IN THE CASE OF:	 

		BOARD DATE:	        22 April 2009

		DOCKET NUMBER:  AR20080016022 


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 that she be found not liable for the loss of Government property in the amount of $2,793.25.   

2.  The applicant states that she is being charged almost $3,000.00 for a secure terminal equipment (STE) phone which she never signed for nor for which was she a hand receipt holder.  She contends that she has been falsely accused and is just the fall guy.  She believes her chain of command did not look at all the facts and because she was the lowest ranking person the punishment went to her.  She indicates that there were several mistakes from the beginning with record keeping and that no one signed for property, but she was the one who received all the punishment.  

3.  The applicant provides seven sworn statements; a DD Form 200 (Financial Liability Investigation of Property Loss); a memorandum, dated 6 October 2007; and a rebuttal, dated 5 October 2007, in support of her application.   

CONSIDERATION OF EVIDENCE:

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

2.  A DD Form 200 shows an investigation of property loss (STE phones) was conducted.  On 12 September 2007, the Financial Liability Officer found that the applicant and two other Soldiers (a captain and a sergeant first class) were liable and recommended assessing them the maximum (one month's base pay)  amount permitted by the regulation.  The appointing authority approved the recommendation on 15 September 2007.  

3.  The applicant submitted a rebuttal statement, dated 5 October 2007, in response to the Financial Liability Investigation of Property Loss.  In summary, she stated that she should not be found liable because the investigating officer did not show negligence.  She states that although she may be responsible for the loss of Government property under supervisory or custodial responsibility, she exercised the appropriate degree of care under the circumstances and her actions did not proximately cause the loss.  She pointed out that she should not be held responsible because there were issues surrounding who was truly responsible, that there was no evidence of negligence or willful misconduct, that there were chain of custody issues, and that there was a lack of inventories.  She stated that she should not be held liable because she was not culpable and that there was no negligence or willful misconduct in her actions.  In closing, she requested that any amount of liability that she is held liable for be repaid over a 12-month period to avoid financial hardship.    

4.  The approving authority approved the recommendation of the investigating officer on 12 October 2007 and recommended that repayment of the debt be pro-rated over 12 months.  

5.  On 12 October 2007, the Staff Judge Advocate found the Financial Liability Investigation of Property Loss to be legally sufficient.  He concluded that the recommendations by the investigating officer and appointing authority of financial liability were reasonable, that the rights of the respondents were observed, and he recommended approval of the recommendation of the approving authority.  He also recommended that serious consideration be given to the applicant's request for relief based on her financial situation.

6.  On 17 October 2007, the applicant was notified that financial liability had been assessed against her by the U.S. Government in the amount of $2,793.25 for the loss of Government property.  She was also advised of her rights relative to the matter.

7.  In support of her claim, the applicant provided seven sworn statements from Soldiers.  Two Soldiers attest that due to the poor hand receipt accountability of the S6 (communications section) noncommissioned officer in charge, Sergeant First Class Cxx, there were several STE phones, computers and other automation equipment not accounted for.  One Soldier attests that Sergeant First Class Cxx was the primary hand receipt holder for the shop.  Sergeant First Class Cxx stated that he and Captain Mxx were the primary hand receipt holders for the shop.  Captain Mxx stated that he did not recall who signed for the STE phones when they arrived at the shop but he did know that all equipment coming into the shop was signed for by the S6 noncommissioned officers (Sergeant First Class Cxx, Sergeant First Class Dxx, and Sergeant Lxx).  One Soldier states that he turned his office and the STE phone over to the applicant on 25 October 2006 and that the applicant as the rear detachment noncommissioned officer in charge was to keep the STE phone.      

8.  In the applicant's sworn statement, dated 15 August 2007, she stated that in mid-October 2006, before the unit deployed to Iraq, she and Major Cxx did a battle handover of the office equipment that would be left behind in the rear.  She stated that although she did not take notes of this meeting, she remembered that Major Cxx told her that he was going to leave behind one printer and the STE phone.  She stated that at the time of deployment she signed for 3 printers but no STE phone, that it was her understanding that the STE phone would have been accounted for by the S2 shop, and that no one from the S2 shop ever approached her about signing for the phone.  She further states that 2 weeks after the full brigade deployed, the rear detachment staff needed to move to another building and since she never signed for the STE phone she did not instruct anyone to pack or move or secure the phone.  She stated that the last time she saw the STE phone was in Major Cxx's office when they were doing the battle handover and that it was her understanding then that he was telling her what items she would have at her disposal in the unit's absence, not telling her what items she was to sign for.  In the applicant's 5 October 2007 rebuttal to the Financial Liability Investigation of Property Loss she stated she directed a clean-up crew to take the STE phone after she decided it was too complicated and had unplugged it.  She said she did not see it again after that.   

9.  In the processing of this case, a staff advisory opinion was obtained from the Acting Director of Supply, Office of the Deputy Chief of Staff, G-4.  The opinion recommends that the financial liability assessed against the applicant be upheld.    The opinion states that the applicant did not exercise reasonable and prudent actions to properly use, care for, and safeguard the Government property in her possession.  Although the STE phone was not on a hand receipt, Major Cxx's sworn statement stated that an office handover was conducted on 26 October 2006 with the applicant, which she confirmed in her sworn statement as well, dated 15 August 2007.  The applicant, as the Rear Detachment Noncommissioned Officer in Charge, had personal and supervisory responsibility to ensure all Government property issued to, or used by, her subordinates was properly used and cared for, and proper custody and safekeeping of the property were provided which she failed to do.

10.  On 23 December 2008, the advisory opinion was furnished to the applicant for comment; however, she did not respond within the given timeframe.
11.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes basic policies and procedures in accounting for Army property and accounting for lost, damaged, or destroyed Army property.  Paragraph 2-8(2) of Army Regulation 735-5 states that supervisory responsibility is the obligation of a supervisor to ensure all Government property issued to, or used by, his or her subordinates is properly used and cared for, and that proper custody, safekeeping, and disposition are provided.  Paragraph 2-8(5) states that personal responsibility is the obligation of a person to exercise reasonable and prudent actions to properly use, care for, safeguard and dispose of all Government property issued for, acquired for, or converted to a person's exclusive use, with or without receipt. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she never signed for nor was she a hand receipt holder of the STE phone was noted.  However, in one of the sworn statements provided by the applicant, a Soldier stated that he turned his office and the STE phone over to the applicant on 25 October 2006 and that the applicant, as the rear detachment noncommissioned officer in charge, was to keep the STE phone.  In the applicant's 15 August 2007 sworn statement, she indicated that in mid-October 2006 she and a major did a battle handover of the office equipment that would be left behind in the rear and the major told her he was going to leave behind one printer and the STE phone.  

2.  Although the applicant contends that she is the fall guy and because she was the lowest ranking person the punishment went to her, evidence of record shows that the investigating officer concluded that the applicant and two other Soldiers were liable for the Government property.  The Staff Judge Advocate found the Financial Liability Investigation of Property Loss to be legally sufficient.  

3.  As stated in the advisory opinion, as the rear detachment noncommissioned officer in charge the applicant had personal and supervisory responsibility to ensure all Government property issued to, or used by, her subordinates was properly used and cared for, and proper custody and safekeeping of the property provided which she failed to do.  

4.  There is no evidence to show the applicant was unfairly or inequitably assessed liability for the loss of Government property.  The applicant admitted that she was responsible for the phone although she was not signed for it.  Further, she thought it was too complicated, unplugged it, and directed a clean-up crew to remove it.  She lost accountability for it thereafter.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__ ___X____  ____X____  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.




      _______ _  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)                                         AR20080016022



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ABCMR Record of Proceedings (cont)                                         AR20080016022



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