IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090004908 


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 a Financial Liability Investigation of Property Loss (FLIPL) 
Number 31-XX, dated 26 February 2008, and that he be refunded the $1,000.00 garnished from his wages as a result thereof.  

2.  The applicant states, in effect, that the legal review of his investigation indicates there was no evidence to show he failed to perform his duties and that it was impossible to determine liability for the lost equipment.  He also claims that poor property accountability throughout the entire installation was well documented.  

3.  The applicant provides a self authored-statement with the identified tabs and accompanying documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as the Director of Environmental Programs (EP), at U.S. Army Garrison Dugway Proving Ground, (DPG), Dugway, Utah. 

2.  On 30 May 2006, a DD Form 200 (Financial Liability Investigation of Property Loss) FLIP 31-XX was initiated.  It shows that 32 items of government property with a total original government cost of $32,288.46 were lost.


3.  Included with the DD Form 200 as Attachment 1 was the Findings and Recommendations for FLIPL 31-XX by the Financial Liability Officer (FLO).  The FLO found after questioning the applicant that 29 items were missing with an original cost of $29,845.84 and after depreciation valued at $15,014.12.  The FLO stated it appeared no adequate hands-on inventory had been conducted in the EP office for several years.  The applicant recognized this deficiency in November 2005 and assigned a specialist hand receipt holder (HR) to help with the issues.  A complete hands-on inventory was conducted in April/May 2006 when it was discovered that the items listed in Attachment 1a were missing.  

4.  The FLO also stated that initially the root of the problem was that all turn-in and field test equipment was kept in a common access room and it was not properly secured.  However, since November 2005, turn-in equipment and natural resource equipment had been stored in properly secured rooms.  The FLO entered and inspected each room and observed that they were clean, well kept, and secure.  The EP office now has an HR process that should preclude loss and theft of HR items.  The FLO also stated that he found no evidence that there was negligence managing or utilizing the property investigated in the survey.  He further stated that before a person can be found culpable, the findings must show that there was negligence or willful misconduct displayed by the HR holder, none was found in this case.  The FLO recommended that the applicant be relieved of responsibility and accountability for the lost property.

5.  On 18 January 2007, the Command Judge Advocate after review of the supplemental findings and recommendations of the investigating officer determined his findings and recommendations were legally sufficient.  However, he indicated that pursuant to Army Regulation 735-5, prior to a person being held liable, the evidence must establish duty negligence (breach of duty), and proximate cause and that the facts of the case confirmed the applicant performed the annual inventories and completed the required turn-in papers and as a result he performed his duties.  This official further opined that although the items were still "missing" it was impossible to determine the culpable party because the turn-in papers were lost, and as a result it was impossible to determine liability.

6.  The Appointing and Approving Authorities rejected the FLO's recommendation of no liability and directed the FLO to reassess his investigation (twice).

7.  On 26 June 2007, the applicant submitted an appeal in response to the second resubmissions of the recommendations and findings of FLIPL # 31-06.  The applicant stated that he strongly disagreed with the conclusion that he was guilty of simple negligence, he believed the recommendation should be changed from simple negligence to "no negligence at all."  
8.  In his rebuttal, the applicant also stated that since August 2000, he had acted as a reasonably prudent and untrained person would have under similar circumstances in attempting to maintain control over property.  He further stated that four of the missing items under FLIPL #31-06 had been found and accounted for.

9.  On 17 September 2007, the applicant through his attorney requested reconsideration of the assessment of FLIPL 31-XX.  His attorney stated that due to legal errors and legal deficiencies he strongly encouraged a reversal of the decision and cancellation of the FLIPL.  He further stated that he believed the evidence supports that the applicant was not guilty of negligence and that he acted as a reasonably prudent person would have acted under similar circumstances.

10.  On 13 February 2008, the applicant was notified that his appeal of FLIPL 
# 31-XX had been denied by the appeal authority (a major general (MG)).

11.  On 26 February 2008, the applicant's attorney requested an oral hearing to review the determination of the financial liability determined in the memorandum dated 13 February 2008, which denied the applicant's request for reconsideration of financial liability without any explanation or rationale.  The attorney again opined that due to legal errors and deficiencies the assessment of liability should be disapproved because he believed the evidence supports that the applicant was not guilty of any negligence and in fact acted as a reasonably prudent person would have acted under similar circumstances.  

12.  On 3 June 2008, the applicant was informed that a Summary Record and Hearing Decision determined that he had received due process rights in accordance with Army Regulation 735-5.  It was further determined that the financial liability assessed against him in the amount of $1,000.00 was valid and collection by salary offset under 5 U.S.C. 5514, not to exceed 15% of disposable pay, was proper.

13.  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 that he be assessed the $1,000.00 for the lost equipment on the FLIPL as indicated.  The G-4 advisory opinion further opined the applicant failed to ensure that U.S. Government property entrusted to him by the U.S. Army Dugway Proving Ground was properly used and cared for, that proper custody was provided, or that he provided proper safekeeping, and disposition.  

14.  The G-4 advisory opinion further stated that the applicant had failed in his supervisory capacity and his direct responsibility and thereby was negligent in property accountability in accordance with Army Regulation 710-2 and Army Regulation 735-5.  

15.  On 28 September 2009, in response to the advisory opinion the applicant's attorney submitted a rebuttal in his behalf.  He stated that the G-4 opinion that "the financial liability assessed to the applicant be upheld," was legally unsubstantiated and woefully inadequate, and that the advisory opinion be completely rejected because it failed to address the multitude of the specific and significant legal issues raised in the 26 February memorandum.  He also stated that the Director of Supply was merely mimicking summary conclusions made by previous authorities.  More importantly, he failed to provide a thorough legal analysis of the DD Form 149 and the supporting attachments to the package.  He further stated that due to the legal errors and legal deficiencies he requests that the advisory opinion be rejected.  He opined that the evidence supports that the applicant is not guilty of any negligence based on the fact that he acted as a reasonably prudent person would have under similar circumstances. 

16.  Army Regulation 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.  

17.  Army Regulation 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.  


18.  Paragraph 13-29 of the same regulation 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 #31-XX should be overturned and that he should be reimbursed the $1,000.00 financial liability assessed against him due to the four requisite elements of loss, responsibility, culpability, and proximate cause not having been substantiated was carefully considered and found to have merit.  

2.  By regulation, in order to assess financial liability, there must be evidence proving the member was negligent and was the proximate cause of the properly loss.  The Command Judge Advocate determined the investigation findings and recommendations were legally sufficient, and there was no evidence to show the applicant failed to perform his required duty.  Therefore, it was impossible to determine the culpable party because the turn-in papers were lost, and as a result it was impossible to determine liability.

3.  There is no evidence indicating that anyone in the FLIPL investigative chain ever fairly evaluated, addressed, and/or responded to the issues raised by the applicant and his attorney in the various rebuttals in this case regarding the lack of evidence showing negligence and proximate cause.  Given this failure to address his rebuttal combined with the comments of the Command Judge Advocate that it was impossible to determine liability in the case, it appears the investigation and evidence submitted do not establish the applicant's negligence or that he was the proximate cause of the property loss, which are required by regulation.  Therefore, notwithstanding the recommendation contained in the G-4 advisory opinion, it would be appropriate to correct the record to show the applicant was not found liable for the equipment loss, and to reimburse him any monies already collected as result of the financial liability finding.  

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 $1,000.00, as indicated in the FLIPL in question.

2.  That the Defense Finance and Accounting Service reimburse him all monies already collected as a result of the corrected FLIPL finding. 



      _______ _   _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)                                         AR20090004908



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ABCMR Record of Proceedings (cont)                                         AR20090004908



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