IN THE CASE OF:	

		BOARD DATE:	6 October 2009  

		DOCKET NUMBER:  AR20080016280 


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 her responsibility established by the Financial Liability Investigation of Property Loss (FLIPL) initiated on 18 June 2008 be determined to be invalid and all monies collected for this debt be refunded to her.

2.  The applicant states the investigating officer did not substantiate the necessary elements in order for her to be found liable.  Her command did not adequately address a number of procedural errors or consider her rebuttal.  She further states that some of the missing items were missing before she assumed command.

3.  The applicant provides copies of a DA Form 7531 (Checklist and Tracking Document for FLIPL), a DD Form 200 (FLIPL) with related attachments, five memoranda related to the investigation, her rebuttal statement, two memoranda related to her command's reconsideration, and a legal review memorandum.

CONSIDERATION OF EVIDENCE:

1.  On 20 November 2006, the applicant, a captain (CPT), assumed command of B Battery, 2nd Battalion, 1st Air Defense Artillery Brigade.  A change of command inventory was reportedly conducted at this time.



2.  On 15 October 2007, an accountability inventory was conducted and a number of items were found to be missing.

3.  On 27 November 2007, an investigation of the property loss was directed by the Commanding Officer, 35th Air Defense Artillery Brigade, Korea. 

4.  The investigating officer determined the applicant was liable for the loss of a number of items in part because missing components were not properly documented on shortage annexes at the time of the inventory completed in November 2006 and no update of the annexes was performed during the applicant's period as battery commander.  Included in the investigation packet are several sworn statements from the applicant's subordinates attesting to the fact that several of the missing items were not listed on their original hand receipts and/or the items where outdated or no longer utilized.  The total value of the missing items was determined to be $25,979.85 and the investigating officer recommended that the applicant be held liable for the loss and charged one month's pay.

5.  On 23 January 2008, the Battalion Executive Officer accepted the recommendations and notified the applicant that she was liable for the loss in the amount of $4,503.00 (one month's pay).

6.  The applicant rebutted the findings stating that the investigating officer did not show she was negligent in the loss.  Although she was responsible for the loss as the battery commander, she had exercised the appropriate degree of care under the circumstances and her actions were not the proximate cause of the loss.  She pointed out that several items listed were not on the inventory list when she assumed command and the technical manual did not list them as separate items.  She also noted that several of the missing parts had been put on order prior to her assuming command and she relied on her supply sergeant to track those replacements.  She contends that she should not be held liable because her actions did not directly result in the loss and several items were not listed on the original inventory as separate items.  The applicant requested a review of the findings by a member of the Judge Advocate General's Corps.

7.  On 18 March 2008, the Battalion Executive Officer non-concurred with the applicant stating that the applicant had not properly accounted for her assigned equipment and recommended she be charged a depreciated amount equal to one month's pay.



8.  A legal review by CPT D____ K____, dated 11 April 2008, found that the applicant could be held liable for some, but not all, of the equipment that was missing.  He found that no depreciation factor had been applied to any of the missing items, but that this was moot in that even with the full depreciation applied, the remaining values still exceeded one month's pay.  He opined that the 
applicant was negligent in not recording the missing items on a shortage annex and she did not check with the proper personnel to determine what should be done about replacing some of the missing items, especially in light of their high value.  The proximate cause for the loss was determined to be a lack of accountability during inventories and this makes it impossible to determine when and how the items were lost.  It was also found the applicant should not be held liable for a number of component items since the items were not listed in the technical manual utilized at the time of the original inventory, thereby making it impossible to determine if the items were in fact missing.  It was recommended that the value of missing items that the applicant was liable for be reduced to $17,615.85.  Since no willful misconduct or gross neglect in the loss was found it was recommended the applicant be held liable for only the amount equal to one month's base pay.

9.  On 23 April 2008, the Commanding Officer, 35th Air Defense Artillery Brigade approved the findings and provided the applicant with her legal options.

10.  On 18 June 2008, the Commanding Officer, 35th Air Defense Artillery Brigade again approved the findings and provided the applicant with her legal options.  With the exception of the date, this is an identical letter to the one presented to the applicant on 23 April 2008.

11.  The applicant requested reconsideration on 17 July 2008, stating that as of that date, she had still not received a full copy of all pertinent documentation and she should not be held liable because she had not been found negligent in the loss.

12.  An undated legal opinion from the Brigade Judge Advocate states that the investigation was properly conducted.  The applicant's inability to ensure her command control accountability led to the disappearance of the items.  Because of this the applicant should be held liable and the approval authority should deny the applicant's request for reconsideration. 

13.  On 17 September 2008, the Commanding Officer, 35th Air Defense Artillery Brigade approved the findings for a third time and provided the applicant with her legal options.  With the exception of the date and inclusion of a second legal 
opinion, this letter is identical to the two previous notification letters.

14.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes the 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 of damage would not have occurred.  

15.  Army Regulation 735-5, chapter 13, further states the FLIPL prescribed by the Department of Defense Financial Management Regulation, volume 12, chapter 7, replaces the report of survey system.  It further provides at:

	a.  paragraph 13-7, the initiator of a FLIPL will normally be the hand receipt holder or the accountable officer;

	b.  paragraph 13-11, the initiator will forward FLIPLs, with exhibits, in original with copies to the accountable officer for assignment of a document/voucher number; 

	c.  paragraph 3-20, the DA Form 1659 (FLIPL Register) and the files of approved FLIPL 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.



	d.  paragraph 3-34, 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 individual’s rights will be attached to the FLIPL as an exhibit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the investigating officer did not substantiate the necessary elements in order for her to be found liable.  Her command did not adequately address a number of procedural errors or consider her rebuttal.  Some of the missing items were missing before she assumed command.

2.  As the battery commanding officer it was her responsibility to ensure that any loss was properly accounted for and documented.  While the task of doing this was delegated to a subordinate, it does not relieve her of her responsibility to ensure that the proper actions were completed.  

3.  The initial legal review concurred with the applicant's contention that some of the items were missing prior to her assuming command and/or were not listed in the technical manual as separate items.  Therefore, she was not found liable for those items.  The total monetary amount of liability was significantly reduced; however, the final amount still exceeded the one month's pay cap for such loss.

4.  The case was reviewed twice for legal sufficiency and on both occasions the investigator's findings were found to be correct and procedurally sound. 

5.  The applicant failed to ensure proper accounting of the total inventory under her responsibility and ensuring that the shortage annex documentation was properly maintained and followed up on during her period as battery commander. This demonstrates negligence on her part.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no basis for granting the applicant's requested relief.
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)                                         AR20080016280



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ABCMR Record of Proceedings (cont)                                         AR20080016280



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