IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090000724


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 he be relieved of financial liability imposed by Financial Liability Investigation of Property Loss (FLIPL) 
Number 7-XX, dated 26 February 2008, and that he be refunded the $1,313.82 garnished from his wages as a result thereof.

2.  The applicant states, in effect, that the Financial Liability Officer (FLO) did not provide sufficient evidence to fulfill all four criteria necessary to prove his liability for the loss of two pieces of equipment as outlined in Army Regulation 735-5 by establishing loss, responsibility, capability, and proximate cause.

3.  The applicant provides the twenty-four exhibits listed on the Memorandum for Record (MFR), dated 6 January 2009, enclosed with his packet in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a captain (CPT) on active duty in the Regular Army.  His record shows he was promoted from first lieutenant to captain on 1 March 2003, and he was serving as the commander of the Multifunctional Forward Support Company in the Brigade Support Battalion of the 2nd Infantry Division in the Republic of Korea during the period in question.


2.  On 25 March 2007, a DD Form 200 (Financial Liability Investigation of Property Loss) was initiated.  It shows that the following government property valued at $2,654.55 was discovered as non-expendable shortages during a change of command inventory on 25 March 2007, by the applicant and another CPT, his successor:  

a. Sling Engine			(S25681)			$  485.00
b. Hose Adapter Kit 	(T30377) 			$  828.82
c. Yoke Tow/LFT		(WE1044)		$1,204.89
d. Hose Assembly		(W35417)			$   135.84

3.  Included with the DD Form 200 as Exhibit F was Commander, 702nd Brigade Support Battalion, Memorandum for Record, dated 1 August 2006.  In the memorandum the commander certified that the applicant, in his command position at the time, did not have any non-expendable shortage annexes on file in the Property Book Office.  He also stated that this discrepancy was found during the change of property book accountable officers, and that the applicant was given until close of business on 31 July 2006 to have a DA Form 2062 filled out and turned into the Property Book Office.  The commander further stated that the applicant failed to comply with the deadline and was therefore held accountable for all unaccountable and missing property.

4.  On 28 April 2007, having investigated FLIPL # 7-XX, the assigned FLO notified the applicant he was recommending that financial liability be assessed against him in the amount of $2,654.55 for the loss of government property.  The applicant was also provided an opportunity to submit a statement or other evidence to the approving authority in rebuttal to the recommendation.

5.  On 7 June 2007, the applicant issued a rebuttal to the FLO recommendation, indicating the investigating officer failed to obtain sworn statements from individuals having knowledge of the facts and circumstances surrounding his case and to conduct interviews with the Soldiers in the chain of property accountability.  The applicant confirmed in his rebuttal that the Sling Engine (S25681) and Hose Adapter Kit (T30377) were properly accounted for and secured during his initial change of command inventory in October/November 2005; but that they were sub-hand receipted to SGT EO and SGT KR, respectively.  

6.  The applicant also indicated that the Yoke Tow/LFT (WE1044) and Hose Assembly (W35417) were not tracked as being non-expendable shortages during his entire tenure of command and were accounted for as end items during the initial change of command inventory.


7.  On 18 June 2007, Headquarters, 2nd Infantry Division, Office of the Staff  Judge Advocate (SJA), having reviewed FLIPL # 7-XX and the FLO's recommendation, determined that the evidence was legally insufficient to hold the applicant liable for the value of the lost equipment.  The SJA further indicated that the FLO's analysis of the elements of financial liability was incomplete in that he failed to establish culpability and proximate cause.

8.  On 23 July 2007, a new FLO was appointed to reinvestigate FLIPL # 7-XX.  

9.  On 2 October 2007, the second FLO, having conducted his investigation into the loss of government property, admitted that although he attempted to contact all of the personnel listed in the applicant’s rebuttal, he was able to talk to and receive statements from only two personnel.  Neither of the two SGT’s identified by the applicant as sub-hand receipt holders provided statements.  Nevertheless the FLO indicated he found the applicant one hundred percent (100%) financially liable based on his ability to prove that the four financial liability conditions or elements, responsibility, culpability, proximate cause, and loss, exist in FLIPL     # 7-XX.

10.  On 11 October 2007, having reviewed FLIPL # 7-XX and the FLO's recommendation a second time, the SJA again determined that the evidence was legally insufficient to support the FLO's recommendation to hold the applicant liable for the value of the lost equipment.  The SJA indicated that while the FLO conducted a proper and thorough investigation, the resultant findings and recommendation of liability were not supported by the evidence.

11.  The SJA further stated that the scant evidence did not support a finding of proximate cause because while the applicant's culpability is apparent, it is not enough that an individual act negligently, but that the negligent act or behavior must be the proximate cause of the loss.  He further stated that the existing evidence suggests that the items in question were likely lost or inappropriately accounted for prior to the applicant's command.  Thus, he recommended that the approving authority relieve all individuals of financial liability.

12.  Based on the second legal review, the new FLO, having reevaluated the evidence contained in FLIPL #7-XX, submitted his amended findings on 30 October 2007.  The FLO indicated that the applicant clearly stated in his rebuttal to the initial investigation that two of the lost items were present during his tenure in command thereby establishing proximate cause for these items.  He further recommended the applicant be held financially liable for those items alone.


13.  On 2 November 2007, having legally reviewed FLIPL # 7-XX for a third time, the Chief, Administrative law determined that the FLO's recommendation that the applicant be held financially liable in the amount of $1,313.82 for a missing sling engine (LIN T30377) and missing hose adapter kit (LIN S25681) legally sufficient.  He also stated that the four requisite elements of loss, responsibility, culpability, and proximate cause existed to hold the applicant liable for these two items.

14.  On 30 November 2007, the applicant was notified of the approved charge of financial liability assessed against him in the amount of $1,313.82.  On 19 February 2007 [sic], he acknowledged receipt of this notification and his rights as indicated in his basic correspondence.

15.  On 26 February 2008, the applicant submitted a second rebuttal to FLIPL     # 7-XX, in which he states, in effect, that the four requisite elements necessary to prove his financial liability to the government do not exist in his case.   He also contended that the Battalion Commander's MFR, dated 1 August 2006, did not relieve sub-hand receipt holders of their duties and responsibilities to maintain the proper accountability and security for all property for which they signed.  He states that the missing sling engine and missing hose adapter kit were maintained and accounted for during the pre-change of command inventory conducted in October 2006 and that these items were identified as unaccounted for by the sub-hand receipt holder during the final change of command inventory in March 2007, at which time a DA Form 2062 (Hand Receipt) was completed.  He states that prior to then there was no basis for completing a DA Form 2062.

16.  In connection with the processing of this case, an advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4, Department of the Army.   This official recommended that the financial liability assessed against the applicant be upheld and he be assessed the $1,313.82 for the lost equipment on the FLIPL as indicated.  He further opined that the applicant failed to properly inventory and account for lost equipment per Army Regulation (AR) 710-2 and AR 735-5.  This official further stated that there was no evidence in this case to show that the equipment on the FLIPL was ever 
sub-hand receipted down to user level.

17.  The applicant was forwarded a copy of the advisory opinion on 16 June 2009, for his comments and/or rebuttal.  He did not respond.


18.  AR 710-2 (Supply Policy Below the National Level) prescribes policy for supply operations below the national level.  Appendix B implements the Command Supply Discipline Program (CSDP).  It states, in pertinent part, that the CSDP is a commander's program and that commanders will implement the CSDP by using their existing resources.  It further provides program guidance that includes enforcement of supply discipline methods, administrative measures, disciplinary measures, reaction to incidents of nonfinancial liability, and ensuring supply discipline and management controls.  

19.  AR 735-5 (Policies and Procedures for Property Accountability) prescribes the basic policies and procedures in accounting for Army property and sets the requirements for formal property accounting within the Army, which includes but is not limited to defining the CSDP, its intent, and implementing procedures.  It specifies that commanders at all levels will ensure compliance with all policies and procedures prescribed by this regulation that apply at their level of command.  

20.  Paragraph 13-29 of AR 735-5 states, in pertinent part, that before a person can be held financially liable, the facts must show that he or she, through negligence or willful misconduct, violated a particular duty involving the care of the property.  It also states, in effect, that before holding a person financially liable for a loss to the Government, the facts must clearly show that the person's conduct was the "proximate" cause of the loss.  That is, the person's acts or omissions were the cause that produced the loss and without which the loss would not have occurred.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the findings of FLIPL # 7-XX should be overturned and he be reimbursed the $1,313.82 financial liability assessed against him because the four requisite elements of loss, responsibility, culpability, and proximate cause were not substantiated in his case was carefully considered.

2.  By regulation, the CSDP is a commander's program and the commander is responsible for implementation and enforcement of supply discipline and for ensuring supply discipline and management controls are implemented and followed.  

3.   However, the evidence of record does show the applicant in rebutting the financial liability finding stated that the equipment in question was identified as accounted for during the pre-change of command inventory in October 2006.  The loss of equipment was not identified until the change of command inventory in March of 2007 and at that time the Battalion Commander was notified and a DA Form 2062 was completed to account for the loss.  The FLPL found the applicant to be liable because the applicant failed to maintain proper accountability for these items.  However, the facts established in neither of the FLIPLs clearly show that this negligence on the part of the applicant was the proximate cause of the loss of the property, especially in light of the FLO’s failure to interview either of the alleged sub-hand receipt holders or otherwise address the applicant’s contention that the missing property was properly sub-hand receipted.

4.  There is no evidence indicating that anyone in the FLIPL investigative chain ever evaluated, addressed and/or responded to the issues raised by the applicant in this rebuttal.  This failure to address his rebuttal combined with the several findings of legal insufficiency rendered prior to the final legal sufficiency finding present a compelling argument that financial liability for the equipment loss was not clearly established during the investigative process.  As a result, the record should be corrected to show the applicant was not found liable for the equipment loss.  

BOARD VOTE:

___X___  __X_____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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 not financially liable for the $1,313.82, as indicated in the FLIPL in question.






2.  That the Defense Finance and Accounting Service reimburse him any of the  $1,313.82 already collected as a result of the erroneous FLIPL finding in question. 




      _______ _ 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)                                         AR20090000724



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ABCMR Record of Proceedings (cont)                                         AR20090000724


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