IN THE CASE OF:	  

		BOARD DATE:	       1 OCTOBER 2009

		DOCKET NUMBER:  AR20080017728 


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 the finding of financial responsibility be overturned and he be reimbursed the monies withheld for reimbursement of missing items.

2.  The applicant states he is being held financially liable for property lost as a result of a break-in.  Proper procedures were not followed in the preparation of the investigation report or in the notification of his liability, which occurred after he was deployed.  Furthermore, the approving authority signed the Financial Liability Investigation of Property Loss (FLIPL) recommendation five months prior to the investigating officer.

3.  The applicant provides copies of a DA Form 7531 (Checklist and Tracking Document for Financial Liability Investigations of Property Loss); a DD Form 200 (FLIPL) with related attachments, memoranda, and e-mails related to the investigation; and his rebuttal statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a U.S. Army Reserve (USAR) staff sergeant and a school trained supply clerk, assumed responsibility for the 307th Tactical Psychological Operations (PSYOP) company's [a troop program unit in St. Louis, MO] Organizational Clothing and Individual Equipment (OCIE) in March 2006.  At this time a 100 percent inventory was performed. 

2.  The chain of events as described by the applicant and/or documented in the investigation is as follows:  
	a.  the building housing the 307th PSYOP company's OCIE storage cage was broken into on or about 12 December 2006;

	b.  the applicant was notified of the break-in by Sergeant (SGT) K____, whom the applicant assumed had reported or was responsible for reporting the incident to security;

	c.  the applicant states he conducted an inventory and notified the unit commander of the missing items; and 

	d.  the 307th PSYOP company commander acknowledged that he had been notified of the break-in on or about 18 or 19 December 2006 by the unit administrator [not by the applicant].

3.  On 26 February 2007, a DD Form 200 was prepared based on a change of command inventory conducted between 5 and 10 February 2007.  The inventory shows grand total of the missing OCIE was valued at $20,610.10.  However, the dollar amount of loss reflected on the DD Form 200 is $15,122.25.  

4.  An investigating officer was appointed to conduct a FLIPL investigation to determine the amount and liability for the loss of the missing equipment.  The investigating officer found the following:

	a.  at an undocumented point the structure housing the 307th PSYOP company's OCIE storage cage was broken into.  On 26 July 2007, the investigating officer personally observed and photographed the door that was the alleged entry point.  It had been nailed shut and a new lock affixed on it;

	b.  he was unable to determine if a report had been made to either the local police or Jefferson Barracks security and no record of the break-in was found in the Jefferson Barracks Security log;

	c.  during the month of December 2006, the unit commander had been principally concerned with preparations for mobilization training and left the unit without completing a change of command inventory due to deployment in support of Operation Iraqi Freedom;

	d.  he noted that depreciation had not been taken into consideration for determining a correct monetary liability and reduced the monetary value to $15,122.25; 

	e.  the investigating officer determined that simple negligence was the cause of the loss and both the unit commander and the applicant were jointly liable for the loss; and
	
   f.  it was determined that the 307th PSYOP company commander had a liability in the amount of $6,252.30 (one month's pay cap) and applicant had a liability in the amount of $3,064.50 (one month's pay cap).

5.  On 23 September 2007, a legal review was conducted that supported the finding of the investigating officer and rendered the opinion that the company commander and the applicant were jointly liable of simple negligence due to a failure of accountability.

6.  On 26 September 2007, the Commanding Officer, 7th Psychological Operations Group, notified the applicant that a financial liability was assessed against him in the amount of $3,064.50 and advised him of his legal rights.

7.  On 24 October 2007, the applicant submitted a rebuttal to the findings.  He continued to contend that the sergeant who notified him of the break-in was responsible to notify the police or security of the break-in.  After completion of an inventory to determine what items were missing, he notified the company commander of the loss.  Further, after 17 December 2006, he was no longer a part of the company and at the time the FLIPL was conducted he was deployed.

8.  In the development of this case, on 10 March 2009, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-4, Acting Director of Supply.  It was opined that the applicant failed to take prudent action to account for property loss from the day he discovered the break-in.  He demonstrated negligence as there is no indication he personally notified the police or security of the break-in.  As a school trained supply clerk he was aware of his responsibilities to safeguard items under his assigned responsibilities.

9.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant submitted a rebuttal on 2 May 2009, where he essentially reiterated that he contested the FLIPL decision and maintained that he should not be held liable for missing items as a result of the break-in.

10.  Army Regulation 735-5 (Policies and Procedures for Property Accountability), chapter 13, 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 or damage would not have occurred.  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 FLIPL's, 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's 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 FLIPL's initiated for those organizations supported; and 

	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 own 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 proper procedures were not followed in the preparation of the investigation report or in the notification of his liability for the loss of property as a result of a break-in of his unit's storage locker. 

2.  There are questions as to exactly when the break-in occurred, what equipment was lost, who was responsible for the loss, and who was responsible for reporting the break-in to proper authorities.  

3.  SGT K____ was the person who found the storage unit had been broken into.  As such, he is the individual who should have reported the break-in to security.  

4.  While it is reasonable to assume that a person responsible for control of inventory items would follow up to ensure an investigation was completed, there is no indication that a written policy or the procedures for such an incident are or were promulgated.

5.  Furthermore, the fact that the applicant conducted an inventory to determine what items were missing and reported the loss to his chain of command can be considered a reasonable and prudent course of action as a follow up to the break-in.

6.  The FLIPL does not document that the applicant was negligent in the loss of the property.  It states that he was negligent in not personally contacting law enforcement personnel to report the break-in.  It does not show that his action or lack of action was the proximate cause for the loss of the property. 

7.  In this case, the loss of property was a direct result of a third party over which the applicant had no control; therefore, the applicant should not be held liable for the loss and any and all monies withheld should be reimbursed to him.  

BOARD VOTE:

____X____  ___X_____  ____X____  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:

	a.  showing that the applicant was not negligent in the loss of property from the  307th Tactical PSYOP company's OCIE; and 

	b.  reimbursing to the applicant all monies withheld for the loss of the property from the 307th Tactical PSYOP company's OCIE.



      __________XXX____________
               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)                                         AR20080017728



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ABCMR Record of Proceedings (cont)                                         AR20080017728



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