IN THE CASE OF:	  

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090008480 


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 of $2255.25 for property loss and that all money collected on this liability be returned.

2.  The applicant states, in effect, the investigating officer (IO) found he was neither proximate nor negligent for the loss of government property and these two items must be proven for an individual to be found liable according the governing Army regulations.  He claims the IO stated he was not enforcing command supply discipline; however, the IO conducted no detailed investigation to support his allegations and thus made the recommendation without substance.

3.  The applicant provides electronic mail messages, dated between 20 and 27 January 2009; a self-authored letter; and a DD Form 200 (Financial Liability Investigation of Property Loss) documenting the financial liability investigation of property loss (FLIPL) 08-4-9IN-40 with accompanying documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving on active duty in the rank of captain at Fort Belvoir, Virginia, as of the date of the application.

2.  On 11 May 2008, the FLIPL IO concluded that the only viable explanation for the loss of the items in question was poor accountability of property and that command supply discipline was the responsibility to be enforced by the commander.

3.  The FLIPL IO further stated that the lack of accountability was the proximate cause for the loss of the items in question.  He recommended that the applicant, as the company commander, and his supply sergeant be found liable for the loss of the items in question.  He further indicated that the applicant was responsible for command supply discipline and his simple negligence and failure to enforce it upon subordinates greatly contributed to the loss; the supply sergeant failed to properly manage his commander's hand receipts.  He finally recommended a total financial liability in the amount of $2255.25 for the lost property, of which the applicant would be liable for $1533.57 and the supply sergeant liable for $727.68.

4.  On 17 May 2008, the battalion commander (appointing authority) formally disapproved the financial liability findings based on his conclusion that the proximate cause for the loss of the items in question is simple negligence on the part of the applicant as the company commander and he alone should be held financially liable for the full amount of $2255.25.

5.  On 27 June 2008, the applicant rebutted the findings by indicating that his subordinates did not follow established procedures to maintain proper accountability and the fact that he did create hand-receipts confirmed by a subordinate negates the basis that he was the sole responsible party for the property loss because it shows he did create sub-hand receipts, but they were not properly tracked.  He stated that he accepted responsibility for the loss of the equipment because he was the commander, but he believed he was neither negligent nor the proximate cause for the loss, but that both his supply sergeant and unit armorer did not properly follow established company procedures and maintain accountability of paperwork which ultimately led to the loss of property.

6.  Two legal reviews completed on 27 August 2008 and 4 December 2008 found the FLIPL completed on the applicant was procedurally incorrect and legally insufficient.

7.  On 9 January 2009, the brigade judge advocate found the FLIPL completed on the applicant was legally sufficient, that the evidence supported the findings, and the findings supported the recommendation.

8.  On 3 March 2009, the approving authority approved the recommendation of the financial liability IO that the applicant was liable in the amount of $2255.25.  The approving authority commented that after reviewing the evidence he found the applicant was negligent and, therefore, liable.

9.  In connection with the processing of this case, an advisory opinion was obtained from the Department of the Army Office of the Deputy Chief of Staff, 
G-4, Director of Supply.  The advisory opinion contains a recommendation that the financial liability assessed against the applicant be upheld and he be assessed the $2,255.25 for the lost equipment on the FLIPL as indicated.  He states that the applicant failed to ensure his unit had an effective and functioning command supply discipline program and was negligent in holding his subordinates accountable.  He further states that the applicant had command responsibility to ensure his subordinates properly accounted for property through the use of procedures prescribed in the governing regulation.  The company commander is charged with the responsibility to establish and uphold proper command supply discipline, which the applicant failed to do by not ensuring that his property was properly accounted for, sub-hand receipted, and inventoried.

10.  On 18 September 2009, the applicant was provided a copy of the G-4 advisory opinion in order to have the opportunity to respond and/or rebut its contents.  To date, he has failed to reply.

11.  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 commanders' 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.

12.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes the basic policies and procedures for 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.

13.  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 and attached exhibits that negligence or willful misconduct was the proximate cause of the property loss, he or she may assess financial liability.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FLIPL findings were without substance was carefully considered and found to have merit.

2.  The evidence of record confirms the investigation process, including legal reviews, was properly accomplished in accordance with the applicable regulation and that the proper approving authority ultimately found the applicant was negligent and, therefore, liable for the property loss in his unit.  It is noted that none of the legal reviews addressed the issue of proximate cause for the loss of equipment.  Even if the applicant’s failure to provide stricter oversight was negligent, it was not the proximate cause of the loss of accountability or the loss of property covered by the FLIPL.  The applicant gave responsibility for monitoring the property in the arms room to subordinate personnel.  They, not the applicant, ultimately failed to maintain or lost the hand receipts and other documents tracking the property.  The applicant’s acts or omissions, were not the cause that in a natural and continuous sequence unbroken by a new cause produced the loss.

3.  In a rebuttal submitted by the applicant, he also claimed his subordinates were responsible for the lost equipment because they failed to follow established procedures to maintain proper accountability by failing to properly track hand-receipts they had created on the lost equipment.

4.  As a result, it does not appear the investigation produced sufficient evidence to prove the applicant, and not his subordinates, were the “proximate” cause of the equipment loss which is required in order to assess financial liability.  Therefore, contrary to the recommendation contained in the G-4 advisory opinion, it appears it would be appropriate to grant the requested relief in the interest of equity and justice.







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 $2,255.25, as indicated in the FLIPL in question.

2.  The Board further recommends that the Defense Finance and Accounting Service reimburse the applicant any of the $2,255.25 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)                                         AR20090008480



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ABCMR Record of Proceedings (cont)                                         AR20090008480



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