1 the army U LAWYER HEAmQUARTERS, DEPARTMENT OF THE ARMY Department of the Army Pamphlet Property Accountability: 27-50-75 Revised AR 735-11 March 1979 Major Theodore B. Borek Table of Contents Administrative Law Division, OTJAG Property Accountability: Revised AR 735-11 1 7 The revised Army Regulation 735-11,l Law Day 1979 (hereinafter referred to as AR 735-ll), con- TJAGSA Video and Audio Catalogue 8 Labor Law Item 8 tains property accountability procedures for Reserve Affairs Items 8 the Army that differ significantly from those Judiciary Notes 18 contained in AR 735-11, 1 May 74 (hereinafter 24 CLE News e 38 referred to as Old AR 735-11). Damages col- JAGC Personnel Section lectible will no longer be for the full amount of a loss, in most cases, but will be limited to one month's pay. Gross and simple negligence standards have been discarded in favor of a single definition of negligence. A new Report d Survey form has been adopted, and a new method of accounting for losses when there is no negligence has been instituted. Approval and appeal authorities usually are at the SPCMCA and GCMCA levels rather than higher authority as previously was the case. This article identifies changes of particular interest to attorneys who will be called upon to provide advice concerning the new procedures. Background. Changes in Army accountabil- ity procedures were prompted by a 1977 report of The Inspector General.2 Having conducted a survey of Army installations and divisions, The Inspector General concluded that dollar losses were so large that improved management of DA Pam 27-50-75 f 2 the accountability systems was needed. The 78.1° Loss is defined to be loss of, damage to, or Chief of Staff approved the report to include destruction of property of the United States implementation of 19 recommendations per- Government under control of the Army.l‘ For taining to property accountability. Sub- losses occurring before 1 January 1979 the pro- sequently, the Department of the Army Prop- cedures contained in prior editions of AR erty Accountability Task Force (DAPATAF) 735-11 will be applied. Therefore, Old AR was established to implement The Inspector 735-11 should be retained for use as necessary. General recommendation^.^ Insofar as the National Guard is concerned, The work of the DAPATAF included consid- revised NGR 735-11 will implement AR eration of both legal and policy questions and 735-11.12 However, revised NGR 735-11 has resulted in adoption of AR 735-11. Because not yet been promulgated. Consequently, until some of the procedures desired by the it is published existing National Guard proce- DAPATAF varied with DOD policy on prop- dures, which follow Old AR 735-11, will remain erty accountability,6 deviation from DOD in effect. 7200.10-M was requested.‘ DOD either ap- proved the deviations requested or determined The Limitation on Charges. The limitation on that the Army could implement procedures’ it pecuniary charges to one month’s base pay does desired without need for DOD approval. With * not apply to all losses of government property. respect to a proposal to limit pecuniary liability As reflected in paragraph AR 735-11, to one month’s pay, DOD approval was for 4-16b, the limitation does not apply to losses attribut- Army implementation on an interim basisnB able to accountable officers or for losses of DOD wide application may be considered if the personal arms and personal equipment.13 Be- Army procedures are effective. Consequently, cause collection from an accountable officer is / during 1979 the Army will be collecting data to based on 37 U.S.C. 1007(f); the full amount of evaluate the cost-effectiveness of this limita- loss attributable to such an officer is to be tion. charged. Arms and equipment losses collectible pursuant to 37 U.S.C. 1007(e), likewise must be charged in full. pamphlet refer to both genders unless the context indi- cates another use. The Army hwye7 welcomes articles on topics of inter- est to military lawyers. Articles should be typed double Commandant, Judge Advdcate spaced and submitted to: Editor, The Army Lawye+, Colonel Barney L. Brannen, The Judge Advocate General’s School, Charlottesville, Editorial Board Virginia, 22901. Because of space limitations, it is un- Colonel Dqvid L. Winton likely that articles longer than twelve typewritten pages can be published. If the article contains footnotes they Mdor Percival D. Park should be typed on a separate sheet. Articles should fot- Editor low A Ungfom System of Citation (12th ed. 1976). Man- Captain Frank G. Brunson, Jr. uscripts will be returned only upon specific request. Administrative Assistant No compensation can be paid for articles. Ma. Helena Daidone Individual paid subscriptions are available through the Superintendent of Documents, U.S. Government Print- ing Office, Washington, D.C. 20402. The subscription price is $9.00 a year, 8Oe a single copy, for domestic The Amy Lawyer is published monthly by the Judge and APO addresses; $11.25 a year, S1.00 a single copy, Advocate General’s School. Articles represent the opinions for foreign addresses. of the authors and do not necessarily reflect the views of The Judge Advocate General or the Department of the Iss t Army. Masculine or feminine pronouns appearing in this DA Pam 27-50-75 3 Although paragraph 4-16 b(2), when read in or more months. As noted in paragraph 4-23c, connection with Table 4-2 and paragraph this collection period may be extended by the 1-7ag, could be interpreted to require charging approving authority based on financial or per- the full amount of a loss for any weapon, it is sonal circumstances of the individual held li- intended that the one month base pay limitation able. Extension of the period of collection is be applied in cases of loss of nonpersonal discretionary with the approving authority, and weapons. Also, it is intended that depreciation the maximum period of extension is not limited. be allowed, pursuant to paragraph 4-17, for losses of equipment or weapons. This includes Remission of Indebtedness. In addition to the depreciation for per regulatory limitation on pecuniary charges, in- debtedness may sometimes be remitted pur- Equipment Loss. mant agraph 5-8. Remission of in- paragraph 1-7j’ in dehtedness is bas S.C. 4837(d) and is personal use or p e pay limitation.” individual and normally stored with personal applies only to enlisted members and effects of, or worn, or carried on, the person. Secretarial determination that it is Considering this definition, a factual determi- in the best interest of the United States. Each nation whether th of equipment shou in order to know whether the base pay limita- Table 4-2, AR 735-11, provides examples of how to calculate charges with respect to loss of arlhs and equipment (A&E) and other equip- ment and property (OEP) for military members tual determinatio an individual, pecuniary charges will be for the itation. The grade of a person on the date of the amount of any loss. On the other hand, if loss should be used to determine base pay.lg onsibility is nonpersonal, . charges will be, The grade of a person at the time of collection, subject to the one whether the individ officer or enlisted person. Paragraph 4-28a, which is based on 37 U.S.C. lOO?(c), provides for involuntary collection from enlisted person- loss amounts to less than one month’s base pay, nel of pecuniary charges as determined by a or to one month’s base pay if the OEP loss is report of survey. Collection against officers and greater than one month’s base pay.20 civilian employees, except as specifically iden- tified (i.e., for loss of arms and equipment and Negligence. Old AR 735-11 contained defini- for loss by accountable officers) is voluntary. 15 tions of simple and gross negligence.21 The Involuntary collection may not reduce the ac- standard to be applied usually was dependent tual pay received per month to less than one- upon whether responsibility for property was third of basic pay per month.16 Consequently, if personal or supwvisory.22 In the -new, regula- a full molith’s base be tion-, J‘tnonpersonal responsibility” is used in- charged, collection must be prorat tWb’ rVIsoi.3’ resfxinsibility’?, the defi- DA Pam 27-50-75 4 nition of personal responsibility has been re- tor’s conduct created a force which is in con- fined, and there is but one definition of negli- tinuous and active operation up to the time of gen~e.~~Negligence as now defined closely re- the harm, and lapse of time.28 Other factors sembles the definition of simple negligence con- have been considered in determining whether tained in old AR 735-11. Consequently, indi- an intervening force is a superseding cause. viduals with either personal or nonpersonal re- Some of these include the fact that the inter- sponsibility for property are held to the same vening force brings about a different kind of standard. Considering the principles in para- harm from that which otherwise would have graph 4-13, AR 735-11, a person may be found resulted from the actor’s negligence, the fact pecuniarily liable if his or her negligence or that the consequence of an intervening force willful misconduct is the proximate cause of any appears extraordinary, the fact that the inter- loss, damage, or destruction of Government vening force is operating independently of any property. The relationship of the person to the situation created by the actor’s negligence or is property is to be considered in determining not a normal result of that negligence, and the whether an act or omission is negligent, but fact that the operation of the intervening force relationship to property no longer determines is due to a third person’s act or omission.29 the standard of negligence to be applied.