IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090001295 


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 correction of her military records to expunge a finding of financial liability for loss of government property.

2.  The applicant states that a Financial Liability Investigation of Property Loss (FLIPL) found her financially liable for $80,708.43 in lost government property.

3.  The applicant provides no additional documents in support of her application.  She deferred to her counsel.

 COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant 's records to show no financial liability on her part for the loss of government property.

2.  Counsel states in a seven-page memorandum [summarized here] that the applicant has suffered not only a financial injustice because of this error, but also an unwarranted blemish on her military reputation.

	a.  Prior to the applicant's assignment as the unit hand receipt holder, Headquarters and Headquarters Company (HHC), 1st Armored Division, and its subordinate units reorganized in preparation for an impending deployment.

	b.  The 1st Armored Division reorganization included the formation of a Special Troops Battalion (STB), the splitting of HHC into Company A and Company B and moving them under the STB, and creating a new unit identification code (UIC) for consolidating all equipment designated for deployment.  The rear detachment would utilize a separate UIC for all left-behind equipment.

	c.  In February 2007, several 1st Armored Division units inactivated.  The 501st Military Intelligence Battalion, Division Support Command, Division Engineer, and Division Artillery transferred their property to the subject hand receipt.  Between February and May 2007, other units would also transfer their property to this hand receipt.

	d.  In April 2007, the 1st Armored Division Headquarters moved with other 1st Armored Division units to Hohenfels, Germany, for a mission rehearsal exercise (MRX).  At the same time Company A had a change in commanders.  Supply personnel had to conduct simultaneously, a change-of-command inventory, a split-book property inventory, and a lateral-transfer inventory.  These inventories took place even as equipment moved physically between Wiesbaden and Hohenfels, Germany, and on paper between deploying and left-behind equipment categories.

	e.  In June 2007, the hand receipt officially moved to the rear detachment UIC and the applicant became the hand receipt holder.  The Commander, Company A, received orders to inventory the deploying equipment, including property transferred from the 501st Military Intelligence Battalion, Division Artillery, and the 41st Signal Company.  The applicant received orders to inventory only the left-behind equipment.  She completed a 100-percent inventory of all items that were on her hand receipt at that time.

	f.  In the fall of 2007, the applicant received a revised hand receipt listing a substantial amount of additional left-behind equipment she had not known about.  The STB commander ordered the applicant to sign for all of it.  She declined.  Three months later, the applicant again received orders to sign for this equipment.  This time she was told she could not go home until she signed for the equipment.  She highlighted in pink the items that she had seen.  Feeling under pressure, she signed the hand receipt intending only to acknowledge the items she highlighted.

	g.  The status of equipment often changed without notice to the applicant.  The STB commander ordered several Soldiers to cut locks on secured storage areas to obtain equipment without informing the applicant.

	h.  Searches for missing property continue.  As recently as October 2008, additional property was located.  Several storage containers still have not been opened in this search.  This ongoing search will continue to uncover unaccounted for equipment.

	i.  The STB commander has launched two separate FLIPL's involving three investigating officers.  He has also ordered a third FLIPL that covered much of the same property for which the applicant has already been held liable.  Two of the investigating officers found the applicant's actions amounted to negligence, but did not find her directly responsible for the loss of the property.

	j.  The applicant submitted a timely rebuttal to the FLIPL findings.  She made a timely request for reconsideration, which was denied.  She has exhausted her administrative remedies and seeks corrective action from this Board.

3.  Counsel argues that there were procedural deficiencies.

	a.  Insufficient disclosure:  The original financial liability officer failed to make the required documents available to the applicant.  Army Regulation 735-5 (Policies and Procedures for Property Accountability), paragraph 13-42, provides that all exhibits must accompany each notification of liability.  The applicant never received a list of the items for which she has been charged.  This significantly hindered her ability to rebut the allegations against her.

	b.  Inadequate investigation:  The financial liability officer failed to seek out all the facts surrounding the loss, damage, or destruction of government property as required by Army Regulation 735-5, paragraph 13-31.  Individuals who cut the locks or knew about ongoing accountability deficiencies that made it impossible for the applicant to locate certain equipment were not interviewed.

	c.  Insufficient search:  Storage containers remain unsearched.  Several individuals feel strongly that the "lost" equipment has been misplaced only temporarily.  Holding the applicant financially liable for this property before reasonable opportunities to search for it have been exhausted constitutes a premature decision that violates Army regulations.

	d.  Bias:  A noncommissioned officer (NCO) made a sworn statement that the applicant "was set up to fail."  Other Soldiers echoed this sentiment in conversations with legal assistance attorneys, but declined to make statements for fear of reprisal.  The command decided that the applicant would pay for the missing equipment and refuses to budge from this position regardless of the evidence.

4.  Counsel argues that the applicant was under duress, had no special training in accountability procedures, and suffered from severe depression.  The applicant inherited hand receipts amidst the chaos of an MRX and a pending deployment.  Accountability procedures were widely ignored.  Lateral transfers did not occur.  Soldiers received equipment without signing sub-hand receipts.  Inventories were conducted haphazardly, if at all.  The facts of this case did not support a finding of financial liability.  A preponderance of the evidence did not demonstrate that the applicant acted negligently or that her actions were the proximate cause of the loss of government property.  The investigation failed to take into account several intervening causes, including unauthorized entries into secured areas and the loss of accountability that existed for years before the applicant became the primary hand receipt holder.  It also ignored crucial evidence pertaining to the applicant's physical condition, lack of experience, and the command climate.

5.  Counsel provides, in support of the applicant's request, copies of sworn and unsworn statements, memoranda for record, memoranda for specific individuals, and an All Army Activities (ALARACT) message dated November 2005, subject:  Army G4 Property Accountability Guidance, totaling thirteen documents.

CONSIDERATION OF EVIDENCE:

1.  At the time of the applicant's application, she was serving in the Regular Army as a sergeant first class, pay grade E-7.  Her military occupational specialty is 92G (Food Service Advisor).

2.  On 13 March 2008, in a memorandum for record, subject:  Army Regulation 15-6 Findings and Recommendations, FLIPL TFI-08-***, the investigating officer (IO) provides the purpose, scope, authority, and investigative methodology of his investigation.  He was directed to investigate the loss of accountability for all items under the Company A rear detachment property book and was instructed to give particular emphasis to the factors or series of factors that contributed to the incident, to acts or events that constituted a violation of the law, to action that could have prevented the loss of property under investigation, and to any violation of the law or Army regulations concerning property accountability.  He states that he took a holistic approach in order to determine the constituents that played a role in the transfer of the property.  As such, statements were requested from the outgoing and incoming primary hand receipt holders, the property book officers involved, and personnel from the supply sections of each company.  These statements were complemented with personal interviews of witnesses.  The IO contacted the outgoing commander, incoming commander, Asset Visibility Officer, and the team chief for the Property Book Office.  There is no indication in the report that the IO received any direct evidence from the applicant.  The IO's findings with regard to the applicant were:

	a.  that the applicant was the rear detachment NCO in charge and the hand receipt holder for the left-behind equipment,

	b.  that the applicant had numerous issues identifying the left-behind equipment as the sections failed to update her in a timely manner on the deployable equipment status,

	c.  that the applicant appeared to be overwhelmed and consequently failed to maintain proper situational awareness of the items being inventoried,

	d.  that the applicant failed to maintain administrative discipline by listing property previously accounted for as missing, and

	e.  that the applicant failed to provide proper custody and safekeeping of controlled cryptographic items (these items were later accounted for) constituting a violation of Army regulation.

3.  In a memorandum for record, dated 14 April 2008, the Plans Officer, Task Force Iron Sentinel, stated, in part, that the applicant's actions, or lack thereof, alone were not the proximate cause for the loss of property.

4.  On 20 April 2008, the Commander, STB, wrote in a memorandum for record, subject:  FLIPL TFI-08-***, the following [summarized]:

	a.  The commander partially concurred with the IO's recommendations.  Areas where he differed with the IO were annotated by line item in the modified annex of the IO's report [not available for review].

	b.  The commander recommended that the HHC, 1st Armored Division, supply sergeant and the applicant be held jointly accountable for all losses the IO held Captain T____ accountable.

	c.  The commander personally believed that the losses identified by the FLIPL were due to poor accountability by the supply section, to poor inventory procedures by the rear detachment property book holder, to a push for hasty vacating of buildings, to the improper hand off of left-behind equipment, to some equipment being excess or obsolete and at risk for loss of accountability, to true excess and poor accountability of property over many years, and to inaccurate posting of property books.

	d.  The commander stated that this FLIPL did not mark the end of the search for missing property.  He believed that 75 percent of the missing equipment was sitting in a storage area and can be found.  $8.3 million of the original $8.6 million was recovered.

5.  In a memorandum for the Deputy Chief of Staff, 1st Armored Division, dated 24 June 2008 the Chief, Administrative and Civil Law, found the subject FLIPL to be legally sufficient; however, he recommended further investigation to find the remaining "lost" equipment.  A preponderance of the evidence supported the findings and recommendations as revised by the appointing authority.  While the property may be recoverable, under the definition of lost property in Army Regulation 735-5, the property is currently lost as it cannot be found or accounted for by the last individuals in the audit trail.  After months of investigation, the equipment still cannot be accounted for or found.  The loss of property accountability, more likely than not, is the result of a failure of hand receipt holders to either sub-hand receipt property to the intended user or staff section; or, to alternatively obtain turn-in documentation to show a clear audit trail.  It is reasonable to conclude that these factors combined are the immediate or direct cause of the "loss."  This allowed staff sections to switch property designated as left-behind equipment with property designated to deploy and vice versa with no notice to the company or rear detachment commanders or supply teams.  It is reasonably foreseeable that a lack of proper documentation and supply discipline would result in a loss of property accountability and that a reasonably prudent person would not have acted similarly under these circumstances.

6.  On 8 September 2008, Sergeant J____ L. N____ made a sworn statement essentially saying that he was responsible for the day-to-day handling of equipment for Company A, 1st Armored Division.  The [outgoing] company commander ordered the applicant to inventory the left-behind equipment and the [incoming company commander] to inventory the deploying equipment.  The outgoing commander was not present for any of the inventories which was different from other changes of command.  Equipment was constantly being changed from left-behind equipment to deployed [status] without any notice to the personnel conducting the inventories.  The property book officer allowed this to happen without notice.  The applicant could not possibly keep a property book on it, nor could anyone else, because equipment was constantly being moved onto her list.  The incoming commander told the applicant not to conduct a complete inventory.  "I get the sense that the orders not to conduct 100-percent accountability came from above.  I also get the sense that [the applicant] and [the incoming commander] didn't like what they were being told to do."  The applicant knew nothing about property because she always worked in the First Sergeant's office.  In the fall of 2007, a lock was found on the ground in front of a bunker.  This happened two or three times in the same area.  This was evidence of a loss of control.  It bothered him because he was signed for equipment [stored in the bunker].  He inventoried it and found it was all there.  The sergeant further stated that he did not think the applicant should be held liable.  She did the best she could.  She had no knowledge of property accountability and was not allowed to follow the correct property accountability protocols.  "She was set up to fail."  She was put into a position without adequate training or knowledge because [the command] needed someone to pin the blame on for the missing equipment.

7.  In a memorandum for record, dated 17 September 2008, the Legal Assistance Attorney, Headquarters, 1st Armored Division, writes, in essence, that Staff Sergeant G____ K____ expressed concern over the possibility of command reprisal but made a statement freely, voluntarily and without coercion or duress before the attorney and Captain R____ S____.  He agreed to return the next day to sign a sworn statement but did not do so.  The attorney stated that he had no reason to doubt the veracity of the Soldier's statement.  The unsigned statement provides [in summary]:

	a.  The staff sergeant worked as an operations sergeant from 2006 through October 2007 and learned about property accountability by dealing with it through the years.

	b.  The inventory was not thorough.  No guidance was provided.  They were given a list and told to "go find the stuff."  "I was supposed to find the left-behind equipment, only the stuff that belonged to G-2 – laptop computers and stuff.  It was impossible.  Some equipment had no serial numbers.  When the units merged, people just threw stuff together.  Captain T____ was the primary hand receipt holder and outgoing commander, and he was the one who was supposed to know what all the equipment looked like, but he wasn't there for the inventories, and none of us knew what it looked like.  Usually the outgoing CO [commanding officer] is present for the inventory, and he signs it over to the incoming CO.  That didn't happen this time.  If Captain T____ was present we would have been able to accurately identify all of the property.  In fact, there was no lateral transfer done at change of command for at least three to five CO's before Captain T____.  The records showed that they weren't done right.  Equipment was missing for 4 to 5 years."

	c.  Captain S____ [the incoming CO] was trying to do inventories the right way.  But then he got rushed.  He was told to hurry up and was not able to perform a complete inventory.

	d.  After the deployment, word came back that there was a lot of pressure to account for everything.  The applicant talked about it.  She said that the STB commander had ordered her to sign for some equipment that she had never even seen.  After that, people downrange started to put pressure on her.  They threatened her, saying that she had to sign for the missing equipment.  They told her she could not go on leave.  They set her up to fail.  They put her in a bad situation and made her the fall guy.  It was so bad that she started to have mental health problems.

	e.  A lot of the missing equipment was probably downrange.  There was no proper inventory, so no one knew what went where.  With a proper inventory, they will probably find most of the stuff.

8.  In a memorandum for record, dated 13 October 2008, a subsequent IO provided his findings and recommendations.   The scope of his task was to identify the facts and circumstances surrounding the loss of equipment, and/or the loss of accountability of equipment, and to determine if someone's negligence or willful misconduct was the proximate cause.  The IO's scope of this investigation started on or about 14 March 2008, at the beginning of the turnover of hand receipt holders, and ended on 28 June 2008, when the hand receipt was signed by Sergeant First Class P____.  During the course of the IO's investigation, the following facts were established:

	a.  In March 2008, a change of command hand receipt was developed in order to turn over the primary hand receipt holder duties from the applicant to Sergeant First Class P____.   The applicant did not sign the March 2008 hand receipt.  The turnover took 3 months.  Sergeant First Class P____ signed the hand receipt on 28 June 2008.

	b.  The applicant was clinically depressed, on limited duty due to physical profile, and on medication.  She never had exclusive control and accountability of her equipment.  At the time of the turnover, there were many personnel who had access to her containers in the basic load storage area (BLSA).

	c.  There was never a 100-percent inventory conducted of the items on the hand receipt.

	d.  The applicant had an assistant, Sergeant N____, who was authorized to conduct all property book transactions.  Also, Private First Class F____ was on the applicant's signature card and had signed several lateral transfers.

	e.  The private first class was absent without leave and the subject of a criminal investigation.

9.  The IO cited the following contributing factors:

	a.  Lack of command supply discipline procedures within Company A, STB (Rear):  Even though the applicant refused to sign the March 2008 hand receipt, she was still responsible under the roles and responsibilities as a hand receipt holder.  If there were discrepancies on the hand receipt, they should have been documented within 30 days, which she did not do.  Also, there was no filing system for documenting her transactions.

	b.  Lack of property control:  Superseding events had an impact on this investigation.  Although those events were beyond the scope of this investigation, they demonstrated that the applicant never had control of her property.  Also, the hand receipt account was not frozen during the turnover.

	c.  Limited manpower:  The rear detachment had property accountability as a key task but did not have enough resources to provide all the manpower required to conduct a 100-percent layout and see all of the equipment.

	d.  Medical:  The command did not know of the applicant's medical condition until December 2007, when the amount of missing equipment and activity had stressed her.  Her medical condition had a significant adverse impact on her abilities and actions.  Her profiles from January to August 2008 increasingly limited her duty.  Her required treatment at Landstuhl Regional Medical Center further shortened her work week.  All of these factors limited her ability to maintain control of the property.

	e.  Over-tasked assistant:  Sergeant N____ was responsible for five other supply accounts and the arms room.  The scope of responsibility was beyond the normal responsibilities of an inexperienced sergeant, pay grade E-5.

10.  The IO concluded that the applicant did not have complete ownership of her equipment.  She failed to get control of her property.  There was never a plan to provide for a well thought out and coordinated turnover.  The applicant's medical condition had a significant impact on her abilities to perform.  The unit was assisting in BLSA operations, searching for items from a previous FLIPL, and supporting garrison functions.  At no time was the property account frozen to help establish a firm baseline.  These factors are all more likely causes for the loss of accountability.  The IO could not find any individual financially liable.

11.  The IO recommended, in part, that the parties, including the applicant, be relieved of financial liability.  While the applicant may have been negligent in her duties as a hand receipt holder, her actions were not the proximate cause of the unaccountable equipment.

12.  On 27 October 2008, the Chief, Administrative and Civil Law, determined that the IO's investigation was legally sufficient to assess no financial liability, but that the investigation did raise a number of issues which may warrant further investigation.  The recommendation was to either approve the IO's findings and recommendations or to return the investigation to the IO for further investigation.

13.  On 10 November 2008, the IO provided an addendum to his investigation wherein he responded to specific concerns from the appointing authority.  The IO stated that his findings did not change and that he could not assign financial liability.  He further stated that he thought the best time to locate all of the unaccounted for property would be during the reconsolidation of the forward and rear property books.

14.  On 31 December 2008, the applicant received an NCO Evaluation Report (NCOER) for the period 15 September 2007 to 14 September 2008.  Part IVf (Responsibilities and Accountability) of this NCOER shows that the applicant was rated as "Needs Improvement."  The bullet comments included, "her inability to maintain proper and accurate property accountability led to inconsistent property management; resulted in two FLIPL's."  Part V (Overall Performance and Potential) shows in the bullet comments, "NCO refuses to sign."

15.  On 30 April 2009, the applicant retired for sufficient length of service.  She had completed 21 years, 2 months, and 8 days of creditable active duty service.

16.  In the processing of this case, an advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4 (Logistics), Washington, DC.  The opinion stated that the applicant, a food service advisor, had exercised reasonable and prudent actions to properly inventory and account for the equipment in her possession under the circumstances.  The task included overseeing change-of-command inventories, conducting/splitting property book inventories, and lateral transfers.  Accounting for this magnitude of equipment on the rear detachment UIC would have been a challenge for a trained senior supply sergeant.  The command leadership did not properly ensure the applicant could perform the assigned task of a primary hand receipt holder in accordance with Army Regulation 710-2 (Supply Policy Below the National Level).  Also, there were three separate investigations conducted wherein all three concluded there was a lack of sufficient evidence to find the applicant negligent or financially liable for any equipment losses.  The opinion recommended that the financial liability assessed against the applicant be cancelled, that she be refunded all monies deducted from her pay as a result of this FLIPL, and that her records be corrected [to remove all documentation related to this action].

17.  On 16 June 2009, the applicant concurred with the advisory opinion.
DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that the applicant should be relieved of all financial liability concerning the subject FLIPL's and that her records be corrected to expunge all related documentation.

2.  The available evidence shows that the applicant was assigned duty as a primary hand receipt holder for a large, complex organization that was undergoing major reorganizations and preparation for deployment.  Furthermore, the evidence shows that the applicant was not properly trained for this assignment and did not receive adequate supervision and guidance from her leadership.  This stressful situation resulted in the applicant becoming depressed and having to undergo mental health treatment.  Notwithstanding the reports of IO's recommending that the applicant not be held financially liable, the command assessed her with a financial liability of $80,708.43.

3.  There were three separate investigations conducted, wherein all three concluded there was a lack of sufficient evidence to find the applicant negligent or financially liable for any equipment losses.  The advisory opinion recommended that the financial liability assessed against the applicant be cancelled, that she be refunded all monies deducted from her pay as a result of this FLIPL, and that her records be corrected [to remove all documentation related to this action].

4.  The applicant's NCOER ending on 14 September 2008 states that her inability to maintain proper and accurate property accountability led to inconsistent property management and two FLIPL's.  However, the evidence presented in this case shows that while she was negligent in some aspects of her duties as a primary hand receipt holder, her actions were not the proximate cause of the loss of accountability.  Therefore, the NCOER should be corrected to delete all reference to the FLIPL's by removing the bullet, "her inability to maintain proper and accurate property accountability led to inconsistent property management; resulted in two FLIPL's."  Her rating for Responsibility and Accountability should be changed from "Needs Improvement" to "Success."  The bullet, "NCO refuses to sign," should be deleted from Part V.
 
5.  In view of the above, the applicant's request should be granted.



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.  voiding any and all financial liability connected to the subject FLIPL;

	b.  canceling any outstanding debt to the United States Government that is connected to the subject FLIPL;

	c.  refunding any and all monies that may have been deducted from her pay that are connected to the subject FLIPL; and

	d.  amending her NCOER ending on 14 September 2009 to delete all reference to the FLIPL's by removing the bullet, "her inability to maintain proper and accurate property accountability led to inconsistent property management; resulted in two FLIPL's"; changing her rating for Responsibility and Accountability from "Needs Improvement" to "Success"; and deleting from Part V the bullet, "NCO refuses to sign."



      ___________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)                                         AR20090001295





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ABCMR Record of Proceedings (cont)                                         AR20090001295



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