IN THE CASE OF:
BOARD DATE: 10 June 2008
DOCKET NUMBER: AR20070018718
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his financial liability related to a Financial Liability Investigation of Property Loss (FLIPL) initiated on 19 December 2005 be determined to be invalid and all monies collected for this debt be refunded to him.
2. The applicant states that he was unjustly charged with an assessment of financial liability without the due process prescribed by Army Regulation 735-5. He was never notified of the financial liability officers intent to recommend a charge for financial liability and as such was not afforded any of the rights outlined in Army Regulation 735-5. He attempted to contact the financial liability officer in order to obtain a copy of the completed FLIPL but was unable to make contact. Similarly, he was unable to contact the approving authority. He submitted an Inspector General (IG) Action Request for assistance. The New York Army National Guard (NYARNG) IG contacted the Defense Finance and Accounting Service (DFAS) IG. The DFAS IGs office contacted the Kuwait IG and the Federal Records Center (FRC), where the hard copy FLIPLs are supposed to be stored upon completion. Neither the Kuwait IG nor the FRC were able to produce any paper trail of the FLIPL to verify that he was afforded the proper due process in this matter. According to the IGs who investigate this matter, the FLIPL was never assigned an accession number or a box number, which would be the only means of tracking down the hard copy.
3. The applicant provides a letter, dated 3 March 2008, from him to his Member of Congress; a letter, dated 4 March 2008, from the applicants Member of Congress to the Army Review Boards Agency; a DA Form 7531 (Checklist and Tracking Document for Financial Liability Investigations of Property Loss); two letters, dated 14 November 2006 and 12 June 2007, from the applicant; a DA Form 1559 (Inspector General Action Request); a DD Form 200 (Financial Liability Investigation of Property Loss) with related attachments, partially completed; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 May 2006; and a copy of his leave and earnings statement (LES) for a check date of 17 July 2006.
CONSIDERATION OF EVIDENCE:
1. After having had prior enlisted service in the ARNG, the applicant accepted appointment in the ARNG as a second lieutenant on 22 September 1995.
2. The applicant was ordered to active duty effective 19 November 2004. He arrived in Iraq on 18 January 2005 where he served as the company commander of the 145th Maintenance Company.
3. The applicant, as the company commander, initiated a DD Form 200 on 19 December 2005, in regard to a utility truck and shop equipment, preparatory to redeploying to the States. The applicant noted that both items in question were present but had completely different serial numbers.
4. The applicant provided a DA Form 7531. This form (a checklist consisting primarily of a series of blocks to be checked Yes or No) was completed only through section (B)(Initiator). Sections (C) (Accountable Officer), (D) Appointing Authority or Approving Authority as Appropriate), (E) (Financial Liability Officer), (F) (Appointing Authority), (G) (Approving Authority), (H) (Staff Judge Advocate), and (I) (Approving Authority) were not completed.
5. The applicant departed Iraq on 19 January 2006. He was released from active duty on 11 May 2006.
6. The applicant provided an LES for a check date of 17 July 2006 that shows he had a Lost/Damaged Government Property debt originally in the amount of $5,115.90.
7. On 16 September 2006, the applicant requested IG assistance. He made the same contentions regarding due process he makes to this Board.
8. On 3 March 2008, the NYARNG IG informed the applicant and a Board staff member that the DFAS IG, the Kuwait IG, and the FRC were unable to locate the FLIPL in question.
9. Army Regulation 735-5 (Policies and Procedures for Property Accountability), dated 28 February 2005, chapter 13, states the financial liability investigation of property lost prescribed by the Department of Defense Financial Management Regulation, volume 12, chapter 7, replaces the report of survey system. Paragraph 13-7 states the initiator of a FLIPL will normally be the hand receipt holder or the accountable officer. Paragraph 13-11 states the initiator will forward FLIPLs, with exhibits, in original with copies to the accountable officer for assignment of a document/voucher number. Paragraph 3-20 states the DA Form 1659 (Financial Liability Investigation of Property Loss Register) and the files of approved financial liability investigations of property loss are normally maintained at the headquarters of the approving authority. Exceptions are allowed when the logistics staff offices are consolidated at a command level above the approving authority. The FLIPL register may be maintained at a centralized office on the installation, providing inquiry/investigation numbers are assigned to all FLIPLs initiated for those organizations supported.
10. Army Regulation 735-5, paragraph 3-34, states the financial liability officer will give any individual, against whom he or she makes a recommendation to assess financial liability, a chance to examine the FLIPL after the findings and recommendations have been recorded on the DD Form 200 and the opportunity to make a rebuttal statement in his or her behalf. A copy of the memorandum explaining the individuals rights will be attached to the FLIPL as an exhibit.
DISCUSSION AND CONCLUSIONS:
1. The applicant, as a company commander preparing to redeploy from Iraq to the States, initiated a DD Form 200 on 19 December 2005 in regard to two items. He departed Iraq on 11 January 2006. In July 2006, he noted that an LES indicated he had a Lost/Damaged Government Property debt, the original amount of which was $5,115.90.
2. At least as early as 16 September 2006, when he requested IG assistance, the applicant contended that he was unjustly charged with an assessment of financial liability without the due process prescribed by Army Regulation 735-5.
3. The NYARNG IG verified that the DFAS IG, the Kuwait IG, and the FRC were unable to locate the FLIPL in question.
4. Army Regulation 735-5 states that the DA Form 1659 and the files of approved financial liability investigations of property loss are normally maintained at the headquarters of the approving authority, or they are maintained at higher-level offices. The completed FLIPL that found the applicant to be financially liable for those two items should have been available for review when the NYARNG began its efforts to locate it. The fact the completed FLIPL was not filed where it was supposed to be filed raises reasonable doubts that any of the other actions taken to complete the FLIPL were taken in accordance with the governing regulation. This is not a case where administrative regularity can be presumed.
5. Since the FLIPL could not be located by the offices expected to have copies of it, any reasonable doubt concerning the findings of the FLIPL; i.e., that applicant was found to be financially liable in the amount of $5,115.90, should be resolved in his favor.
BOARD VOTE:
___xx___ ___xx___ ___xx___ 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 by showing he was relieved of financial liability assessed by Financial Liability Investigation of Property Loss initiated on or about 19 December 2005 in the amount of $5,115.90 and that any portion of that debt already collected be refunded to him as an erroneous collection.
_ _______xxxx_____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20070018718
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