NTEO SURVEYING OFFICER SY ORDER Of ________ssrnsr___ rode__of________________________

26 FINDINGS AND RECOMMENDATION

I have .em, d all a.4.iafie ovd*#%Ce as Shown, lIn S.NWISl as..... and as indicated below haea personally inogalguted thesae~ and t a6 MY belie that the arrscll) listed hWerI an/ attached to shos total coat ,362 .1-5 we re lost as the

result of negligence on the part of CPT Phillip B. Murphy, 000-00-0000. CPTr Murphyfailed to properly secure the listed items. According to the statement of ISG Loyal C.James, 000-00-0000 (Exhibit B) , CPT Murphy on several occasions used the missingitems for personal purposes. 1SG James also established the tact that the securityof the missing items was compromised by CPT Murphy, and CPT Murphy degraded he unit's

key control system. SGT John C. McMullen, 000-00-0000 certified (Exhibit C) that he wasunable to convince CPT Murphy to allow him to either secure the tool kit or turn it inas excess. The certificate of the of the unit clerk, SP4 David Jones, 000-00-0000 (ExhibitD) establishes the fact that CPT Murphy often returned the missing binoculars and simplylaid them on the safe instead of securing them. The listed items were depreciatedaccording to paragraph 14-19, AR 735-5. The actual loss to the government is $325.93(Exhibit E).Recommendation: That CPT Phillip B. Murphy, 000-00-0000, be held liable in the amount of$325.93 and all others be relieved from property accountability and responsibility forthe missing items. CPT Murphy's monthly base pay at the time of the loss was $1,514.70.

(See continuation sheet)

a. ATVALh05'b AtQ~p4~HAREO e LOS" TO GOVERNMENT

RECOMMEND PECUNIARY CHARGE $ Ss9.'ii 0

2% DATE 29.. TYPED NAME. GRADE Of SURVEYING OffCtR It. S11694ATUSiR

20 Feb 87 1 04, Robert A. Smith lj;,W 04, SC

7;;. 1 have eamined the findings and recommendation$ of the Surveyi~ng Officer On this Meoon of 6urveyV end the alihibilu Ato .L.. and Q des,,* to make a sttemenit w"Ach.11 attached heireta; in do not desire to mae a statement. I am eworeof my right to legal edece.n preparing the satemeant eirdi. if a pecuniary charge so finally apostroved. to make &DOWe and file. a..futsid mnen) my right to request remisson of Indebtedness. I aftVmfi 'tot 0114 accosnlasble Offecar for the fact or damadadw pisioemv.The Property was/wes not my Personel ac'Mi Of equipment.

31. OATE 32s. TYPED NAMS. GRADE OF INDIVIDUAL 4K 10 CHARGED Ib. S ONATUR9

21 Feb 87 1 03, Phillip B. Mur hy 03, SIC33. RECOMMENDATION SY 34. COMMENTS

THE APPOINTINGAUTHORITY Because of the potential financial hardship on CPT' Murphy.

(CONCUR recommend the charges be prorated over a 3-month period.

0 NONCONCUR ________________________________________

39 OATE 31a. TYPED MAW. GRADE & TITLE OF ANPOININO AUTH Is INATURE

28 Feb s7 05, Thomas R. WelchLi%. 'a sCommander, 307th Sig Rn

37- APPROVING0 AUTHORITY 3.PCNAYCA4

a.0 REJacTSO. invetisatan is raqasised. Apoaent a gut wey ottkw. Datea *p.itgmPEuAR A@.

Is. 0 REJECTED0. Inti.stiefAf incomeleea. Ad*-e infomatio reafuished. Oats - lisstiet __________

.. gJ APPROVED SY AUTHORITY OF THE SECRUTARY OF THE ARmy. To hold C"? as. ACTUAL LOU *

Phillip a. Murphy, 000-00-0000 pecuniarily liable in the amount of$325.93. Accountability has been discontinued. CPT Murphy's monthly $32S.93basic pay at time of loss was $1,514.70. Recommend the charges be .AMOUW CHAIMM60

prorated over a 3-month period. $32S.93

4L LOS TO OOVS RWMS W

0

30. OATE 446. TYPED INA. DRAW 6 TITLE OF APPOVING AUtH 6.20ATUNG

mar 87 06 Wallace A. brifnch 4/l*i~-- - ~Commanderoj 2d Si.&/, tt 7-

C--2

APPENDIX D

AUTHORITY TO COLLECT

Involuntary Voluntary LitigationCurrent pay Final Pay

Enlisted Yes Yes Yes Yes

Officer

accountable officer 2 Yes Yes Yes Yes

personal arms &equipment Yes Yes Yes Yes

negligent acts Yes Yes 3 Yes Yesor misconduct

Civilian Yes4 Yes Yes Yes

Notes: 1. The servicemember must receive at least 1/3 of his pay.

2. In most circumstances--check 37 U.S.C. S 1007(f).

3. Using the general rule of set-off.

4. See, Debt CollectionAct, 5 U.S.C. 9 5514.

D-1

APPENDIX E

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E-1

A.PPENDIX F

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APPENDIX G

STAT EMENT OF MEDICAL IXAMINATIOM. MD DUlY STATUSFor 04o we* of this form. weAM 0010-1; ttIO0fOPO"*nftsegnCy i.MILPENCfiF

thRIL. 110let.le SIP Code)' TO (bngg..g sm Cod*) (Iml. zip Cede)

Ciuimader Cczmader

,e=1 OSA DewitVI.j~jt Army Hospital

Ft Mer, VA 22211 Ft MckNair, Wash DC 20319 FtBelvoir, VA 2206011 tbdO lSIl. LXAIIIE (La.. ate. and MIddle lIiaI) 11 SINt $- GRADE

Doe, John F. 100-11-0000 SSG/E-64. OROANIZ*TIOM ANDQ STATI04 S. ACCICNT INFORMATION

S. OATS PLAa Cle on sar*Sl)

HQM USAM, Ft Mtyer, VA 7 Jan 85 r Nwigton, VAS,SECIONS I TO BE COMPLETED mY ATTENDING PHYSICIAN OR H9OSPITAL PATIENT ADMINISTRATOR

S. INDlVIDUAt.WAS ()DUlaTPAINT N.IAMG OFP NOUPITA6 OR tACATMdENT FAC16.ITY MI IALIANM ILTR

Ca&o4..usO (M OAO ONA1IA Dewitt Army Hospital, Ft Belvoir, VAS. NOUN 4NIO OAT6 ADMITTED I*. Noun AND0 Gave ExAMINED0

1930, 7 Jan 85 11930, 7 Jan 85119. MATURE AND0 EXTRNT OF I4JURYV 'O ISEASEI P RSUL. TING let OCA T" (faplain)

Fractured Skull11. ME9OICA. OPINIONI 0. INDIVIDWAL ErWAS (Z WAS NOT UNDER1 TP4E IMPLUENIC9 OF X] AL6COVOL M R0 SnuS I1414

b. IfmVotfUAL 03* WA C WAS NOT MEN80TALLY SOft(Afl.h P*paN&&lE OV91690JO 01 &ewftWOO)

S. INJURT ( 10 (IS NOT LIKEI.? TO M69UL.T IN A CLAIM AGAINST1 ?sea GOVENMENt# Or PIJTWe MEDICAL. CAme.

4L imiumT O.WAS 0 WAS Mor #P8CWAft0 IN 16IN06 OF OWTy. aASa3 FOR OPINION:.

IS.'INGFOI.OW140 O9A*06IT MA assurIS. S' OOD ALOHOL I'l. "e. Ou S. ALCH 00006 WL

T*IiPORARV CPERANENT aPARTIAL6 r PERMANEKNT TOT M YESC: 04 MO .000/100 MlI&. DETAILS OF ACCIDENT OR 041STORY OP OISEAIS (1110. Whff*. WhOR)

SM was driver of a motorcycle involved in an accident on Backlick Road in Newington,VA.

1S DAT I?. TYSED On PIN"TED NA4ME of AjTNDIft* 10. SIG14ATUREPNVICIAN OR PATIIENT A00MINIS11TRA TON

8 Jan 85 K.C. Scifres, iLT, PAD

SECTION4 11I TO BE COMPLETED BY UNIT COMMANDER OR UNIT ADVISERIs. DUTY STATUS H* OUN AND OATE OP ASENCEt

CiPRESENT Poo DuTY 0 AsseNT, sITNOUT AUTHORITY FRM0.T

(2ASSENT WorN AUT-nORT V)oNe Pave QoN LeAVE 1'600, 7 Jan 85 0o600, 8 Jan 8581. A69:14CEW TNj TAUTNORITYT RAIL ?"ERaRE 10Y4TE ERORRAMCI OF MdILITARY OUT (ERP@401080&30

Z heW. of duty. ofi how Of id of dUE lee ifiefeO -11A perfoWhiewew)

55k. INDI0VIDUAL. WAS ON so H* OUN AOO DATE TRAINING

(z ACTIVE DuTY C3 ACTIVE SliT? POR TRAINING 4-Sella A ENDED

CN kACTIVE DUTY TRAINING 1 :1

54. RESERaVIST DIeD OF PIURIES REaCEIVES PROCEEDINS C DIRECTY TO TRINN Cnltm DIRfECTLY FROM TRAINING

so. MGoa OP TRANSPORTATION 35 H111 OUR 111901NN01NG TRAVEL 1ja?. DISTAN1CE INVOLVEDO I Al. NORM"AL t1ME FOR TRAVEL.

50. DUTY STATUS AT TIMER OP SEA TN IF SIOPPERETgt FMRh ?IMG OP INJURY OR CONYIRACTION OP DISEASE

po PRSENT 1O1OT? ASEN WITPI AUTHORI11T "ou ASETWINIT UNOIy

011. DET AILS $ ACGN or ru RNA 4 am&& aiessutcy specse IS WOSE. canSl MI;~tS Amc n~e~ G eee

SSG Doe was the driver of a moftorcycle which was involved in an accident at apprcDi-intely 1900, 7 Jan 85 with a truck (Semi-Tractor Trailer type), driven LIP Mr. JamesJones, on Backlick Road, Newington, VA. Mr. Jones swerved his truck to the lef t whileattempting to make a wide right turn, striking SSG Doc. Mr. Jones was cited for anumber of violations. Police repo~rt is attached as Dhibit A.

$1 O M AI O P OUTY INV STIGATIO Nt REG1 UI ED0 Ils. I NJURaY I C No Iv NAn I

SI.~ OrNA LIN OP DTY =0911ef 9 to.~ en d" fte) terlna 1OvEs (MN no I E C- No agncss in deathscasesy

S&. DA1E 54. TYPEg NAME ANO GRADE OPP UNIT COMMdANOER01 ORt so. SIGNATUREUNIT ADVISER

9 Jan 85 R. G. Landis, MW

FeT ii 21REPLCES *A rm alls. I juNte". WHICHq Io OSSOLE.6

G-1

APPENDIX H

REPOAT Of INISTIGATlW "itUN OF 0U M ANM CONDUa STATUS 5 February 1985

E .0 Oaa.AM 0 DA1W _1 -W.A . L~AI TO, Iw Amu.7 or Am FoW Catffr i CALLRO 00 CO"to To AD Poe

Commander 'i 0 MN , DAS

Military Disttlct of Washington It 0 30 DAs,"U

Ft Lesley J. McNair. Washington, DC 20319 W T,, odmc

4 WAT NA"M -POT NAAMI acw WIAL. W3 -4./UA ,si A aW (rpm)DOE. John D. 000-00-0000 FC/E-7

CEOM AICAA S TAM.ON OP J DUT ,I Th lNG

HQ CO, USA, Ft Myer, VA 22211 ftomVAoi NY in"e viv o vra ,mam LO280 W Ja (Anm8= Oft rapf and AD

TH hoICCOT 08 04AW *ATION MACN

A A md A Poo o R MW I"" below ine e oaNONE

STA"

Lacerations to head and ches

LUIS M WS ( el41M'QZ4 CMin,

Henry (HQ CO, USA, Ft Myer, VA) in Arlington, VA. Testimony by SFC Henry indicates

SFC Doe arrived at his residence at approximately 2100 hours on 31 Dec 84. SFC Henryalso stated that SFC Doe was the only individual drinking scotch whiskey that evening ,and approximately 3/4 of a bottle was consumed by SFC Doe from the time of hisarrival until the time of his departure, approximately 0200 hours, 1 Jan 85. State-

ments of SFC Henry, SSG Johnson, and SSG Williams attest to the fact that SFC Doewas intoxicated and refused to take a taxi that was called by SFC Henry. (cont)

National Defense University, Ft McNair

0 oWWESS,,. NoWO ..e--. Ceoree E. R ussell_a C3_WAS _ 0_WASMOT2210" Poeo__fCW USA 1 --

AAATION wrmT AMOUIUS fINU ACO WST8 IUWAS MW OUSOU NP

USAGFt Mer VA 22211 O. Feb 85 Mr A n lg , .s

als sate ht o wa th onl inivd dking scotc whse tha evnn

and appoxmatl / fabtl was cons md by SFl Do rmte ieo i

R. r. Wilson "Same as Final Approvins Authority"

CPT AG 000-00-1I111 I

-~l ACIDIV P~ t I 130IIl WST3NICoimander.NSAoW, FtDf. . McNair, Wash, DC 20319 16 Ft Mcai

Approved. See ReverseBY AUTHORITY OF THE SECRETARY OF THE ARMY "NC. :IINST

LTC, AG

Adjutant GeneralD M N 261

19 Nr Q OP V VAOli- iNtCW=t

I W UA-1 -- 00

ACi'mmM' BiY~rim AIllW AlibU BillN IT Rr1IW* • Illl

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Reports of Survey~ and Line of Duty Determinations · 1/31/1992 · question and then check it against the given answer. If your answer to a question is incorrect, restudy the material