RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007 
	DOCKET NUMBER:  AR20060014268 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Susan A. Powers

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests to be relieved from all financial responsibility for the loss of Government property totaling $4,586.70.  Also, he requests that all monies garnished from his pay be refunded.

2.  The applicant states, in effect, that the Financial Liability Officer (FLO), Appointing Officer, and Approving Authority committed a legal error by failing to follow regulatory guidance.  He states that the FLO failed to interview thoroughly and competently all individuals who could have contributed to his investigation.

3.  He states, in effect, the FLO did an incompetent job, the appointing and approving authority failed to fulfill the responsibilities of the regulation and the appeal authority neglected to follow the regulation.  He states that the appeal authority should have obtained a legal review of his request for reconsideration from a lawyer other than the lawyer that did the initial review.  He states he can not assume that a legal review was done since it was not attached to the documents.

4.  The applicant provides:

     a.  a copy of a Notice of Recommendation of Financial Liability;

     b.  a copy of the applicant's Rebuttal to the Investigating Officer findings;

     c.  a copy of a Notice of Decision of Approving Authority;

     d.  a copy of the applicant's request for reconsideration; and

     e.  a copy of a Notice of Decision of Appeal Authority.

CONSIDERATION OF EVIDENCE:

1.  The applicant military records show that he was appointed as a Reserve Commissioned Officer of the Army in the grade of second lieutenant on 23 May 1998.

2.  He is currently serving as a Company Commander with the U.S. Army Recruiting Battalion, New England, Topsham, Maine.

3.  From 2-13 June 2005, the applicant was part of a joint inventory of command property for A Battery, 1st Battalion, 30th Field Artillery.  At that time, a Financial Liability Investigation of Property Loss (FLIPL) was conducted.  The FLO states that there were several items that were added to the command inventory without the command review.

4.  On 29 September 2005, the FLO recommended that the applicant be charged with financial liability to the U.S. Government, in the amount of $80,695.67 for the loss of Government property.  The loss to the government was recorded as  
$76,108.97 and the amount charged to the applicant was $4,586.70.

5.  The applicant was instructed to complete item 16a-h (Individual Charge) of the DD Form 200 (Financial Liability Investigation of Property Loss).  However, the records show that the applicant did not complete or endorse the form, at that time.

6.  Instead the applicant responded with a statement of objection.  In his statement, it was stated that the unit supply section was facing some challenges with a large amount of equipment awaiting turn-in and significant amount of equipment being realigned from a reorganization of the regiment.  He states, in effect, that the challenges were addressed during and following the May-June 2004 Change of Command inventory.

7.  He states, in effect, that he lost his executive officer and supply sergeant in July 2004.  On August 2004, the unit conducted a 100 percent inventory of the property in order to support a transition between supply "NCOICs" and to properly sub-hand receipt items still on the commander's sub-hand receipt.

8.  On October 2004, the unit hired a civilian to help with the supply systems.  The civilian noted several discrepancies on the October's cyclic inventory that were resolved by sub-hand receipt holders at the time.

9.  On January 2005, a cyclic inventory was conducted and a large number of discrepancies were discovered, so the unit requested an extension to conduct a 100 percent inventory.  The "ULLS-S4" system crashed at that time which complicated their effort to conduct the 100 percent inventory.

10.  On February 2005, a new supply sergeant was assigned to the unit.  The supply sergeant reformed the supply program from the bottom up and completed a 100 percent inventory in March 2005.

11.  The supply sergeant found a very large discrepancy.  He found that a large part of the problem involved items being added to the property book that were found on lateral transfer documents from the Battalion supply.  They were executed and signed for by a private first class/pay grade E-3 between October 2004 and January 2005.
12.  The supply sergeant found that no other supply personnel claimed knowledge of or reviewed the documents listed as property.  Also, the supply sergeant found that no posting of documents were produced and a large volume of supply documentation could not be found.  

13.  On 11 April 2005, a Report of Survey was prepared but it was deferred until completion of the Change of Command inventory which was now scheduled for May 2005.  As of that date, the unit had accounted for all but the $80,695.67 of the missing property.

14.  The applicant continues by stating that the regulation requires that a FLO's findings be supported by evidence and must be factual conclusions.  He states there was seemingly no effort to comply with the regulation.  He states that the FLO found that he did not dedicate enough time and resources to his Command Supply Discipline Program (CSDP).  The applicant charged that there is no established factual basis upon which to make such a finding.  The AFLO found that the few sworn statements confirm that "the battery supply system was knowingly broken."  He states "I certainly do not deny that I had serious supply system problems during my command."

15.  He further states, "In order to find me financial liable, the FLO must find that my negligence caused the loss of government property for which I was responsible.  My responsibility, of course, was based on command.  Although the regulation does not elaborate on how to weigh, in my case, command responsibility in determining the reasonableness of my conduct as commander, I submit that command responsibility should have the highest threshold for a determination of negligence.  In contrast, the standard for a determination of negligence should be lower for one with custodial or personal responsibility.  That is, there should be fewer excuses for someone with custodial or personal responsibility to lose government property."

16.  "In other words, the standards for a determination of negligence should become more stringent as the control one has over property becomes less immediate.  One has all control with personal responsibility and the least control with command responsibility.  It is in the context that I believe my conduct as commander should be assessed."

17.  In a sworn statement by the incoming commander, dated 22 July 2005, he states, in effect, he was given ample time to inventory all of the property in the unit and at the conclusion of the inventory, it was discovered that approximately 1.2 million dollars of equipment was unaccounted for.  He states, in effect, that the date of his Change of Command ceremony was postponed to allow the applicant to search for the missing equipment.
18.  He states that the applicant was able to find five-hundred thousands dollars worth of property with like items that were not recorded on the property book.  He states that the applicant was able to find some other property, but could not find the $81,000.00 dollars worth of property which was listed on the Report of Survey.  Included in the missing property were sensitive items.  He further states, in effect, that one thing he noticed during the inventory and discovery of the lost property was a "business as usual attitude on the part of the applicant (outgoing commander)."

19.  In a sworn statement, dated 22 July 2005, an employee was asked "were you on medical leave from July 2004 to March 2005 and the employee answered yes."

20.  In a sworn statement by the supply sergeant, dated 26 July 2005, he states, in effect, that he found no hand receipts were done.  He conducted a 100 percent inventory and informed the applicant of the problem.  He states that while conducting his inventory he found that the supply clerk threw away the old hand receipts.  He states that once he completed the inventory there was seven million dollars worth of equipment missing.

21.  The supply sergeant further states that he started a Report of Survey and he informed the applicant.  Also, he told the regiment S-4 about the Report of Survey, but he was told to wait until the Change of Command inventory.  He conducted a second Report of Survey and he could not find $80,000.00 worth of equipment.  In addition, the supply sergeant visited the "DOL, CPBO," and the motor pool to try to locate the missing equipment.  The supply sergeant states that the supply room was in a state of confusion and their "filing system was in everybody [sic] desk not in files, the warehouse was over pack [sic] with equipment that needed to be turn [sic] in, and the supply personnel was always on detail or duty."

22.  In a sworn statement by the investigating officer, dated 1 August 2005, he states, in effect, that he was assigned the Report of Survey on 30 June 2005, when he took the sworn statements from the incoming commander, the supply sergeant, and the civilian employee.  He states that he interviewed the applicant telephonically and he was told by the applicant that the cyclic inventories and sensitive items inventories were conducted.  He states that the applicant advised him that the missing property had been added to his property book after each inventory and as a result he found no discrepancies and no excess property.

23.  He states that the applicant advised him that in October 2004, he discovered that all of the required hand receipts were missing.  In December 2004, the applicant had tried to reconstruct the hand receipts.  In March 2005, the applicant conducted a 100 percent inventory of his property book and all of his hand receipts were there, because he was rebuilding his database.  He states when new property was added to his property book, the required paperwork was brought to him by the private first class, so he does not know why it is missing.  "He did not state that he inventoried this new property."

24.  He states that in January 2005, the applicant discovered the "SINGARS Radios and ANCDs" were missing.  The applicant ordered an extensive search of the Battery area for those items which produced a negative result.  The applicant then notified his Battalion executive officer and his Battalion commander.  Another search was ordered by the Battalion commander which produced a negative result.  The Battalion commander ordered a daily progress update on the ongoing search and the applicant stated that he complied.

25.  The investigating officer told the applicant that his supply sergeant told him upon arrival to the unit he found absolutely no control systems in place and that the supply room was in utter chaos.  He asked the applicant for his rebuttal and the applicant responded "that is a fair assessment."  He asked the applicant why, and the applicant replied by saying "he was short supply personnel and all of his accountability documents had been lost and he had not done any shortage annexes, but each hand receipt holder had a folder which contained hand receipts.  He stated that he had placed extensive command emphasis on his CSDP.  The applicant was then asked why there was no system in place if that was the fact.  The applicant responded "I don't know."

26.  On 13 February 2005, the Battalion commander agreed with the recommendation of the FLO that the applicant be held liable for the loss of the government property in accordance with Army Regulation 735-5 (Policies and Procedures for Property Accountability), Appendix B-2a.

27.  In a sworn statement from a representative at CPBO, dated 23 August 2005, it states that from January-May 2005, CPBO did not receive any cyclic, weapons, or sensitive items reports as requested from A Battery, 1st Battalion, 30th Field Artillery.

28.  On 9 November 2005, the FLO responded to the applicant's rebuttal.  The FLO states, in effect, that the applicant was the commander and he was personally responsible for not only the property on the battery hand receipt, but also, he was responsible for controlling and maintaining property accountability systems.  The FLO further states that he believes the applicant was the sole responsible party and he was negligent in the loss of his property.

29.  In a letter from the Administrative Law Attorney, dated 29 December 2005, it states that the applicant's financial liability investigation was found legally sufficient for further action.  He was being held accountable and was notified of all his rights and he chose to submit a rebuttal.

30.  On 14 February 2006, the applicant was notified by his commander concerning his rights under the provision of Army Regulation 735-5, paragraph 13-42.

31.  On 27 March 2006, the applicant requested reconsideration of the assessment of financial liability in the amount of $4,586.70.

32.  On 11 April 2006, the applicant's commander reviewed the request for reconsideration and made the determination that the applicant should still be assessed financial liability based on the fact that there is no apparent legal error, no new evidence, and the applicant provided nothing that has not already been considered under the previous investigation and rebuttal.

33.  On 22 June 2006, the applicant received notification that his reconsideration was denied.

34.  An advisory opinion was provided to the Board by the Office of the Deputy Chief of Staff, G-4, on 19 March 2007.  In that advisory opinion, it was recommended that the Board not make any change to the financial liability assessed against the applicant by the approving authority.  The investigation found that the applicant's negligence resulted in the loss of the government property.  The applicant has failed to produce any evidence that he observed his subordinates to ensure their activities contributed to the proper custody, care, use, and safekeeping of all property within his command.  The recommendation to charge the applicant for the loss was found to be legally sufficient.

35.  On 15 April 2007, the applicant submitted a rebuttal to the advisory opinion.  In his rebuttal he states, in effect, that the memorandum serves no purpose other than to "rubber stamp" the financial liability investigation of property loss which he is appealing.  In his rebuttal he repeated allegations that the investigating officer, approving officer, and the appeal authority failed to either examine or chose to ignore his submissions in "toto."

36.  Army Regulation 735-5 provides in pertinent part, that a financial liability investigation of property loss documents the circumstances concerning the Loss, Damage, or Destruction (LDD) of Government property and serves as, or supports a voucher for adjusting the property from accountable records.  It also documents a charge of financial liability assessed against an individual or entity, or provides for the relief from financial liability.  

37.  Department of the Army Pamphlet (DA PAM) 735-5 (Financial Liability Officer's Guide) provides that a Command responsibility is the obligation of a commander to ensure all Government property within his or her command is properly used.  This includes providing for the proper custody, safekeeping and disposition of the property.  Command responsibility is inherent in all positions of command and cannot be delegated.  It is evidenced by assignment to a command position at any level.  Command responsibility includes ensuring that security is provided for all property within the command, whether the property is in use or in storage; observing subordinates to ensure their activities contribute to the proper use, care, custody, safekeeping and disposition of all property within the command; enforcement of all security, safety, and accounting requirements; and taking administrative and/or disciplinary actions when necessary.

38.  This same DA PAM provides that direct responsibility is the obligation of a person to ensure all Government property, for which he or she has receipted, is properly used and cared for.  It includes providing proper custody, safekeeping and disposition of the property.  Direct responsibility results from assignment as an accountable officer, the receipt of formal written delegation, or the acceptance of the property on a hand receipt from an accountable officer.  Loss is the dispossession of, damage to, or destruction of U.S. Government property under the control of the Army.  Loss is also, a shortfall in accountability.  Property is considered lost when it cannot be found, or accounted for, by the last responsible person in the audit trail.

39.  Negligence is the failure to act as a reasonable and prudent person would have acted under similar circumstances.  An act or omission that a reasonable and prudent person would not have committed or omitted under similar circumstances and which is the proximate cause of the loss of, damage to, or destruction of Government property.  Failure to comply with existing laws, regulations, or procedures may be considered as evidence of negligence.  In each of the following cases, a reasonable and prudent person with a normal intelligence quotient could foresee that a problem could result from his or her action.  When the person did not exercise the care required by the circumstances, he or she was negligent.  For example, the incoming commander did not have time to conduct a joint inventory with the outgoing commander before accepting command, and did not ensure that unit property was sub-hand receipted during his or her tenure as commander.  Upon his or her departure from command, the joint inventory between him or her and the incoming commander revealed several shortages of unit property.




40.  A determination that a person is negligent or has committed an act of willful misconduct is not alone sufficient cause to hold a Soldier financially liable.  The evidence must also show the willful misconduct or negligence was the proximate cause of the LDD.  Proximate cause is the cause that, in a natural and continuous sequence, unbroken by a new cause, produces the loss or damage, and without which the loss or damage would not have occurred.

DISCUSSION AND CONCLUSIONS:

1.  The FLO, in summary, found that the loss of the property was directly attributable to an inadequate accountability process within the unit and that the applicant failed to take adequate steps to fix the problems before the losses occurred.  As a result, his inaction was a proximate cause of the loss.

2.  The applicant's statements were carefully considered.  However, his statements, without evidence, are not sufficient to relieve the applicant of his sole responsibility for the loss of government property. Further, his submission does not sufficiently rebut the findings and conclusions of the FLO.

3.  If there was negligence on the part of someone else other than the applicant (previous commander), there is no evidence of administrative and/or disciplinary actions taken against them for the loss of the government property.

4.  The applicant was the outgoing commander and therefore was responsible for all property assigned to his command, whether the property was sub-hand receipted or not.

5.  If there was proof that proper cyclic inventory was conducted and a proper filing system was in place and action was taken to rectify shortages or loss, the government property the applicant was responsible for would have been accounted for and documented.  Since there is no record of accountability for the loss of the government property, the applicant (as the previous commander) was properly held liable for the loss.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to correction of his records to show relief of his financial responsibility of government property totaling $4,586.70.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___sap__  ____eem   ___kan___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




___________Kathleen A. Newman____
          CHAIRPERSON




INDEX

CASE ID
AR20060014268
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070710
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.