RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070012929 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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, in effect, that the finding of financial liability made against him in the Financial Liability Investigation of Property Loss (FLIPL) 05-12 be reversed and that he be reimbursed the amount of $4,586.70 that was withheld from his pay.

2.  The applicant states, in effect, that the findings of FLIPL 05-12 were unjust for three reasons:  first, contrary to the provisions of Army Regulation 735-5, chapter 13, the record did not support finding that the loss resulted from negligence on his part; second, Army Regulation 735-5, chapter 13 procedures for using Army Regulation 15-6 investigation in a FLIPL were not followed; and third, the approving authority relied on evidence not in the record when determining financial liability.

3.  The applicant provides; a copy of DD Form 200 (FLIPL) for inquiry/ Investigation Number 05-12 (with enclosures); a copy of his legal review of FLIPL; a copy of his request for reconsideration and rebuttal; copies of his Leave and Earning Statements (LESs) from May to October 2006; and additional documentation pertaining to his case, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a major at Fort Leavenworth, Kansas.

2.  On 3 November 2004, 7th Corps Support Group (CSG) Policy Memorandum Number 16, Hand Receipt Procedures, was published by the Commander, Headquarters, 7th CSG.  The purpose of the memorandum was to outline requirements for hand receipting equipment within the 7th CSG.  It was the intent of this policy to establish procedures to ensure that government property was accounted for as prescribed by Department of the Army (DA) regulations and local policies.  To ensure that young officers were gaining the experience needed to excel in the later stages of their careers, Commanders would designate Platoon Leaders as Sub-Hand Receipt Holders for organizational equipment.  The Sub-Hand Receipt Holders would ensure equipment was further hand receipted down to the user level.  All procedures outlined in Army Regulation 710-2 and DA Pamphlet 710-2-1 were to be followed. 




3.  In December 2004, the applicant assumed command of 317th Maintenance Company.  On 17 December 2004, the supply specialist signed for all RT (Receiver Transmitter)-1523Ds (SINCGARS [Single Channel Ground Air Radio System]) from the applicant.  

4.  On 27 June 2005, the C & E (Communications and Electronics) Chief conducted a sensitive item inventory and discovered three radios missing.  

5.  On 1 July 2005, the Battalion Commander, 71st Corps Support Battalion, recommended a Financial Liability Investigation (Report of Survey [ROS]) be conducted according to Army Regulation 735-5.  An investigating officer (IO) was appointed pursuant to regulation to conduct an informal investigation of the loss of the three radios.

6.  On 2 August 2005, a FLIPL was prepared. The IO confirmed that the initial loss of three radios had occurred.  He simply stated those hand receipt/ accountability procedures outlined in cited regulations were not followed.  The   IO found that the negligence was on the part of the commander [applicant].  The responsibility for improper accountability resided with the commander, (command responsibility), resided the C & E officer, supervisory responsibility, and the communications specialist, (direct responsibility).  The commander did not follow the basic polices and procedures outlined in the cited regulations and polices. 

7.  The IO recommended that: 

	a.  a 100 percent inventory be conducted after returning from field exercises.  This should include COMSEC (Communications and Security) equipment stored in or out of vehicles; 

	b.  Institute a Command Supply Discipline Program at the battalion/company level.  This program would ensure basic policies and procedures for accounting for US Army property published in AR 735-5, AR 710-2, and AR 710-2-1 are followed:

	c.  Enforce the 7th CSGM Memorandum Number 16, Hand Receipt Procedures, dated 3 November 2004.  This will allow Platoon Leaders, or Warrant Officer in Platoon Leaders positions, to become sub-hand receipted holder for organizational equipment.  This would also ensure equipment is further sub-hand receipted down to the user level;



d.  Review hand receipts during inventories.  This review can be conducted during monthly sensitive item and 10 percent inventories.  A monthly review would help ensure all equipment is sub-hand receipted down to the user level and kept current; 

	e.  Hold the commander responsible for all three missing radios.  As commander, the applicant did not follow the basic policies and procedures for accounting for US Army property published in AR 735-5, AR 710-2, AR 710-2-1, 7th CSG Policy Memorandum Number 16 and company SOP;

	f.  Hold the C&E officer responsible for all three radios.  The C&E officer and the Communications Specialist supervisor did not follow the basic policies and procedures for accounting for US Army property.  Recommend that administrative action be taken in a form of a Letter of Reprimand (LOR); and

g.  Hold the Communications Specialist responsible for two radios not properly sub-hand receipted down to the user level.  He did not follow the basic policies and procedures.  

8.  On 16 August 2005, the Trial Counsel, Office of the Staff Judge Advocate (SJA), completed a legal review of the FLIPL 05-12 and determined the investigation to be legally insufficient.  The trial counsel listed administrative and procedural errors that should be addressed by the survey officer prior to approval of the FLIPL. 

9.  On 18 August 2005, the applicant was notified that he was being recommended for charges of financial liability to the US Government, in the amount of $4,586.70, for the loss of Government property.  He acknowledged receipt of the charges against him and was informed that he may submit a rebuttal to the IO’s recommendation. 

10.  On 25 August 2005, the applicant submitted a rebuttal to the FLIPL.  He disagreed with the IO‘s recommendation which held him financially liable.  In summary, he concluded that he had receipted the radios to the communications specialist, and charged the C & E officer with supervising him and the communications hand receipt.  Even if the communications specialist had followed proper procedures, there was still the potential to lose the radios because of intervening acts by third parties.  In the case of these three radios, such intervening acts were the direct cause of their loss. 



11.  On 31 August 2005, the Commander, 7th CSG, notified the applicant that financial liability had been assessed against him by the United States Government in the amount of $4,586.70 for the loss of Government property investigated under subject ROS.  The commander informed him of his rights relative to the matter according to Army Regulation 735-5, paragraph 13-40.

12.  On 13 September 2005, the applicant requested reconsideration due to the legal errors.

13.  On 11 October 2005, the Administrative Law Attorney prepared a memorandum for the Commander, 7th CSG, Subject:  Legal Review of Request for Reconsideration.  He reviewed in detail both the subject financial liability investigation and the request for consideration.  There was no legal objection to the report.  He concluded that, as a result, there was a legal basis for finding the applicant negligent and for finding that his negligence constituted the proximate cause of the loss.

14.  On 14 October 2005, the Commander, 7th CSG reviewed the applicant’s appeal for reconsideration.  The commander determined that the assessment of financial liability should continue.  She provided a detailed explanation in her memorandum and forwarded her comments to the Commander, 1st Armored Division.  

15.  On 7 November 2005, Commander, 1st Armored Division reviewed the applicant’s appeal for reconsideration of FLIPL 05-12.  His appeal was denied by the appellate authority.  The decision was final and no further request for reconsideration was allowed.  The Commander informed the applicant that he may appeal to this Board for relief.

16.  On 24 August 2007, the applicant’s counsel provided a detailed memorandum, 25 pages, in support of the applicant’s case.  Counsel described procedural errors that occurred during the investigation.  Counsel stated that when the issue was raised in the applicant’s request for reconsideration, the legal advisor opined that under Army Regulation 735-5, neither senior commander was personally responsible for the lost radios and therefore were not required to remove the IO.  The basis for the applicant’s objection was not AR 735-5 but AR 15-6.  The legal advisor was not responsive to the applicant’s objection.

17.  The applicant provided several copies of his LESs which shows that $764.45 was deducted from his pay from May 2006 to October 2006, 6 months, for a total of $4,586.70.  
18.  In the processing of this case, an advisory opinion was requested of the Deputy Chief of Staff for Logistics, G4. 

19.  An advisory opinion was provided on 12 October 2007.  The G4 stated that the applicant exercised command responsibility over the loss of three radios.  His command set a sufficient climate of proper use, care, and custody of government property.  The radios were sub-hand receipted to the best of the applicant's knowledge.  It was not established that the applicant was aware of the many swaps and issues of SINCGAR radios being made by others.  The applicant acted upon hearing of the loss and other actions.  The IO was incorrect and there was no requirement to have all equipment on the property book hand receipted to the user.  The applicant was not totally within the 7th CSG’s memorandum #16 because a platoon leader was not the sub-hand receipt holder; however, there was no platoon leader for the company communications section.  The only company communications individual was the sub-hand receipt holder.  G4 recommended that the financial liability assessed against the applicant be cancelled and he be refunded $4,586.70.

20.  The opinion was forwarded to the applicant for his acknowledgement on 18 October 2007 and he concurred with the opinion on 26 October 2007.

21.  Army Regulation 735-5 prescribes basic policies and procedures in accounting for Army property.  Chapter 13 of the regulation states that the Government may impose a finding of pecuniary liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage, or destruction of Government property.  Negligence is defined as simple or gross, with simple negligence being the failure to act as a reasonable prudent person would have acted under similar circumstances.  Gross negligence is defined as an extreme departure from the course of action to be expected of a reasonable prudent person, all circumstances being considered, and accompanied by a reckless, deliberate, or wanton disregard for the foreseeable consequences of the act.  Willful misconduct is defined as any intentionally wrongful or unlawful act dealing with the property concerned.  Direct responsibility is defined as the obligation of a person to ensure that all Government property for which he has receipted for is properly used and cared for and that proper custody and safekeeping is provided.  Command responsibility is the obligation of a commander to ensure that all Government property within his command is properly used and cared for, and that proper custody and safekeeping is provided.  Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage 
and, without which, loss or damage would not have occurred.

22.  AR 735-5 states that in order to assess liability, the approving authority must find:  (1) the person to be held liable had a duty/responsibility to take care of the property; (2) the person failed to carry-out that duty (negligence); and (3) the person's failure led to the loss (proximate cause).  The proximate cause is defined as the cause, which in a natural and continuous sequence of events unbroken by a new cause, produced the loss or damage.  Without this cause, the loss or damage would not have occurred.  It is further defined as the primary moving cause, or the predominate cause, from which the loss or damage followed as a natural, direct, and immediate consequence.  The approving authority will notify the person to be charged that financial liability has been assessed.  The notification will be in memorandum format and will inform the person they have the right to request reconsideration of (appeal) the approving authority's decision. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that an inventory was conducted by the C&E Chief and discovered three radios missing.  A FLIPL was initiated.  The IO found the applicant liable basically because the improper accountability resided with him as the commander.  He did not follow the basic polices and procedures outlined in the cited regulations and polices.  The IO recommended pecuniary liability for the total loss of the three radios.  The applicant appealed the financial liability against him and requested reconsideration which was also denied.  The decision was final and no further request for reconsideration was allowed.  He was informed to apply to this Board for relief.

2.  The FLIPL IO found the applicant violated 7th CSG Policy Memorandum Number 16 (Hand Receipt Procedures) because he did not hand receipt his communications equipment to a platoon leader.  However, there was no platoon leader assigned to the C&E Section; there was only a Specialist.  The applicant hand receipted the radios to the Specialist and appointed a C&E Chief Warrant officer to provide oversight.  The G4 advisory opinion pointed out that this was, under the circumstances, adequate compliance with the Policy Memorandum

3.  In his Findings and Recommendations, the FLIPL IO found that the applicant violated policy, but the IO never associated that violation of policy as the proximate cause of the loss of the radios.  In fact, the IO never affirmatively identified the proximate cause of the loss, instead he loosely attributed it to poor supply discipline.  Without showing that the applicant's actions – presumably not hand receipting the radios to a Platoon Leader – were the proximate cause of the loss, he may not be held liable.

4.  The G4 reviewed the applicant’s case and recommended that the financial liability assessed against him be cancelled and that he be refunded $4,586.70.  In the interest of justice and equity, this recommendation should be granted and the applicant should be granted relief from financial liability and his money refunded to him.

BOARD VOTE:

___LB___  ___PMS_  ___SP___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that upon review, FLIPL, 05-12 was found to be incorrect and that the applicant is found to be not liable for the loss of the three radios.

2.  Based on the above correction, any collection of monies based on the incorrect finding is erroneous and should be refunded to the applicant.




_____Shirley L. Powell_____
          CHAIRPERSON




INDEX

CASE ID
AR20070012929
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . ACTIVE DUTY
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
128
2.

3.

4.

5.

6.