IN THE CASE OF:	  	

		BOARD DATE:	  		14 April 2009

		DOCKET NUMBER:  AR20080014747 


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, reconsideration of his request that the appeal authority’s decision regarding the Financial Liability Investigation of Property Loss (FLIPL) in case #16-05 (Applicant’s Enclosure 1) be reversed to relieve him from all financial responsibility in this matter, all monies garnished as a result of the findings of this FLIPL be refunded, the Senior Rater’s prejudicial remarks in the Officer Evaluation Report (OER) that relate to the FLIPL be redacted from the OER, and his Official Military Personnel File (OMPF) be expunged of reference to this matter.

2.  The applicant states, in effect, in response to the Board’s denial of his original request, he has assembled documentation that will support his statements and provide evidence where the Board indicated such was lacking in the original application.  He acknowledges that the Board carefully considered his original application, requests the Board’s careful attention once again as he addresses the shortcomings that were found with his original application, and he presents new evidence for consideration:

     a.  The applicant states that the OER covering the period 1 January 2005 through 17 June 2005 (Applicant’s Enclosure 2) contains comments relating to the loss of property more than a month before the investigating officer for FLIPL #16-05 was appointed.  Specifically, “(t)here was, however, a significant loss of property accountability within the battery, resulting in U.S. Government property lost (sic).”  He adds that the comments by the Senior Rater concern unverified derogatory information which it was the purpose of the FLIPL to determine
(i.e., whether a loss had actually occurred, if negligence or misconduct was involved, and if the loss qualified as substantial). 

          (1)  The applicant states, irrespective of the outcome of the investigation, the Senior Rater’s comments in the OER prior to conclusion of the investigation were prejudicial and clearly prohibited by Army Regulation 623-3 (Evaluation Reporting System).

          (2)  The applicant requests, even in the absence of other corrective actions, the Board correct this error by directing redaction of the Senior Rater’s comments in the OER.

     b.  In the way of background, the applicant states he was briefed in May 2004 to expect particular supply challenges while in command.  On 1 June 2004, the applicant signed for properties of A Battery, 1st Battalion, 30th Field Artillery Regiment, Fort Sill, Oklahoma and the value of these properties was $11,996,163.18 (Applicant’s Enclosure 3).   He adds he conducted a complete change of command inventory for all these properties, made a thorough record of properties on hand not listed on the Battery Hand Receipt, and assumed responsibility for these properties.

          (1)  The applicant states that the Battery previously had issues with sub-hand receipting property (Applicant’s Enclosure 12) and all properties, except those listed on the Commander’s Sub-Hand Receipt (Applicant’s Enclosure 13) were properly posted to Sub-Hand Receipts (SHRs) and signed for by the appropriate SHR holder at the time he took command.  The applicant states that a partial record of this is evident in the notations on the Applicant’s Enclosure 3.  He also offers a brief explanation of the nature of the Unit Level Logistics System - Ground (ULLS-G).

          (2)  The applicant states that between June 2004 and January 2005 he regularly re-inspected, accounted for, and reported noted discrepancies concerning all Battery properties through monthly 10 percent cyclic inspections, weapons and sensitive items inventories (Applicant’s Enclosure 6), and weekly Battery Situation Reports (SITREPs) (Applicant’s Enclosure 16).  The applicant adds that his property inventories are intact and were available to the Financial Liability Officer (FLO).

          (3)  The applicant states between June 2004 and July 2004 his Battery Executive Officer (XO) oversaw the acceptance or appropriate disposition of those properties that were noted as excess on the original change of command inventory (Applicant’s Enclosure 7).  The applicant adds that he inventoried these properties jointly with the SHRs and XO and also authorized the XO to execute the documents he had prepared.

          (4)  The applicant states that, in the course of conducting cyclic property inventories for July 2004, he noticed discrepancies between the properties listed on the cyclic inventory record (Applicant’s Enclosure 6) and those inventoried in June 2004 (Applicant’s Enclosure 3).  He adds that he reported this discrepancy to the Consolidated Property Book Office (CPBO) and Battalion XO and also gave an accounting of the discrepancy (Applicant’s Enclosure 9).  He states that he inquired into how the items disappeared from his Battery Hand Receipt (HR) without a valid/approved change document and a CPBO official suggested that it was just a “glitch.”

          (5)  The applicant states that, on or about 20 July 2004, he authorized the Battery XO to make certain changes and aid in the appropriate disposition of properties on the Commander’s SHR (Applicant’s Enclosure 13).  He also directed the Supply Section to conduct a 100 percent inventory of Battery properties.  The Supply Section inventoried each SHR Holder’s properties with them, and compared these to the Battery HR (Applicant’s Enclosures 4 and 16), although not required by the Unit Supply Standing Operating Procedures (SOP) or in the Battalion or Regimental Commander’s Guidance (Applicant’s Enclosure 15).  The applicant states, “[a]t the conclusion of this inventory I was satisfied that I had an accurate picture of Battery properties and had accounted for everything for which I was responsible, and I reported this to my chain of command [Enclosure 16, pp. 16 et seq.].”

          (6)  The applicant states that in the course of Cyclic, Sensitive Item, and Weapons inventories he noted two discrepancies that had not been corrected in accordance with the 14 June 2004 After Action Report (AAR).  He states that with respect to a unit replacement for a Navigation Set, Satellite, that was listed on FLIPL #16-05, the substantiating documents (showing that this item was not actually lost) were then in the possession of the SRH Holder (Applicant’s Enclosure 21).  The applicant also states that this noncommissioned officer (NCO) was available at Fort Sill throughout 2005, but he was not interviewed by either of the FLO’s appointed to conduct the FLIPL.

          (7)  The applicant states that during the October 2004 inventories, he noted Digital Data Sets had been replaced with one-for-one swaps for maintenance and proper documentation for these discrepancies was also on-hand, despite the FLO’s statement of 1 August 2005 that appears to refer to these discrepancies. The applicant asserts that the FLO’s statement is inaccurate and he mistakenly conflates the issue of the October 2004 inventories with the unrelated loss of the Battery ULLS-G in December 2004 (Applicant’s Enclosures 20 and 16).

          (8)  The applicant states that in January 2005 he discovered properties listed on his cyclic inventory for which no valid change document had been processed.  An inquiry with CPBO produced a Battery HR showing he was supposedly now accountable for properties totaling $47,598,275.10 (Applicant’s Enclosure 5).

          (9)  The applicant states that he went to the CPBO in person and ordered a freeze of all action against his Battery HR and requested copies of the change documents that had posted to his HR.  He states that the CPBO official produced only the valid change documents executed in June 2004 and June 2005 which only accounted for an additional $3,412,991 in properties to the Battery property book (Applicant’s Enclosure 7).  He adds that the FLO’s conducting the FLIPL were content to accept this CPBO official’s statement indicating she did not receive any cyclic, weapons or sensitive item reports from the applicant from January 2005 to May 2005, as requested, in spite of the applicant’s clear statements in the FLIPL that properties were added to his HR by CPBO without any valid authorization.

          (10)  The applicant requested suspension of Cyclic, Weapons, and Sensitive Item inventories for February and March 2005 (Applicant’s Enclosure 18) based on the fact that he was in the process of conducting a Battery and Post-wide search for all the properties now listed on his HR.  He adds that he had done everything a reasonable commander ought to do, and more, to ensure accountability of his Battery’s properties.

          (11)  The applicant states neither of the appointed FLOs made any attempt to investigate, rebut, or address in any way the crucial part of his statements concerning the alleged property loss the FLOs were investigating.  The FLOs never inquired into how the properties simply appeared on the Battery HR.  He notes these failures were pointed out in both his rebuttal and his appeal of the FLIPL (Applicant’s Enclosure 1).  He adds that this conspicuous and telling error has not been explained or even addressed by the FLO, review authority, or appeal authority.

          (12)  The applicant states that the CPBO wrongly and improperly assigned properties to his Battery HR and, not counting items turned in to the Defense Reutilization and Marketing Office (DRMO), the unauthorized postings represented a discrepancy in installation management of $32,189,120.92.  He adds that he succeeded in establishing accountability for all but $80,695.67 of the missing $32,189,120.92.  The applicant states that even if there had been evidence the remaining $80,695.67 in properties had legitimately been assigned to him, there was no evidence at the time that it had been lost, as his recovery of over $32M in property clearly suggests otherwise. 

          (13)  The applicant states he prepared a FLIPL in April 2005 (Applicant’s Enclosure 1) in an attempt to reconcile the $7.7M discrepancy in the property book.  He notes the fact that Army Regulation 735-5 (Policies and Procedures for Property Accountability) and the unit’s published Supply SOP demanded mandatory and immediate action, the unit chose to do nothing.  As a result, the Regiment forfeited the best opportunity to reestablish control of these properties as soon as the loss was discovered.  The applicant concludes that, if he had been properly afforded the right to initiate an FLIPL of the property assigned to him in April 2005, he could have clearly demonstrated that there was no actual loss to the government.  As evidence he describes how he recovered a Hobart Frequency Converter that had been added to his HR that was actually found attached to a building that had not been under Regimental control for 3 years.

          (14)  The applicant states that the command that undertook the conduct and review of the FLIPL was manifestly responsible for tolerating the conditions under which the loss of government property was possible.  Through enormous and dedicated effort his Battery found the $31.2M in properties; however, neither the command nor FLO could be bothered to follow-up on the remaining $80K.

     c.  In response to the Board’s finding in his original application that he did not sufficiently rebut the findings and conclusions of the FLO, the applicant now addresses the inadequacies of the investigation.

          (1)  The applicant states that the FLO initially appointed to conduct the FLIPL obtained sworn statements from the newly assigned Battery Commander, Battery Supply Sergeant, and Supply Technician.

               (a)  He states that the statement from the new Battery Commander is very limited, essentially factual, but contains the new Battery Commander’s opinion of the Battery’s property operations based on his limited observations.

               (b)  He states that the Battery Supply Sergeant’s statement offers an accurate assessment of supply operations at the time that he assumed duties because there was no operational ULLS-G system in the Battery at the time. Therefore, there could not have been any SHRs.  The Battery Supply Sergeant’s statement also indicates the Battery Supply Clerk threw out all of the old hand receipts, confirms that a FLIPL was initiated at the time of discovery, in April 2005, and that based on instructions from an NCO of the Regimental S-4, the FLIPL was postponed until after the change of command inventory.
               (c)  He states that the statement taken from the Supply Technician on
22 July 2005 is limited to a single question, “Q:  Were you on medical leave from July 2004 to March 2005?” and the answer, “A:  Yes.”  However, the applicant states the Supply Technician was not on leave from March to June 2005 which was a critical period to the investigation and, in fact, he returned to limited but daily duty as early as 21 October 2004.  The applicant adds that the Battery’s civilian Supply Specialist who was critical to the discovery and management of the property discrepancy witnessed this sworn statement, but the FLO chose not to interview and/or include a sworn statement from her as part of the FLIPL.

          (2)  The applicant describes how he searched for records, carefully sorted through documents that could be of use in reconstructing the ULLS-G database, and efforts to locate, secure, and properly document the property that was unaccounted for.  He adds that the previously referred to Supply Technician, who had detailed knowledge of the schoolhouse property and its history, was critical to locating the bulk of the $32M in property recovered between January and June 2005.

          (3)  The applicant states the two FLOs (i.e., the one initially appointed and the one subsequently appointed) failed to obtain sworn statements from him, the Battery XO, the acting Battery Supply Sergeant at the time of the loss, or personnel from higher headquarters (e.g., CPBO, Regimental S4, etc.).  He adds that the FLO initially appointed to conduct the FLIPL constructed an unsworn statement that paraphrases portions of a telephone interview the FLO conducted with him on 29 July 2005.  The applicant also states that this statement does not accurately document statements he made during the telephone interview and he was never offered the opportunity to review the statement for accuracy and/or offer the correct/appropriate information.  The applicant offers a detailed rebuttal of the FLO’s statement, asserts that properties had been posted to his HR at CPBO without valid documents, and that the chain of command bore clear and participatory responsibility for its loss by failing to act appropriately upon discovery of the loss.

          (4)  The applicant states that the FLO subsequently appointed to conduct the FLIPL obtained one unsworn statement from a civilian Supply Specialist at the CPBO that states, “[f]rom Jan 2005 to May 2005, CPBO did not receive any cyclic, weapons, or Sensitive Reports as requested from A btry 1/30th.”  The applicant adds that this statement is accurate on its face, but does not offer any information concerning his request for extension and their inclusion/accounting in the 100 percent inventory that was planned.


          (5)  The applicant states that there is extensive evidence of his emphasis on the Command Supply Discipline Program (CSDP) as documented by his initial change of command inventory; SHR scrubs; monthly cyclic, weapons, and sensitive items inventories and the related corrective actions; the additional
100 percent inventory in February and March 2005; the April 2005 FLIPL and its rejection; and the continued search through June 2005 for all properties.  The applicant also states that he explained to the FLO how and when major supply accountability systems had been compromised and what he did to respond
(e.g., using redundant systems and rebuilding the ULLS-G database).

          (6)  The applicant states that the FLIPL contains no explanation for the replacement of the FLO initially appointed to conduct the FLIPL.  However, the conclusions of the FLO subsequently appointed to conduct the FLIPL drew from the incomplete, unfactual, and misleading statement given by the former FLO.  In fact, the FLO’s carefully worded “finding” echoes the determination made by the Regimental Commander in his Senior Rater comments on the OER.

                (a)  The applicant notes that this FLO states he was appointed on         23 June 2005; however, he signed block 15 of the DD Form 200 and indicates his appointment date was 22 July 2005.  The applicant also notes that the initially appointed FLO obtained and provided sworn statements as evidence in the FLILP as late as 26 July 2005.  In addition, in his statement (dated 1 August 2005), the initially appointed FLO states he was assigned the duty on 30 June 2005 and “all evidence in this investigation was given to [rank and name] the new investigating officer on 1 Aug 05.”

                (b)  The applicant states that the subsequent FLO does not give an account of what he actually did in the course of the FLIPL for which he gives findings and recommendations.  The applicant notes this FLO obtained a one sentence, unsworn and unwitnessed statement from the civilian Supply Specialist at the CPBO; however, he did not seek to obtain any probative information from her or other personnel concerning the CPBO’s responsibilities and the relevant property book actions.

                (c)  The applicant states that this FLO specifically cites the $7.7M figure that appears in the FLIPL initiated in April 2005 and offers conflicting numbers of irreconcilable discrepancies in the FLIPL (i.e., 237 in his statement versus 73 items identified on 24 LINs) totaling $80,695.67.  He also states that the FLO’s findings that, ‘[a]dditionally, the unit’s failure to maintain key documentation showing responsibility for unit property further proves the lack of discipline in the area of property accountability” ignores the fact there were sufficient redundant records on hand to reconstruct the Battery’s hand receipts.  The applicant further states that the failure of the Battalion to order a “lock-down” to search for “sensitive items” when it was discovered they were missing is telling and offers evidence of shared responsibility regarding the findings of the FLIPL.

         (7)  The applicant states that the FLIPL contains contradictory and inaccurate information.  He also states that the FLO neglects to acknowledge how much emphasis the applicant placed on his CSDP and how successful those efforts actually were.

         (8)  The applicant states that the FLO does not offer any comment related to his Statement of Objection submitted in rebuttal to the FLIPL.  The FLO merely reviews “two very important facts that were discovered during this investigation” and establishes that the applicant was the commander and personally responsible for the property.  The FLO adds, “[a]fter a thorough search and investigation, not one single record has been found indicating that [the applicant] created sub-hand receipts for his property, assigning responsibility to the user level.”  He further states, “[t]hese two very simple facts were confirmed in [his] investigation.”

                (a)  The applicant points out that the FLO acknowledges in his initial report that he had viewed a Commander’s Summary Report and, if the FLO had taken note, the date each SHR was created was annotated on the document which renders the FLO’s statement invalid.

                 (b)  The applicant states that “[the FLO] ignored the overt contributory actions of CPBO and of the Regiment which manifestly interfered with and prevented the full functioning of [his] responsibility in this matter.”

         (9)  The applicant concludes by stating, “[w]hat the FLO has asserted with vague and inexact references that he chooses to call evidence, [he has] rebutted with a preponderance of clear and explicit evidence.  Much of that evidence excluded by the FLO and brought to light here, serves to demonstrate the incompetent and biased conduct of FLIPL #16-05.”

3.  The applicant provides a 23-page statement, dated 7 September 2006, along with 21 enclosures, as identified by the applicant in a list of attachments (for Block 9 of the DD Form 149 (Application for Correction of Military Record).  The applicant provides the 21 enclosures in digital format on a compact disk (CD), along with a duplicate CD containing the same 21 enclosures in support of his application.  The applicant also provides a Headquarters, Combined Joint Task Force 101, Bagram, Afghanistan, memorandum, dated 3 January 2009, subject: ABCMR Application PB13987, [Applicant's Name], Captain, Field Artillery, [Social Security Number] with 7 enclosures, as identified on the correspondence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's request pertaining to the appeal authority’s decision regarding FLIPL #16-05, the Senior Rater’s comment related to the property loss be redacted from the applicant’s
DA Form 67-9, and any reference to this matter be expunged from his OMPF.

2.  Counsel, in effect, defers to the applicant.

3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060014268, dated 10 July 2007.

2.  The applicant’s military personnel records show that he was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant and entered active duty on 23 May 1998.  He was promoted to the rank of captain (CPT) on 1 December 2001.  The applicant served in support of Operation Iraqi Freedom in Iraq from 30 October 2003 to 29 March 2004.  He also served in support of Operation Enduring Freedom in Afghanistan from 17 November 2007 to 31 January 2008.

3.  On 1 June 2004, upon completion of a joint inventory of command property with the outgoing commander for A Battery, 1st Battalion, 30th Field Artillery Regiment, Fort Sill, Oklahoma, the applicant signed for the unit’s properties totaling approximately $11.99M.  On 2 June 2004, he assumed command of
A Battery, 1st Battalion, 30th Field Artillery.

4.  In August 2004, the unit conducted a 100 percent inventory of the property in order to support a transition between Battery Supply Sergeants and to properly sub-hand receipt items still on the Commander's SHR.  From August through November 2004, the Battery’s only assigned Soldier trained and qualified to hold military occupational specialty (MOS) 92Y (Supply Specialist) was detailed to a Funeral Team and also to a 90-day tasking as staff duty driver.

5.  In January 2005, a cyclic property inventory was conducted and a large number of discrepancies were discovered.  An inquiry with CPBO produced a Battery HR showing the applicant was accountable for properties totaling $47,598,275.10 and a discrepancy of $32,189,120.92.  The applicant requested an extension of the cyclic inventory from CPBO and completion as part of a planned 100 percent inventory.  At this same time, the unit’s ULLS-G system crashed, which complicated the effort to conduct the 100 percent inventory.  

6.  On 6 January 2005, the Battalion XO issued a "Warning Order" to subordinate unit commanders that he would be meeting the following week with the S-4, each battery commander, and supply sergeant to conduct a Table of Distribution and Allowances (TDA) scrub.

7.  Beginning on 8 May 2005, the applicant was part of a joint inventory of command property for A Battery, 1st Battalion, 30th Field Artillery prior to his change of command.  The official joint inventory of unit property was conducted from 2 June through 13 June 2005.  At this point, the applicant had succeeded in establishing property accountability for all but $80,695.67 of the missing $32,189,120.92.  As a result, a FLO was appointed to conduct a FLIPL.

8.  The applicant’s OMPF contains a change of rater OER covering the period
1 January 2005 through 17 June 2005 that was completed on 29 July 2005.  Part III (Duty Description) shows the applicant’s principal duty was Battery Commander.  Part VII (Senior Rater), block c (Comment on Performance), in pertinent part, contains the statement, “[t]here was, however, a significant loss of property accountability within the battery, resulting in U.S. Government property lost.”

9.  On 28 September 2005, the FLO submitted the FLIPL to the appointing authority and on 20 October 2005 the applicant submitted a Statement of Objection.  On 9 November 2005, the FLO commented on the applicant’s Statement of Objection.  On 14 February 2006, the Regimental Commander notified the applicant that an approved charge of financial liability had been assessed against him by the U.S. Government in the amount of $4,586.70 for the loss of Government property investigated in FLIPL #16-05.

10.  On 14 April 2006, the applicant appealed his OER for the period 1 January to 17 June 2005.

     a.  On 7 September 2006, the President, Office of the Special Review Boards (OSRB) returned the appeal without action due to insufficient evidence.

     b.  The applicant resubmitted the appeal on 31 August 2008.  On 1 October 2008, the Chief, OER Appeals and Corrections Branch, U.S. Army Human Resources Command returned the appeal without action because in reviewing the appeal, the supporting documents did not appear to offer any new “clear and convincing” evidence.
     c.  On 20 October 2008, the applicant resubmitted his appeal for adjudication, which was forwarded to the President, Army Special Review Boards (ASRB).

     d.  On 3 December 2008, the President, ASRB, informed the applicant that “[t]he new documents which the applicant submitted with this appeal and his dissatisfaction with the original proceedings do not amount to clear and convincing evidence sufficient to reverse the previous decision.”  The ASRB added that, “[i]n the absence of new substantive evidence, there is no basis for the ASRB to reconsider the case.”  The appeal was returned without action and the President, ASRB, advised the applicant that he may appeal to the ABCMR.

11.  Army Regulation 623-5 prescribes the policies and tasks for the Army’s Evaluation Reporting Systems.  Chapter 3 (Army Evaluation Principles), paragraph 3-23 (Unproven derogatory information), in pertinent part, provides that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier’s OMPF.  However, any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report.

12.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) provides policies and procedures for accounting for U.S. Army property and accounting for lost, damaged, or destroyed U.S. Army property.  The Glossary, Section II (Terms), in pertinent part, provides the following definitions:

     a.  Proximate cause is the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the loss or damage, and without this cause, the loss or damage would not have occurred.

     b.  Negligence is the failure to act as a reasonably prudent person would have acted under similar circumstances.  An act or omission that a reasonably 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.

     c.  Gross negligence is an extreme departure from the course of action to be expected of a reasonably prudent person, all circumstances being considered.  The act is characterized by a reckless, deliberate, or wanton disregard of the foreseeable consequences. 

     d.  Simple negligence is the failure to act as a reasonably prudent person would have acted under similar circumstances.

     e.  Willful misconduct is described as any intentional wrongful or unlawful act or omission relating to Government property, to include misappropriation of Government property.  

13.  Department of the Army Pamphlet 735-5 (Financial Liability Officer’s Guide) is a guide for financial liability investigating officers.  Chapter 2 (Preliminary Actions), paragraph 2-1 (Financial liability investigation of property loss procedures and terms), in pertinent part, provides that 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 property 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.

14.  Department of the Army Pamphlet 735-5, paragraph 2-2 (Purpose of financial liability investigation of property loss), provides that the task of a financial liability officer, in conducting a financial liability investigation of property loss, is to determine whether someone’s negligence or willful misconduct was the proximate cause of the loss.  If an individual was negligent, and that negligence was the cause of the loss, it is appropriate to recommend assessment of financial liability against that individual.  An act of simple negligence on the part of the responsible individual is sufficient grounds for the approval authority to approve charges of financial liability.

15.  Department of the Army Pamphlet 735-5, Chapter 3 (Investigation), paragraph 2-1 (Conduct of the financial liability investigation of property loss), in pertinent part, provides that the financial liability officer will determine who to interview and obtain statements.  It is important to obtain statements from all individuals whose testimony may assist in determining the cause of the loss or those individuals who had responsibility for the loss.  The FLO should consider interviewing the accountable officer, the primary hand receipt holder and sub-hand receipt holder(s), user(s) of the property, and their commanders and/or supervisors and any witnesses.  Before contacting the individuals, the financial liability officer will determine what information should be obtained from the individual.  When interviewing individuals, the financial liability officer will document the interviews using DA Form 2823 (Sworn Statement).  This paragraph further provides that during interviews with individuals, other evidence will probably become available that will assist in developing findings and recommendations.  Other evidence deemed necessary in the conduct of the investigation may include copies of hand receipts, standard operating procedures, police reports, accident reports, copies of orders, other investigations, estimated cost of damages, photographs, and more.

16.  Department of the Army Pamphlet 735-5, Chapter 4 (Findings and Recommendations), paragraph 4-5 (Conflicting statements or evidence), provides that when the findings rely on evidence which conflicts with other evidence, the financial liability office will explain how the conflict was resolved.

17.  Department of the Army Pamphlet 735-5 also provides for a charge of financial liability assessed against an individual or entity and provides for the relief from financial liability.  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 loss, damage or destruction.  

18.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or no longer used documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file. Army Regulation 600-8-104, Table 2-1, shows Officer Evaluation Reports are filed in the performance section of the OMPF, unless transfer is authorized to the restricted section of the OMPF.  Table 2-1 also shows that the DD Form 149 and allied documents will be filed in the restricted section of the OMPF.

19.  Army Regulation 600-8-104, paragraph 2-3 (Composition of the OMPF), in pertinent part, provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command (for enlisted Soldiers, formerly designated as Headquarters, U.S. Army Enlisted Records and Evaluation Center) or the Headquarters, Department of the Army selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the Board should reconsider his request that the appeal authority’s decision regarding FLIPL #16-05 be reversed to relieve him from all financial responsibility in this matter, that all monies garnished as a result of the findings of the FLIPL be refunded, the Senior Rater’s remarks in the OER that relate to the FLIPL be redacted from the OER, and that his OMPF be expunged of references to this matter.

2.  The evidence of record shows that CPBO Accountability Reports (i.e., Hand Receipt, Cyclic and Sensitive Item Inventories) were submitted by the applicant and received by the CPBO through December 2004.

3.  The evidence of record shows that on 6 January 2005, the XO, 1st Battalion, 30th Field Artillery Regiment notified subordinate unit commanders via email that he was meeting with the S-4, each battery commander, and battery supply sergeant to conduct a TDA equipment scrub.  The evidence of record also shows that the meeting with the applicant’s battery was scheduled for Wednesday, 
13 January 2005.

4.  The evidence of record shows that the Battery’s ULLG system suffered a catastrophic loss of data sometime in January 2005.  The evidence of record also shows that the applicant submitted a request to the CPBO on 8 February 2005 asking to suspend cyclic inventories until completion of a 100 percent battery inventory that, upon completion, would stand in lieu of the February and March 2005 cyclic inspections.  This notice also stated that a 100 percent inventory was essential to the Battery's CSDP at the time and would meet the intent of the February and March cyclic inspections.

5.  The evidence of record shows that beginning in January 2005 until his change of command the applicant initiated and conducted extensive measures to locate and account for the unit’s property that was unaccounted for and that these efforts resulted in establishing property accountability for all but $80,695.67 of the identified unaccounted for property that originally totaled $32,189,120.92.  The evidence of record also shows this was documented by the official joint inventory of unit property that was conducted from 2 June through 13 June 2005.

6.  In view of the foregoing, the evidence of record confirms that there was, in fact, a loss of property accountability within the unit during the period the applicant served as battery commander.  The evidence of record also shows that this loss of property accountability was verified and documented during the joint inventory of command property for the unit prior to the applicant’s change of command.  The evidence of record further shows that verified derogatory information may be entered on an evaluation report.  Thus, it is concluded that the comment entered by the Senior Rater on the applicant’s OER that documents the property loss is an authorized entry on the OER.  Therefore, the applicant is not entitled to have the comment redacted/expunged from his OER.

7.  The evidence of record shows that the FLO who was initially appointed to conduct the FLIPL states that he was appointed on 30 June 2005.  The record is silent as to the reason a subsequent FLO was appointed.  The evidence of record also shows that the FLO who was subsequently appointed and completed the FLIPL indicated on the FLIPL that he was appointed FLO on 22 July 2005; however, in his findings he states he was appointed FLO on 23 June 2005 (emphasis added).  The record (and FLIPL) are silent as to this discrepancy.

8.  The evidence of record shows the FLO initially appointed to conduct the FLIPL obtained three sworn statements in the course of his investigation and all of these statements were obtained on or after the date the subsequent FLO was appointed as the FLO for the FLIPL.

     a.  The initial FLO obtained sworn statements from the incoming (then current) Battery Commander (on 22 July 2005), Supply Technician (on 22 July 2005), and Battery Supply Sergeant (on 26 July 2005) who had been assigned to the unit subsequent to the apparent loss of the property in question.  The FLO also conducted an unsworn and unwitnessed telephonic interview with the applicant on 25 July 2005 and committed this to writing on 1 August 2005.

     b.  There is no evidence of record that the initial FLO interviewed any member of the unit who was associated with the unit’s supply operations and assigned to the Battery at the time of the apparent property loss.  Specifically, there is no evidence this FLO took a sworn statement from the Battery XO, former Supply Sergeant(s) or Supply Clerk(s) who the applicant identified as having been responsible for conducting supply operations at the time or immediately prior to the discovery of the discrepancies in the unit’s property documents.

     c.  There is no evidence of record that the initial FLO interviewed any member of the CPBO regarding supply operations related to the Battery’s CSDP or obtained property book documents to substantiate the transfer of the property in question to the Battery’s unit hand receipt.

     d.  There is no evidence of record that the initial FLO interviewed the Battalion XO to obtain information or the XO’s assessment concerning the results of his TDA equipment scrub of the applicant’s unit in January 2005.

9.  The evidence of record shows that the FLO subsequently appointed to conduct the FLIPL obtained one statement in the course of his investigation and that this statement was obtained, on 23 August 2005, approximately one month after this individual was appointed as the FLO for the FLIPL.

     a.  This FLO obtained an unsworn and unwitnessed statement from an Army civilian in the CPBO that consisted of a single sentence that indicated the CPBO did not receive any cyclic, weapons or sensitive item reports from the applicant’s unit from January to May 2005.

     b.  With the exception of the unsworn and unwitnessed single-sentence statement mentioned above, there is no evidence of record that this FLO interviewed any other member of the CPBO regarding supply operations related to the Battery’s CSDP or obtained property book documents to substantiate the transfer of the property in question to the Battery’s hand receipt.

     c.  There is no evidence of record that this FLO interviewed the Battalion XO to obtain information or the XO’s assessment concerning the results of his TDA equipment scrub of the applicant’s unit in January 2005.

10.  It is not clear why the initial FLO obtained statements and telephonically interviewed the applicant subsequent to the date the individual who was appointed as his successor to conduct the FLIPL.  It is also not clear why the successor FLO did not conduct these interviews, since he was the appointed FLO for the FLIPL at the time the statements were taken.  Further, it is noted that there is no evidence of record that the successor FLO contacted the applicant in an effort to obtain additional information, verify, or clarify comments attributed to the applicant in an unsworn and unwitnessed statement that was crafted by the initial FLO two days after his telephonic interview of the applicant.




11.  The evidence of record shows the applicant submitted a Statement of Objection to the FLIPL, which challenged the findings of the FLIPL, including inferences drawn from the initial FLO’s statement of the telephonic interview with the applicant.  The evidence of record also shows that the applicant pointed out that the FLO did not interview the Battery’s XO, the two Supply Sergeants preceding the (then current) Supply Sergeant, Supply Specialist, or civilian Supply Technician; all who could have offered probative evidence for the FLIPL.  In this regard, the evidence of record shows the applicant indicated that the (former) Battery Supply Sergeant was on a signature card and instructed on the procedures for the transfer of property; however, he had no explanation for the lateral transfer documentation she signed without his knowledge or authorization. The evidence of record further shows the applicant noted that the FLO did not interview officials at the Battalion S-4 and CPBO responsible for documenting the lateral transfers of property, or obtain documentary evidence to substantiate that the property was actually and properly laterally transferred to the applicant’s hand receipt.

12.  The evidence of record shows that, in the applicant’s Statement of Objection to the FLO’s Findings and Recommendations in the FLIPL, the applicant raised specific issues in evidence which conflicted with the evidence the FLO relied upon in his findings; however, the FLO did not address or explain how the conflict was resolved.  Thus, the FLO did not take into account the totality of evidence and the FLO did not provide the approving authority a complete investigation with respect to the FLIPL’s Findings and Recommendations.  Nonetheless, the applicant’s Statement of Objection was included as part of the FLIPL and it is reasonable to conclude that the approving authority reviewed and considered the applicant’s Statement of Objection prior to approving the FLIPL.

13.  The evidence of record shows that 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.  The evidence of record also shows that 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 loss, damage or destruction.


    a.  Records show that the applicant was accountable for the unit’s properties totaling $47,598,275.10 and a discrepancy of $32,189,120.92 was discovered sometime in December 2004.

    b.  Records show that the unit’s ULLS-G system crashed in January 2005, which complicated the effort to conduct a 100 percent inventory of property.  

     c.  Records show that the applicant succeeded in establishing property accountability for all but $80,695.67 of the missing $32,189,120.92 prior to his change of command.

     d.  Records show that with the exception of the telephonic interview of the applicant there is no evidence that the FLOs investigating the property loss interviewed any member of the unit’s supply operations who were assigned to the unit at the time of the apparent property loss.  In addition, there is no evidence that either FLO interviewed the battalion XO or CPBO personnel to obtain probative testimony or documentary evidence regarding the applicant’s CSDP within his unit.

14.  Nonetheless, the evidence indicates the applicant was not sufficiently diligent in ensuring that his subordinates' activities contributed to the proper use, care, custody, safekeeping, and disposition of all property within the command or in enforcing all security, safety, and accounting requirements.  Thus, the applicant failed to fulfill his command responsibility with respect to the property in question. Therefore, the applicant is not entitled to a reversal of the decision of the approving authority or appeal authority of FLIPL #16-05 with respect to the applicant’s command responsibility regarding the property in question.

15.  While the Board does not relieve the applicant from his inherent command responsibility regarding the loss of the U.S. Government property in question, in view of all of the foregoing, it is concluded that the FLOs involved in the FLIPL failed to gather sufficient evidence to conclude that the applicant’s willful misconduct or negligence was the proximate cause of the loss.  In this regard, records show that the applicant’s unit ULLS-G system crashed requiring a reconstruction of the unit’s property book; however, valid/approved change documents were not included as part of the FLO’s FLIPL to substantiate the proper transfer of the property in question to the unit.  Conversely, the evidence of record shows the applicant reconstructed records from various other sources to locate and inventory the vast majority of the unit’s property.



16.  In view of the foregoing, the evidence of record fails to substantiate that the applicant's simple negligence, gross negligence, willful misconduct or negligence was the proximate cause of the loss.  Thus, the evidence of record does not satisfy the requirement to establish financial liability for the property loss in question.  Therefore, it is concluded that the applicant’s records should be corrected to show that he was not found to be held financially liable for the amount of $4,586.70.

17.  Notwithstanding the above conclusion, the evidence of record shows that by regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust.  The applicant provided insufficient evidence that the documents in question are untrue or unjust in this case.  Therefore, in view of all of the foregoing, it is concluded that the DA Form 67-9, ABCMR Record of Proceedings, and related records are properly filed and should not be removed from the applicant's OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20060014268, dated 10 July 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was relieved of all financial responsibility in this matter.

2.  As a result of the foregoing correction, the Defense Finance and Accounting Service (DFAS) shall cancel the applicant's financial liability in accordance with the terms of this correction of records, as outlined above.  In addition, DFAS shall provide the applicant a refund of the total amount of any monies garnished and/or recouped as a result of FLIPL #16-05.



3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reversing the overall decision of the FLIPL in case #16-05, redacting the Senior Rater’s comments in the applicant’s OER that relate to the property loss, and/or expunging any reference in the applicant’s OMPF related to this matter.




      _______ _   _X______   ___
               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)                                         AR20080014747



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ABCMR Record of Proceedings (cont)                                         AR20080014747



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