IN THE CASE OF:	

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090003471 


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 reversal of the finding of liability of FLIPL (Financial Liability Investigation of Property Loss) 25-xx, dated 14 July 2006, for losses discovered in the amount of $6,818.10 as a result of a change of command inventory for one of his companies while he was serving as the battalion commander.  He further requests that he be refunded all monies already collected as a result of the FLIPL action.

2.  The applicant states, in effect, that there is insufficient evidence to establish negligence or wrong-doing on his part, to establish proximate cause, or otherwise support a finding of liability against him as the battalion commander.  He goes on to state that he never signed for the property for which he is being charged and that the company commander signed the property book and hand receipt for all equipment belonging to Headquarters Support Company (HSC).  The company commander was required to conduct regular inventories, which he did; however, he failed to issue temporary hand receipts for the property.  He continues by stating that the investigation was not conducted in a timely manner in accordance with the applicable regulation; however, the investigating officer found no financial liability with him as the battalion commander during his investigation and made a finding that the outgoing HSC commander was liable for the losses.  However, the group commander made a determination that he (the applicant), the outgoing commander, and the incoming commander should be found liable.  He also states that due to decisions made by the group headquarters, the HSC commander was deployed on short notice; a new commander was selected and inventories were conducted in an expedient manner; and he ensured that 
inventories were completed and took disciplinary action against commanders and supply personnel who failed to complete their actions in a timely manner.  In addition, he also recovered thousands of dollars worth of equipment missing from deployments to Iraq and Afghanistan prior to his tenure.  He further states that during his 2-year tenure as a battalion commander, he received two DA Forms 67-9 (Officer Evaluation Report (OER)) in which he was evaluated above center-of-mass and he was repeatedly praised for his leadership, property accountability, and in particular for his recovery of equipment lost from previous commanders and deployments.  Furthermore, because the FLIPL was not conducted in a timely manner, it prejudiced his ability to recover evidence, interview key witnesses, and support his case.

3.  The applicant provides a self-authored three-page brief, dated 9 December 2008; a time-line of key events; a copy of the FLIPL, dated 14 July 2006; a copy of the FLIPL approving authority's findings, dated 22 April 2007; a copy of the applicant’s FLIPL rebuttal, dated 9 May 2007, and denial, dated 31 May 2007; a copy of his request for reconsideration, dated 19 July 2007, and the denial of his reconsideration request, dated 25 October 2007; and copies of two OERs for the periods "20050501 thru 20051203," and "20051204 thru 20060708."

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a Regular Army (RA) infantry second lieutenant on 15 May 1983.  He served on active duty until he was honorably discharged on 1 November 1987 in the rank of captain for miscellaneous reasons (Unqualified Resignation).

2.  On 20 November 1987, while attending the University of Virginia Law School, he accepted an appointment as a U.S. Army Reserve (USAR) captain.  He has continued to serve in the USAR and he was promoted to the rank of lieutenant colonel on 24 July 2002.

3.  In April 2004, the applicant was assigned to a civil affairs command in Maryland and he was serving in Iraq as a civil affairs officer when he was selected for battalion command.  On 30 April 2004, a new commander assumed command of HSC, 11th Psychological Operations (PSYOPS) Battalion.

4.  On 1 May 2004, the applicant assumed command of the 11th PSYOPS Battalion.  He received his first OER in that position in June 2005 and his senior rater (a major general) commented that the applicant had improved property accountability in the unit.

5.  The applicant received a change of rater OER ending in December 2005 and his rater (the group commander) commented that the applicant was forced to personally deal with property accountability by a particularly difficult change of command inventory.  He shut down the battalion to resolve post-Operation Iraqi Freedom (OIF) discrepancies and deficiencies that occurred before his tenure.  His actions recovered over $60,000.00 worth of Organizational Clothing and Individual Equipment (OCIE), not to mention the Modified Table of Equipment (MTOE) that has now been accounted for on property books still in Iraq.

6.  His senior rater (a major general) commented that the applicant’s battalion was ravaged by back-to-back deployments and continuous cross-leveling of personnel and equipment and it has taken strong, committed leadership and closely involved senior management to get personnel and equipment accountability issues under control.  He also stated that few officers could have accomplished so much in such a short time and that the applicant had proven his talent.

7.  Meanwhile, on 18 November 2005, the HSC commander was identified for deployment along with his first sergeant and supply specialist.  The HSC commander departed for Fort Bragg, NC to attend training (Psychological Operations Officer Qualification Course) on 2 January 2006, without transferring his hand receipts.

8.  On 8 January 2006, a new commander for HSC was identified and in late January 2006, the change of command hand receipts arrived at the unit from Fort Bragg and the incoming commander began the task of inventorying the unit.  He could not account for all of the property and refused to sign for equipment that was not accounted for and he requested a report of a survey be conducted.  In June 2006, a request for a FLIPL was forwarded to group headquarters.

9.  The applicant received a change of duty OER covering the period from 4 December 2005 thru 8 July 2006 in which his rater (a colonel and group commander) stated that the applicant’s "tenacity building an organization that is administratively, operationally, and logistically sound has been his strongest trait."  His senior rater (a major general) stated that the applicant’s "day-to-day management of the administrative, operational, and logistical activities of his battalion is without peer."

10.  The applicant changed command of his battalion on 9 July 2006 and on 14 July 2006, the incoming commander of HSC signed the change of command inventory and a FLIPL was formally started.  On 10 August 2006, the incoming commander formally assumed command of the HSC.  The applicant was transferred to a civil affairs command and on 14 December 2006, he was promoted to the rank of colonel (COL).

11.  On 4 February 2007, the formal FLIPL was completed by the investigating officer (who subsequently succeeded the applicant as battalion commander).

12.  The investigating officer found no financial liability with previous battalion commanders (including the applicant).  He found a lack of a battalion command supply discipline program (CSDP) through the tenures of the two previous commanders; however, he found that a lack of a formal program did not alleviate the HSC Commander from exercising his command and direct responsibility as defined in Army Regulation 735-5 (Policies and Procedures for Property Accountability) and opined that it involved simple negligence on the part of the outgoing HSC commander that resulted in a loss of $23,516.21 of government property.

13.  The completed FLIPL was forwarded to the FLIPL approval authority who was also the group commander and on 22 April 2007, the group commander found that the applicant, as the battalion commander, was financially liable in the amount of $6,818.10 for failing to ensure that the battalion had an effective CSDP.  He also found that the out-going and in-coming HSC commanders were financially liable in the amounts of $3,736.20 and $4,297.50 respectively.

14.  A memorandum was dispatched to the applicant on 23 April 2007 notifying him that he was being held financially liable in the amount of $6,818.10 for the loss of government property and after consulting with counsel, he submitted a four-page rebuttal on 9 May 2007.

15.  On 31 May 2007, after reviewing the applicant’s rebuttal, the group commander notified the applicant that he had approved the charge of financial liability against him.

16.  The applicant filed an appeal of the FLIPL to the major command (MACOM) and on 25 October 2007, the commanding general (a major general) denied his appeal.

17.  In the processing of this case, on 11 August 2009, a staff advisory opinion was received from the Director of Supply, Office of the Deputy Chief of Staff, G-4, Washington, DC, which recommended that financial liability assessed against the applicant be upheld and that he be assessed $6,818.10 for the lost equipment indicated on the FLIPL due to his failure to ensure that his battalion had an effective and functioning CSDP and for being negligent in holding commanders accountable.
18.  On 13 August 2009, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 29 September 2009 he responded to the effect that the Board should reverse the finding of financial liability against him based on a lack of evidence to support a finding of negligence or wrong-doing, a lack of proximate cause that his actions led to the loss, strong contrary evidence of his leadership in property accountability, a lack of factual support for financial liability against him, and denial of his due process of law.

19.  Army Regulation 735-5 prescribes the basic policies and procedures in accounting for Army property.  It provides in pertinent part, that commanders at all levels will ensure compliance with all policies and procedures in this regulation and will implement a CSDP.  It further states that all persons entrusted with Government property are responsible for its proper use, care, custody, safekeeping, and disposition.  Persons will not be assigned to a duty that will prevent them from exercising proper care and custody over property for which they are responsible.  At the user level, all on-hand property carried on property book records and/or hand receipt records will be inventoried annually, or upon change of the primary hand receipt holder, whichever comes first.  Upon change of the property book officer, all property not issued on hand receipt will be jointly inventoried by the outgoing and incoming property book officers.

20.  That regulation defines “Command Responsibility” as the obligation of a commander to ensure that all Government property within his or her command is properly used and cared for and that proper custody, safekeeping, and disposition are provided.  Command responsibility is inherent in command and cannot be delegated.  It is evident by assignment to a command position at any level.

21.  The regulation defines “Direct Responsibility” as the obligation of a person to ensure all Government property for which he or she has receipted, is properly used and cared for, and that proper custody, safekeeping, and disposition are provided.

22.  Section IV, chapter 13, of the same regulation provides guidance on processing financial liability investigations.  Paragraph 13-22b contains guidance on assessment of financial liability and states, in pertinent part, that when the approving authority can establish from the information contained in the DA Form 200 (Transmittal Record) and attached exhibits that negligence or willful misconduct was the proximate cause of the property loss, he or she may assess financial liability.

23.  The same regulation further stipulates that before holding a person financially liable, the facts must clearly show that person's conduct was the "proximate" cause for the loss.  That is, the person's acts or omissions were the cause that, in a natural and continuous sequence unbroken by a new cause, produced the loss and without which the loss would not have occurred.

24.  Army Regulation 710-2 (Supply Policy Below the National Level) prescribes policy for supply operations below the National level.  Appendix B implements the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that there is insufficient evidence to establish negligence or wrong-doing on his part, to establish proximate cause, or otherwise support a finding of liability against him as the battalion commander has been noted and appears to have merit.

2.  The investigating officer, who was also the incoming battalion commander, found no liability on the part of the applicant in his investigation and recommended that the outgoing company commander, who was signed for the equipment, be held liable for the losses.  However, the group commander/
approval authority determined that the applicant should be held liable, along with the outgoing and incoming company commanders, because of his failure to have an effective CSDP.

3.  While it cannot be determined with any degree of certainty whether or not the applicant had an effective CSDP within his battalion, his evaluation reports indicate that he was successful in supply accountability and that he had recovered and accounted for much property that had not been accounted for previously or had been lost or misplaced due to deployments, which would tend to indicate that supply accountability was one of his priorities.

4.  It is also noted that the outgoing company commander was directed by group headquarters to deploy with another unit and he departed the command before an inventory and change of command could be accomplished.  This directive, in itself, appears to have caused part of the problem, in that the outgoing commander did not complete or was not able to complete a change of command inventory before his departure.  The officer that took over as company 
commander inherited a mess and initially refused to accept responsibility for the unit’s property until a complete inventory could be conducted.  Manning shortages delayed completion of that inventory.

5.  Although the applicant, as the battalion commander, could have directed that more stringent safeguards be instituted until the property could be properly accounted for and transferred to the incoming commander, the ultimate responsibility rested with the outgoing company commander who signed for the property.  The company commander had virtually no workable accountability procedures in place.  Any delay by the applicant in instituting more stringent safeguards would not have mattered because manning shortages still would have prevented a complete and accurate inventory.  The applicant implemented the measures to correct supply discipline problems in a reasonable manner under the circumstances.

6.  It is further noted that the group commander elected to hold the applicant financially responsible for the lost property along with the incoming and outgoing commanders, using the concept of command responsibility.  However, the group commander was responsible for transferring the outgoing commander before he could properly change responsibility for his property and thus, as a commander, he was in-part just as responsible for the losses under the concept of command responsibility.

7.  While command responsibility is an integral part of the CSDP, the ultimate responsibility for accountability is with the person who is signed for the property.

8.  Notwithstanding the advisory opinion, the available evidence of record does not support a finding that the applicant was the proximate cause for the loss of the property in question nor does it suggest that the applicant was negligent in command responsibilities.  Accordingly, he should be relieved of any financial liability associated with the loss of the property in question and all monies collected from the applicant as a result of those findings should be refunded to the applicant. 

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.  relieving him of any financial liability associated with the loss of the property in FLIPL 25-xx, 14 July 2006; and

   b.  refunding to him all monies already collected as a result of the FLIPL.



      ___________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)                                         AR20090003471



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003471



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1