RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  8 May 2008
	DOCKET NUMBER:  AR20070015441 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 he be refunded $2,073.30 for a debt incurred as a result of a Financial Liability Investigation of Property Loss.   

2.  The applicant states, in effect, that he recently incurred a debt ($2,073.30) and $700 was taken from his pay check on 1 November 2007.  He contends that his case/appeal is still pending, that his former unit skipped steps in the legal process, and that money was taken from his pay check.  He states that prior to his departure from Iraq, he turned in his night vision goggles as instructed and he has no knowledge of what might have happened to them in the months after he turned them in.  He contends that an investigation was initiated, that he was unable to respond to inquires due to training requirements, and that when he completed his training, he responded but was told it was too late.  He stated he prepared a rebuttal and turned it in to the Judge Advocate General, but he never received any type of notification or update on his rebuttal until his pay was reduced. 

3.  The applicant provides a letter of concern; post and unit clearing records; a rebuttal, dated 25 September 2007; an enlisted record brief; memoranda; DA/DD forms; and numerous exhibits outlined on a statement titled “List of Exhibits.” 

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of sergeant. 

2.  A DD Form 200 (Financial Liability Investigation of Property Loss) shows an investigation of property loss (night vision goggles) was conducted and on 6 May 2007 the Financial Liability Officer found the applicant liable for the lost property.  It is noted that the investigating officer’s findings and recommendations memorandum, dated 6 May 2007, states the applicant initially indicated he turned the night vision goggles in to the Rear Detachment at Fort Drum, New York and then he submitted a statement stating he turned the night vision goggles in to the Headquarters and Headquarters Company armorer in Iraq.  The appointing authority approved the recommendation on 10 May 2007.  

3.  On 31 May 2007, a trial counsel found the Financial Liability Investigation of Property Loss to be legally sufficient.  He opined as follows.  The evidence supported the recommendation for assessment of financial liability against the applicant.  The preponderance of the evidence demonstrated that the applicant had personal, custodial, and direct responsibility for the night vision goggles while in Iraq.  Further evidence shows that the applicant was negligent in failing to reasonably and properly account for them upon his departure to the United States.  Based upon the applicant’s age, rank, and experience, he should have taken reasonable and adequate steps to secure this sensitive item.  By failing to properly account for the night vision goggles, the applicant’s simple negligence was the proximate cause of the loss.    

4.  On 7 June 2007, the applicant was notified that he was being recommended for charges of financial liability to the United States Government, in the amount of $2,073.30 for the loss of Government property.  This letter states, in pertinent part, that “You have the right to – Submit a statement and other evidence to the approving authority in rebuttal of my recommendation.  The approval authority must consider any rebuttal statement you submit in making his determination of financial liability” and “Time constraints for submission of a rebuttal are contained in AR [Army Regulation] 735-5, paragraph 13-35b.  Given that you are currently in the Special Forces Qualification Course in the United States, I will grant you an extra 15 days on top of the allotted 30 days in order for me to receive the requested documentation.”   

5.  On 25 September 2007, the applicant submitted a rebuttal statement of the assessment of financial liability recommendation.  

6.  In the processing of this case, a staff advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4.  The opinion recommends that the financial liability assessed against the applicant be canceled and that he be refunded any monies deducted from his pay.  The opinion points out that the applicant’s sworn statement states he turned the night vision goggles over to the unit armorer as directed by a second lieutenant.  The unit Standing Operating Procedure developed by the second lieutenant directed that all night vision goggles remain in country because of shortages and were not to be redeployed to the home station with the Soldier leaving the theater.  The investigating officer’s facts failed to show that the loss was caused by the applicant and that he was the only individual who had hand receipt responsibility at the time of the stated loss.  The applicant departed the unit three months before the unit armorer or the platoon leader discovered the night vision goggles were missing.  The applicant departed Iraq on 16 January 2007 and the lost night vision goggles were not discovered missing until April 2007, three months later.  If there had been sensitive item inventories conducted at the end of January, discovery of the loss could have provided the investigating officer a more definite cause of who was responsible for the loss.  The evidence does not support the recommendation for assessment of financial liability against the applicant.    

7.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond with the given time frame.

DISCUSSION AND CONCLUSIONS:

1.  Although the Financial Liability Officer found the applicant liable for the lost property, it appears the evidence failed to prove convincingly that the loss was caused by the applicant or that the applicant was the only individual who had hand receipt responsibility at the time of the stated loss.  

2.  As pointed out in the advisory opinion, the applicant departed the unit in January 2007, three months before the night vision goggles were reported missing.  If sensitive item inventories had been conducted at the end of January 2007, discovery of the loss could have provided the investigating officer a more definite cause of who was responsible for the loss.  It appears the advisory opinion reasonably concluded that too much time passed between the applicant’s alleged loss of the equipment and the actual discovery of the loss, thereby casting doubt on the determination that the applicant was responsible for the loss.   

3.  Based on the foregoing, it would be equitable to grant the applicant’s request for relief.      

BOARD VOTE:

XXX_____  __XXX__  ___XXX_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to show he was not found financially liable for the lost property and to refund to him any monies deducted from his pay (up to $2,073.30) as a result of the erroneous Financial Liability Investigation of Property Loss.   



      ___          XXX_____
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070015441


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
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