IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010 

		DOCKET NUMBER:  AR20090013162 


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 the conclusion of the Financial Liability Investigation of Property Loss (FLIPL) (AC-02-xx) that was conducted by the 157th Infantry Brigade, First Army, and garnished one month's salary ($5,516.70), be found not supported by the evidence and restoration of his entitlement to the garnished pay.

2.  The applicant states that the 157th Infantry Brigade did not have the standing to conduct the FLIPL and garnish his pay; the Brigade failed to show his actions were the proximate cause of the vehicle accident that gave rise to the FLIPL; the Brigade did not assign individual responsibility and held him and three other Soldiers collectively liable for the price of a new vehicle when in fact the vehicle was 13 years old; the Brigade treated all four Soldiers as one Soldier, forcing them to act as one in defending themselves rather than individually and thus unable to effectively defend themselves on an individual basis and also forcing them to possibly commit perjury after the Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation by his own chain of command, creating an irresolvable conflict of interest among the Soldiers; the Brigade did not give him or the other Soldiers sufficient time to properly defend themselves; he did not have access to witnesses and evidence to prepare in defense of himself due to deployment and movement within theater; the Brigade did not make evidence available for inspection before disposing of it; the Brigade did not make all evidence available for inspection before finalizing the investigation; the Brigade failed to send notices to him in a timely manner despite several requests to the contrary; and the Brigade did not follow the procedure for computing the value of the damages in accordance with Army Regulation 735-5 (Policies and Procedures for Property Accountability). 

3.  The applicant submits a copy of the completed FLIPL, which includes photographs, sworn statements, the investigating officer's (IO’s) findings and recommendations, military police report, IO appointment memorandum, decision memorandum, appeal memorandum, recommendations by the chain of command, and all other allied documents related of the FLIPL.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's financial liability resulting from FLIPL Number AC-02-xx, conducted by the 157th Infantry Brigade, First Army-Division East.

2.  Counsel states he acted as legal assistance attorney to the applicant (and three other Soldiers) in connection with the FLIPL appeal and he is familiar with the enclosures referenced herein.  He also states:

	a.  The Soldiers and he are members of the New York Army National Guard (NYARNG).  They were deployed to Afghanistan as members of the 27th Infantry Brigade Combat Team (BCT), NYARNG, from March 2008 through January 2009.  The FLIPL relates to a vehicle accident that took place during the post-mobilization, pre-deployment training at the simulated Forward Operating Base (FOB) Patriot located at Fort Bragg, NC.  In August 2008, in accordance with Army Regulation 735-5, the Soldiers submitted an appeal for reconsideration to the approving authority (Commander, 157th Infantry Brigade) which was forwarded to the appeal authority (Commander, First Army-Division East).  Both authorities denied the appeal.

	b.  The factual background and the issues raised by the Soldiers through August 2008 are described in the appeal.  Subsequent to the submission of the appeal, he (counsel) reached out to the 157th Infantry Brigade via email but did not receive an affirmative response regarding the status of their review despite numerous attempts.  After returning from Afghanistan, he reached out to the Staff Judge Advocate (SJA), First Army-Division East in March 2009, and learned the outcome of the appeal. 

	c.  The Soldiers request the Board hold that the FLIPL was not properly prepared based on procedural and substantive inadequacies under Army Regulation 735-5.  Among them, the 157th Infantry Brigade had no legal standing to conduct the FLIPL; the FLIPL IO failed to show that each Soldier’s actions were the "proximate cause" for the vehicle accident; the IO applied a "simple negligence" standard; the IO applied the incorrect standard of a "group liability" which does not exist under Army Regulation 735-5; the FLIPL should have identified each Soldier’s individual liability, as mitigated by the actions of any other person; the IO investigated the Soldiers as a group as if they were one person, forcing them to act as one, rather than individually, in defending themselves, also forcing them to commit possible perjury after the Army Regulation 15-6 investigation by the Soldiers’ own chain of command, creating an irrevocable conflict of interest amongst the Soldiers; the Soldiers did not have the time to properly prepare defenses and did not have access to information and witnesses due to the 157th Infantry Brigade’s delays in the FLIPL, training, isolated locations, and deployment and movements within the theater; and the 157th Infantry Brigade did not make evidence available to the Soldiers before disposing of the evidence and finalizing the investigation.

	d.  Even if any Soldier was properly held liable for the damages to the High Mobility Multipurpose Wheeled Vehicle (HMMWV) under Army Regulation 735-5, the proper standard for computing any liability is the market price the vehicle would have fetched without the damages and not the depreciated value which the IO used.  Applying the correct standard, the 157the Infantry Brigade should have determined that the vehicle was of significantly less value than what it charged the Soldiers.  Even if the FLIPL was properly affected, the Board should hold that the outcome of the FLIPL was inappropriate as a matter of justice and that the garnished pay be returned to the Soldiers.

	e.  The failures and delays by the 157th Infantry Brigade to properly comply with notice and mailing requirements under Army Regulation 735-5, while they imposed the same on the Soldiers, led to unfair results.  The Brigade failed to send notices to the Soldiers in a timely manner before finalizing the FLIPL despite several requests to the contrary.  The Brigade sent him (counsel) some crucial information considered in the FLIPL (in particular the vehicle damage assessment) only after he requested the complete package after the FLIPL was finalized.  The Brigade did not complete the review of the appeal until after December 2008, causing delay in review by the First Army-Division East.  The Brigade did not communicate the outcome of the appeal to the Soldiers.  These delays resulted in the Soldiers’ and the Soldiers’ chain of command’s inability to consider equitable measures including the cancellation or remission of the Soldiers’ liabilities under the FLIPL.  In addition, this unfair process sowed or reinforced doubts in the minds of many Soldiers in the 27th BCT (particularly, during their service in Afghanistan) regarding the fairness of the FLIPL process and credibility of the Army.

3.  Counsel also provides the same documents provided by the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as an infantry second lieutenant in the NYARNG on 1 July 2001.  He was promoted to the rank/grade of captain (CPT)/O-3.  He subsequently served on active duty in an Active Guard Reserve (AGR) status from November 2003 to January 2008 and he was honorably released from active duty to the control of his ARNG unit.  He was assigned to Troop A, 2nd Battalion, 101st Cavalry, as a company commander.  The 101st Cavalry is a subordinate unit of the 27th Infantry Brigade, 42nd Infantry Division, NYARNG. 

2.  On 17 January 2008, the applicant was ordered to active duty as a member of his ANG unit for a period of 400 days in support of Operation Enduring Freedom (OEF).  He was ordered to report to Fort Bragg on or about 20 January 2008.  His unit, the 2nd Battalion, 101st Cavalry, was assigned to the 27th Infantry Brigade, Kabul, Afghanistan, effective 30 March 2008.

3.  At approximately 0900 hours on 17 February 2008, a HMMWV was damaged when it slid off a tank trail and hit a tree at approximately 30 to 40 miles per hour (mph).  The weather conditions on that day were mild, clear, sunny, and dry; the road conditions were good.  The HMMWV belonged to the 157th Infantry Brigade.  The 157th Infantry Brigade is an Active Component/Reserve Component (AC/RC) unit based at Fort Jackson, SC, and is responsible for training selected U.S. Army Reserve (USAR) and ARNG units in South Carolina and the Southeastern United States.  The brigade is a subordinate unit of First Army.  The accident involved Soldiers from the NYARNG's 27th BCT who were training at Fort Bragg for an upcoming deployment.  The vehicle was part of a nine-vehicle convoy, led by a lieutenant (convoy commander), travelling from a range to a mock FOB to transport remaining Soldiers for gunnery training at the range.  The accident involved the fourth vehicle in the convoy which was driven by a private first class (PFC)/E-3 who did not have a civilian driver's license.  His military driver's license was approved by his company commander (the applicant), and was based on a failed written test and did not involve a road test or a significant amount of classroom training.  The truck commander was a licensed driver and sergeant (SGT)/E-5 who had previously attended the convoy safety briefing but who did not intervene.  The driver, the truck commander, the convoy commander, and the company commander were all held financially responsible for the damage to the HMMWV.

4.  According to the police report, on 17 February 2008, the PFC drove a HMMWV into a tree.  He was assigned to A Company, Security Force Battalion, 27th BCT.  The accident occurred near the intersection of Blues Road and Longstreet Road on Fort Bragg.  According to the report and based on the witness accounts of the vehicle's commander (the SGT), the accident occurred when the driver was driving to a range for a training exercise.  The report states that the driver was travelling approximately 30 to 40 mph when the HMMWV slid.  The driver compensated for the slide but drove off the right side of the roadway, skidded an unknown distance, and slid into a tree.  A passenger was treated for a sprained right wrist and numerous contusions.  The HMMWV was self-recovered.

5.  On 18 February 2008, an IO was appointed by the Chief of Staff, 27th BCT.  The IO completed his investigation on 21 February 2008.  He determined that the primary cause of the accident was excessive and unsafe speeds along the narrow, confined, and sloping curved tank trail.  Speeds of the convoy were uneven.  The lead vehicles and the rear vehicles were under an accordion effect. The convoy commander did not maintain a uniform pace for the convoy.  The absence of an assistant convoy commander hindered the convoy commander's ability to control the rate of speed for the convoy.  Contributing to the accident was also the driver's attempt to keep up with the vehicle ahead of him resulting in speeds too great for the tank trail and the curve where the accident happened.  A secondary cause for this accident was due to the driver's limited experience behind the wheel of the vehicle.  The driver had less than 300 miles of driving time and no civilian driver's license.  The IO recommended a series of corrective action related to drivers' training, safety briefings, and establishing control measures.

6.  On 12 March 2008, the 157th Infantry Brigade, Fort Jackson, appointed a FLIPL IO in accordance with chapter 13 of Army Regulation 735-5 to conduct a formal investigation into the loss of military property listed on a DD Form 200 (FLIPL).

7.  The IO stated that he examined all available evidence and exhibits and he personally investigated the same.  He determined that the accident was the result of simple negligence on the part of the driver, truck commander, convoy commander, and company commander as follows:

	a.  The driver admittedly failed to maintain a safe speed while driving on Blue Road to the range.  He negotiated a curve too fast, began to slide, and over corrected.  This resulted in the loss of control of the vehicle which then ran off the road and hit a tree.

	b.  The truck commander admittedly failed to direct the driver to slow the vehicle to a safe operating speed while negotiating the curve prior to the accident.

	c.  The convoy commander failed to require all personnel in the convoy to be present at the convoy briefing where speed limits and safe operating speeds were disseminated.  Personnel required to attend were only the truck commanders at the time.  Drivers were not formally briefed on safe operating speeds for vehicle movement on this convoy.

	d.  The company commander failed to ensure the driver was properly licensed.  In his training packet, the driver lacked the commander's interview, the required 40-hour block of instruction, and road test results per the applicable regulation.  He also failed to take the driver's experience into account on the risk assessment for this movement.  A route reconnaissance was not conducted by the unit prior to movement.

8.  These personnel were negligent in that they collectively failed to prevent the vehicle accident.  The amount of loss was $74,969.00, depreciated by 5 percent for each year of its 13 years of service (65 percent) for a depreciated value of $26,239.15.  Based on the collective involvement in events leading up to the accident, the IO recommended each individual be held financially liable to a specified amount.  In the applicant's case, the liability was determined to be $5,516.70.  The Commander, 157th Infantry Brigade approved the financial liability investigation on 27 March 2008.

9.  On 18 March 2008, by memorandum, each of the four Soldiers was notified that he was being recommended for charges of financial liability to the U.S. Government for the loss of the property.  Each was given 7 days (15 days if located outside continental United States) to submit a rebuttal statement or any additional evidence.  The applicant acknowledged receipt of this notification between 18 and  20 March 2008.  He subsequently submitted a memorandum on 20 March 2008, requesting a 7-day extension for submission of his rebuttal statement due to the inability to secure an adequate legal advisor and due to his upcoming deployment to Afghanistan on or about 29 May 2008.

10.  On 26 March 2008, an administrative law attorney at the Office of the SJA, XVIII Airborne Corps, Fort Bragg, reviewed the FLIPL in accordance with chapter 13 of Army Regulation 735-5 and found it legally sufficient.

11.  On 28 March 2008, the applicant submitted a rebuttal to the financial liability report.  He raised the same issues stated in this application.

12.  On 17 April 2008, the IO reviewed the rebuttal statement submitted by the applicant and found no further evidence or facts that would impact his final recommendation.

13.  On 16 August 2008, the applicant's counsel submitted a request for reconsideration of the assessment of financial liability under Army Regulation 735-5, paragraphs 13-42a(3) and 13-44.  He added that although it had been past the 30-day window for filing the request for reconsideration, as discussed below, good causes existed that justified the reconsideration, including "acts of war" as provided for in Army Regulation 735-5.  He provided a timeline of the events and also stated:

	a.  The Soldiers were, at the time, serving at various FOBs in Southern Afghanistan actively engaged in high-tempo combat and combat support operations against the enemy.  They did not have ready access to communications with the outside world.  It was impossible for them to effectively respond to or appeal the FLIPL.  The Soldiers authorized him (counsel), verbally and/or by letters, to act on their behalf with regard to FLIPL Number AC-02-xx.  Three letters from the Soldiers were enclosed.  It took one Soldier’s authorization 27 days to get from his location to Camp Phoenix where he (counsel) was located.

	b.	The FLIPL is riddled with numerous procedural and substantive errors and issues as discussed below.  He requested that the FILPL be cancelled or set aside and that the approving or appeal authority hold under Army Regulation 735-5 that on revisiting the accident, the Soldiers cannot be held liable for the damages or if they are held liable for damages, the damages should first be quantified properly in accordance with DA Pamphlet 735-5 (Financial Liability Officer's Guide).  The issues were:

		(1)  The 157th Infantry Brigade was not the proper unit to initiate the FLIPL.  Army Regulation 735-5, para13-7, provides that the initiator of a FLIPL will normally be the hand receipt holder or the accountable officer.  The 27th BCT was the hand receipt holder, not the 157th Infantry Brigade.  If anyone, the 27th BCT should have been the unit to initiate the FLIPL.

		(2)  The FLIPL did not comply with the mandatory FLIPL timelines and this severely affected the Soldiers’ right to rebut the facts.  Army Regulation 735-5, Figure 13-2 requires the initial process to be completed and the actual investigation be completed within 40 days.  The initial process, which started on 17 February 2008 when the 157th Infantry Brigade learned of the accident, did not end until 12 March 2008, when the IO was appointed.

			(a)  The FLIPL contains a copy of a memorandum, dated 12 March 2008, purportedly prepared by a Supply Technician, providing that this lateness was “due to necessary in-depth research surrounding the cause of the vehicle accident.”  However, there is not a single piece of evidence enclosed with the FLIPL that shows such in-depth research.

			(b)  The accident took place on 17 February 2008.  The delay between the accident and the FLIPL severely impacted the Soldiers’ ability to provide information to explain their conduct.  In addition, the notice was served without warning after a number of people in the 27th BCT who had knowledge of the accident had left for Afghanistan, and two days before their 4-day pass, which was followed by an all-day deployment ceremony exercise the day after the pass, and the actual ceremony day.  By then, most of the Soldiers’ and the unit’s equipment and records were packed and shipped to Afghanistan, and the Soldiers had very limited access to e-mail and other support.  Furthermore, they were not furnished copies of other people’s statements until the day before the pass.

			(c)  As mentioned below, some of the documents were not furnished to the Soldiers until after the FLIPL was completed and approved, and then only as part of the Liability Notice which did not reach several Soldiers.  They include the 
letter of lateness, an email from an officer forwarded through other officers which provides the IO's own assessment of the accident and the vehicle’s irreparable condition, and the Inspection Sheet.

			(d)  This timing and manner of the FLIPL and the notice effectively rendered the Soldiers unable to thoroughly review evidence and put on a meaningful and realistic rebuttal in a timely fashion.  The Soldiers discussed their options with the legal assistance office of the XVIII Airborne Corp at Fort Bragg, upon the receipt of the notice and they were informed that the legal assistance office could not assist them on this matter before the Soldiers deployed.  Similarly, given the Soldiers’ location on a simulated FOB outside the actual base of Fort Bragg without vehicular support also meant that they could not revisit the scene of the accident or check the vehicle involved in the accident.  The IO did not offer an opportunity to inspect the vehicle or the accident site.

			(e)  Under these circumstances, a remedy in "laches" (in law and in equity) applies to prevent the 157th Infantry Brigade from finding the Soldiers liable for an accident they could not adequately defend themselves from.

		(3)  The reviews and approvals were improper given that they were performed without the required Soldiers’ input and several other key pieces of information which were added to the FLIPL after the completion of review.  Legal review, approval authority review, and approval were all obtained before the Soldiers submitted their rebuttals to the IO and before the IO’s own suspense date given for submitting the rebuttals.
			(a)  There is no evidence that either the legal review or the approving authority was aware of the IO’s notice with the suspense date of 1 April 2008, that the Soldiers were preparing rebuttals, or that they were provided the rebuttals and the auto mechanic’s assessment when they became available subsequent to their reviews.  Thus, their reviews were based on incomplete information.

			(b)  The FLIPL did not include estimated damages as required at the time of the review.  Army Regulation 735-5 requires the FLIPL to be accompanied by an estimate of damage prepared by a Government technician.  However, there is no discussion in the report or attachments submitted with the FLIPL that discuss the condition of the vehicle and its disposition.  The Inspection Sheet was attached to the FLIPL after the FLIPL was approved.

		(4)  The Liability Notice was mailed in a manner that caused the Soldiers to lose an opportunity to timely file a request for reconsideration, appeal, or 
remission.  Army Regulation 735-5 requires the approving authority to provide a 30-day notice of proposed assessment to the Soldiers.  Here, the Soldiers specifically requested in their rebuttals that any such notice be provided to him (counsel) on behalf of the Soldiers due to the fact that the Soldiers would be sent to downrange locations for combat and combat support operations, making it extremely difficult to receive or send mail.

			(a)  As the IO did not provide the rebuttals to the approving authority, the notices were sent directly downrange, taking approximately 30 days to reach one Soldier and not reaching the other three Soldiers at all.  This delay and the failure to deliver the notices as the Soldiers requested effectively prevented the Soldiers from submitting additional information in rebuttal in a timely manner, to timely request reconsideration or to appeal it, or to request the remission of the liability in accordance with Army Regulation 600-4 (Remission or Cancellation of Indebtedness), as they found out about the liability on or after the garnishment was made.

			(b)  The IO’s failure to provide the rebuttals to the appointing and approving authorities also resulted in the FLIPL not being forwarded to the appellate authority for appeal, as required by Army Regulation 735-5, paragraph 13-51, and as requested by the Soldiers’ rebuttals.

		(5)  The IO collected sworn statements from the Soldiers without advising them of their rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ).  Army Regulation 735-5, paragraph 3-10a(3)(1) provides that where the IO suspects application of the UCMJ, he/she should consult SJA regarding the rights warnings under Article 31(b) of the UCMJ.  The IO from the 27th BCT's Army Regulation 15-6 investigation advised the Soldiers of such rights and the Soldiers had relied on those rights in providing statements to the IO.  The IO of this FLIPL, by not reminding the Soldiers of their rights, induced the Soldiers to provide statements which could be inconsistent with their statements for the Army Regulation 15-6 investigation, putting them in possible jeopardy under law. Therefore, the statements cannot be used for the purposes of this FLIPL.

	c.  The issues with substance of the FLIPL are as follows:

		(1)  The FLIPL assigns financial liability to the four Soldiers as a group.  Each Soldier’s financial liability must be determined on an individual basis and not on a group basis.  Each person must be assigned the liability based on the respective contribution to the damage.


		(2)  The FLIPL fails to allege or establish several legal elements required to establish each Soldier’s individual liability for the damages.  Army Regulation 735-5, paragraph 13-29, requires that, before any person is held financially liable under a FLIPL, (i) the facts show that the person was negligent or committed willful misconduct; (ii) the facts show that the person, through negligence or willful misconduct, violated a particular duty involving the property and (iii) the facts "clearly show" that the person’s conduct was the "proximate cause" of the damages to the HMMWV.

			(a)  The FLIPL provides that the Soldiers committed "simple negligence."  "Simple negligence" is the absence of duty of care, by an act or omission of a person which lacks that degree of care for the property that a reasonably prudent person would have taken under similar circumstances, to avoid damages to Government property, as shown in paragraph 13-29b(2).  Whether a Soldier’s acts or omissions constitute negligence depends on the circumstances of each case.

			(b)  Acts considered negligent under some circumstances may not reflect negligence under other circumstances.  Therefore, Army Regulation
735-5, paragraph 13-29b(4) provides that a number of factors must be fully considered when determining negligence:  the person’s age, experience, physical condition, and special qualifications; the type of responsibility the person had toward the property; the type and nature of the property; the nature, complexity, level of danger, or urgency of the activity ongoing at the time of damages; the adequacy of supervisory measures or guidance for property control; the feasibility of maintaining close supervision over the property, given the nature and complexity of the organization or activity supervised; and the extent supervision could influence the situation considering pressing duties or lack of a qualified assistant.

			(c)  Paragraph 8-3 of DA Pamphlet 735-5 provides special consideration for vehicular accidents.  The type of the road, the weather and visibility, the speed and whether the person obeyed the posted traffic signals and traffic laws, among others, should be considered.  Also, the investigation of a vehicular accident should involve the physical examination of the damaged vehicle as provided in paragraph 3-1b of the DA Pamphlet.

			(d)  Under this standard, the mere fact that an individual is involved in an accident does not make that individual negligent.  However, here, no indication is given that any consideration of special facts was made.  Under the standards described above, each Soldier’s actions on their own did not constitute simple negligence.

			(e)  Furthermore, the proximate cause requirement was not met here.  The proximate cause requires that an individual’s acts or omissions were the cause that, in the natural and continuous sequence, unbroken by a new cause, produced the damages, and without which the damages would not have occurred.  The mere fact that an individual gets into an accident does not give rise to liability if there were other contributing or intervening factors.  Each Soldier’s action, on his own, did not constitute a proximate cause for the accident.

		(3)  The IO did not offer any evidence of his independent examination of the vehicle or scene of accident.  Both Army Regulation 735-5 and DA Pamphlet 735-5 require consideration of all relevant facts, besides the statements of charged individuals.

			(a)  The evidence included in the FLIPL consisted of one statement from each Soldier and the Army Regulation 15-6 investigation report.  Army Regulation 735-5, paragraph 13-31, requires consideration of all relevant facts including, for example, the physical examination of the vehicle and the damage to the vehicle, maintenance data and accident history of the vehicle, the road (including the road condition at the time of the accident and accident reports for other accidents that took place at the site of this vehicular accident – indicating whether this is an area prone to accidents), local weather, pictures, estimate of damages, and interview of any persons on the convoy than the driver and truck commander of the vehicle involved in the accident.

			(b)  The lack of examination of all relevant facts renders the conclusion of the FLIPL a mere conclusory statement which the Soldiers cannot adequately defend against because they cannot point to specific facts that rebut the conclusion.  It is impossible for the Soldiers to precisely determine the nature of the damage to the vehicle, to show any mitigating circumstances, to show negligence of people other than him, or to contest the amount of liability which is, as discussed below, based on the damage to the vehicle.

			(c)  The inability to show others' liability (including that of an Army unit) is particularly damaging to the rebuttal.  This can be material and significant because the accident took place in North Carolina where the law prohibits recovery of damages if the claimant contributes (to any degree) to the damage.  According to the FLIPL, the vehicle was 13 year old and based on anecdotal stories from other Soldiers who drove vehicles provided by the 157th Infantry Brigade regarding the condition of their vehicles, a careful review of the vehicle records could have uncovered issues contributing to the accident.

		(4)  The FLIPL does not address and reconcile conflicts between the witnesses and/or self-serving affidavits as required by Army Regulation 735-5.  The lack of such reconciliation puts into doubt the accuracy of the FLIPL’s assignment of liability on each person accused.  For example, there are conflicting statements regarding how the accident vehicle went out on the first trip and joined the returning convoy.  Because convoy safety briefings were different for each convoy, each Soldier has a stake to tell a different version of the events. However, the IO failed to reconcile the differences in the statements.

	d.  Issues with Financial Liability Computation are as follows:

		(1)  The amount of liability was not commensurate with each Soldier’s culpability.  As discussed above, a Soldier is liable for damages to the HMMWV only if the facts show all the elements that tie the Soldier’s liability.  Only then, and only after considering all negligence on the part of others and mitigating circumstances, can the liability amount be determined.  Here, four Soldiers were garnished one month of basic pay each, without elaboration on how the liability amount was commensurate with their respective culpabilities, and whether any mitigating circumstance or collective negligence was considered.  Any assignment of liability amount without such elaboration amounts to a punitive action or penalty specifically prohibited by Army Regulation 735-5, paragraph
12-1a.  As the IO was aware of at the time of the investigation, the 27th BCT already undertook exhaustive investigations into this accident and concluded that no punitive action was warranted against any Soldier.

		(2)  The FLIPL uses an incorrect method for computing financial liability.  The FLIPL indicates that the estimated cost of damage resulting from the accident was the purchase cost of the vehicle less depreciation for the 13 years of use.  However, that is an incorrect application of rules as set forth in Army Regulation 735-5 and DA Pamphlet 735-5.

			(a)  Army Regulation 735-5, Appendix B, and DA Pamphlet 735-5, paragraph 5-1, provide that if the property cannot be repaired or is lost, and when a technician is available for inspection, then it is the fair market value of the destroyed or lost property.  The fair market value of un-repairable property is determined by the IO based on the condition of the property at the time of the accident, and by looking at the commercial market value for similar items in similar conditions that have been sold in the past six months, as shown in paragraph 5-1b.

			(b)  In determining the fair market value, the salvage credit for serviceable parts and scrap metal must be given in determining the net amount of such fair market value as provided in paragraph 5-2 of DA Pamphlet 735-5.   In this case, the damaged HMMWV was sent to an auto technician and an inspection was performed and it was concluded beyond repair.  Thus, the value used for the financial liability should have been the fair market value of the HMMWV at the time of the accident less salvage value, which would have resulted in a substantially lower amount of financial liability for the Soldiers as a group.  Clearly, an old, worn 13-year old HMMWV is not worth over $26,000.

14.  On 28 December 2008, by memorandum, the Commander, 157th Infantry Brigade, Fort Jackson, stated that he personally reviewed the request for reconsideration in conjunction with the investigation of property loss and determined that the assessment of financial liability was appropriate based on the following:

	a.  There was no new evidence submitted with the request for reconsideration.  Previous findings and recommendations were found to be legally sufficient based on the Army Regulation 15-6 investigation and the FLIPL.

	b.  A second legal review was conducted by the Fort Jackson JAG office due to the late receipt of the request for reconsideration.  Again, the JAG office returned the packet as being legally sufficient on 17 December 2008.

	c.  The review legally supported the conclusion of both investigations that the Soldiers did not sufficiently refute the proposition that their individual actions collectively contributed to the proximate cause of the accident resulting in the loss of the vehicle in question.  Each was assessed one month's base pay totaling $14,242.20 and that assessment was based on actual cost.

15.  On an unknown date in late 2008 or early 2009, the Commanding General, First Army-Division East also reviewed the request for reconsideration and appeal of the financial liability.  He concurred with the approving authority and sustained the recommendations of the IO.

16.  On 23 September 2009, an advisory opinion was obtained from the National Guard Bureau (NGB), Personnel Division, in consultation with the NGB Judge Advocate memorandum, dated 18 August 2009.  That office recommended approval of the applicant's request in so much as the Board considers relieving the applicant of his financial liability after examining the reasonableness of his actions and the mitigating factors related to the pre-deployment training occurring at the time of the incident.  That office stated:

	a.  The applicant assumed command of A Troop, 2nd Battalion 101st Cavalry in February 2006.  He reported with his unit to the mobilization station at Fort Bragg on 20 January 2008 to begin pre-deployment training.  The accident occurred on 17 February 2008 and on 12 March 2008 the IO was appointed and initiated the FLIPL.  The approving authority approved the FLIPL on 27 March 2008.  The unit was on a scheduled 4-day pass from 21 through 25 March 2008 and on 30 March 2008 the unit deployed to Afghanistan.

	b.  The vehicle was part of a nine vehicle convoy transporting Soldiers from a mock FOB to a gunnery range for training.  Prior to the start of the convoy, a briefing was given to truck commanders by the convoy commander and maximum speeds were briefed as being the posted limit or 25 mph on dirt roads as per the commander's instructions.  The convoy had made one trip to the range earlier and was on the second rotation when the accident occurred.  The accident vehicle joined the convoy at the range unbeknownst to the convoy commander and had returned to the FOB with the convoy.  The vehicle was fourth in the convoy on the return leg to the gunnery range.  The HMMWV slid out of control on a curve and struck a tree, resulting in extensive damage to the vehicle.  The HMMWV was self-recovered after the incident and determined to be a total loss at a value of $74,969.00, depreciated to $26,239.15.  The passenger in the vehicle suffered a sprained wrist and multiple contusions.

	c.  On 12 March 2008, the Executive Officer of the 157th Infantry Brigade appointed an officer of the 157th Infantry Brigade to be the FLIPL IO.  On 17 March 2008, the IO took the Soldiers’ sworn statements.  The IO submitted his FLIPL report on 19 March 2008.  The Soldiers were given until 1 April 2008 to submit a rebuttal statement.  In his report, the IO stated "it is my belief that the accident resulting in the loss of a HMMWV was the result of simple negligence on the parts of the driver, truck commander, convoy commander, and the company commander."  The IO concluded "these personnel were negligent in that they collectively failed to prevent the vehicle accident."

	d.  In particular, the IO stated that he made this determination based on the following actions of the Soldiers in the investigation. "The vehicle operator admittedly failed to maintain a safe speed while driving on Blues Road to Range 75.  He negotiated a curve too fast, began to slide and over corrected.  This resulted in loss of control of the vehicle which then ran off the road and hit a tree."  "The truck commander admittedly failed to direct the driver to slow the vehicle to a safe operating speed while negotiating the curve prior to the accident."  "The convoy commander failed to require all personnel in the convoy to be present at the convoy briefing where speed limits and safe operating 
speeds were disseminated.  Personnel required to attend were only vehicle truck commanders at that time.  As a result, drivers were not formally briefed on safe operating speeds for vehicle movement on this convoy."  And "the company commander failed to ensure that the driver was licensed properly.  In this training packet, the driver lacks a commander’s interview, the required 40-hour block of instruction and road test results as per Army Regulation 600-55 (The Army Driver and Operator Standardization Program (Selection, Training, Testing, and Licensing)).

	e.  The applicant, as a company commander, assumes the command responsibility for all government property within his command as defined by Army Regulation 735-5.  The regulation states, "the obligation of a commander to ensure 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."

	f.  According to Army Regulation 735-5, chapter 13, paragraph 29a(4), states, "whether a person’s acts or omissions constitute negligence depends on the circumstances of each case.  Negligence under some circumstances may not reflect negligence under other circumstances.  Therefore, fully consider the following factors, as a minimum, when determining the reasonableness of a person’s conduct."  Further, the regulation identifies "the nature, complexity, level of danger, or urgency of the activity ongoing at the time of the loss, damage, or destruction (LDD) of the property," "the feasibility of maintaining close supervision over the property, given the nature and complexity of the organization or activity supervised," and "the extent supervision could influence the situation considering pressing duties or lack of qualified assistants" as factors to use in determining the reasonableness of the applicant’s conduct.

	g.  The applicant approved the military driver’s license for the HMMWV driver when in fact the driver was not qualified.  The applicant was depending on the unit motor sergeant to provide him with accurate and complete documents indicating the Soldier was qualified and trained to operate the vehicle.  The unit operations officer would have normally reviewed the license documents; however, he was forward deployed to Afghanistan and unavailable to assist the commander.

	h.  On 20 March 2008, the applicant requested an extension to the 1 April 2008 rebuttal submission deadline.  The applicant contacted the post legal assistance office and he was informed they would not be able to provide legal assistance before the impending deployment.  The applicant was denied an extension to the rebuttal period, which due to the impending deployment effectively denied him access to legal assistance in preparing his rebuttal.

	i.  The applicant was assigned a difficult task to transition his Soldiers from civilian life, integrate his unit into another organization, and prepare them to go to war.  The evidence of record indicates the applicant was commanding the unit without key staff and operating on a compressed, demanding deployment schedule.  He took all the steps that a reasonable officer would have done in his position, but ultimately the responsibility for the LDD is his as the responsible commander.  However, the factors outlined in Army Regulation 735-5 should be used to determine if there is negligence rising to the level that would require personal financial liability for the loss of the vehicle.  The evidence indicates that once the FLIPL process was initiated, it was expedited due to the impending deployment of the applicant’s unit at the expense of procedural integrity.  The evidence indicates the mitigating factors may not have been properly weighed in the decision to find the applicant financially liable for the vehicle.

17.  On 30 September 2009, the applicant was provided with a copy of this advisory opinion.  He submitted the following emailed comments through his counsel on 13 October 2009:

	a.  All four FLIPL appeals arise from the same vehicular accident that took place at Fort Bragg in February 2009 and the NGB has made favorable recommendations in all four cases.  He (counsel) has acted as their legal assistance lawyer in connection with the appeals.  The four Soldiers are copied on this request and he (counsel) is writing on their behalf.  He requested the Board to adopt the NGB's recommendation in full and decide to restore each Soldier's pay in full with the combat exclusion for income tax.

	b.  The Soldiers' pay was garnished during a combat tour and they learned of it only after their families notified them after the fact.  This created a financial hardship for the families who were already struggling to cope with the stresses of having their loved ones in harm's way and, in some cases, learning to be single parents.  The garnishment also created the impression that the Soldiers did something seriously wrong in the service of our country to deserve severe punishments, which the Soldiers could not explain to their families because their procedural rights were not adequately protected.

	c.  The way the FLIPL was handled reinforced the perception of a lack of procedural fairness within the Army and acted to the significant detriment to the
morale of the unit during its deployment.  He appeals to this Board that everyone has to show that the Army cares about its Soldiers and is interested in protecting the procedural fairness of any investigation, as the NGB opinions have noted in their conclusions.

18.  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 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.  Army Regulation 735-5 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.  Army Regulation 735-5 defines the following terms:

	a.  Negligence – The failure to act as a reasonably prudent person would have acted under similar circumstances.  An act or omission that a reasonably prudent person would not have committed, or omitted, under similar circumstances and which is the proximate cause of the loss of, damage to, or destruction of Government property.  Failure to comply with existing laws, regulations, and/or procedures may be considered as evidence of negligence.

	b.  Proximate Cause – The cause, which in a natural and continuous sequence of events unbroken by a new cause, produced the loss or damage.  Without this cause, the loss or damage would not have occurred.  It is further defined as the primary moving cause, or the predominant cause, from which the loss or damage followed as a natural, direct, and immediate consequence.

21.  Chapter 13 of Army Regulation 735-5 states that the purpose of a financial liability investigation of property loss documents the circumstances concerning the LDD of Government property and serves as, or supports, a voucher for adjusting the property from accountable records.  It also documents a charge of financial liability assessed against an individual or entity, or provides for the relief from financial liability.  Chapter 13 also states:

	a.  Financial liability investigations of property loss are initiated and processed within a specific number of days, following the discovery of the LDD of U.S. Government property.  When delayed beyond the below listed processing times, the person responsible for the delay will prepare a written statement explaining the reason for the delay and attach it to the financial liability investigation of property loss as an exhibit.  Total processing time equals the difference in days between the date of discovering the discrepancy, block 3, DD Form 200, and the date the financial liability investigation of property loss is approved.  The time used to notify the individual of the financial liability officer’s recommendation and the approving authority’s decision to hold the respondent financially liable per paragraphs 13–34 and 13–42 are not included.  Subtract one date from the other, less the time used to notify the individual, to determine the total processing time.  For the Active Army, under normal circumstances, do not exceed 75 calendar days total processing time.  Commanders may adjust the time segments downward at their discretion.  For USAR, under normal circumstances, do not exceed 240 calendar days total processing time. Commanders may adjust the time segments shown in these downward at their discretion.  For ARNG, under normal circumstances, do not exceed 150 calendar days total processing time.  Commanders may adjust the time segments downward at their discretion.

	b.  The initiator of a FLIPL will normally be the hand receipt holder or the accountable officer.  When the hand receipt holder or the accountable officer is not available, the person with the most knowledge of the incident will serve as the initiator.  The USAR will initiate and present financial liability investigations of property loss to the appointing authority or approving authority as appropriate not later than 75 calendar days after the date of discovering the discrepancy.  The ARNG will initiate and present the FLIPL to the appointing authority or approving authority as appropriate not later than 45 calendar days after the date of discovering the discrepancy.

	c.  The approving authority is defined as an Army officer or DA civilian employee authorized to appoint a financial liability officer and to approve FLIPLs. For Army garrisons, garrison commanders will be the approving authority for FLIPLs arising within their command or under their supervision.

	d.  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 seeks relief from financial liability imposed against him by FLIPL Number AC-02-xx.

2.  On 17 February 2008, a HMMWV was damaged in a single vehicle accident.  The vehicle was part of a nine-vehicle convoy transporting Soldiers from a mock FOB to a range for training.  Prior to the start of the convoy, a briefing was given to truck commanders by the convoy commander and maximum speeds were briefed as being the posted limit or 25 mph on dirt roads as per the commander's instructions.  The HMMWV slid out of control on a curve and struck a tree, resulting in extensive damage to the vehicle.  The HMMWV was self-recovered after the incident and determined to be a total loss at a value of $74,969.00; depreciated to $26,239.15.

3.  Army Regulation 735-5 states that in order to assess liability, the approving authority must find the person to be held liable had a duty/responsibility to take care of the property, the person failed to carry-out that duty (negligence), and the person's failure led to the loss (proximate cause).

4.  For the purpose of financial liability, by regulation, command responsibility is defined as the obligation of the commander to ensure all Government property within his/her command is properly used and that proper custody, safekeeping, and disposition of Government property is provided.  This responsibility is inherent in command.

5.  The applicant was the approving official who signed the driver's military driver's license.  The license he signed was the enabler that allowed the driver to drive the HMMWV.  Had the applicant properly exercised his duty to verify the license application, he would have seen that the driver did not have the required 

civilian driver's license, did not pass the written driver's license examination, and had not taken the road test.  As a result, the driver would not have been the driver leading to the accident.

6.  Nevertheless, the applicant's unit was not fully staffed to properly review each document for the applicant's signature.  His operations officer was already deployed to Afghanistan.  He relied on an inaccurate and incomplete license application sent to him by his motor sergeant.  At the same time, as with the rest of his unit, the applicant was operating in a time-compressed training environment to prepare his unit to be certified for combat operations in Afghanistan.

7.  The 157th Infantry Brigade complied substantially with the procedural requirements of Army Regulation 735-5 in conducting the FLIPL.  This means relief based on procedural error is not appropriate.  The 157th Infantry Brigade appears to have properly maintained ultimate responsibility over the HMMWV through an accountable officer and appropriately initiated the FLIPL.  Nothing submitted by the applicant or in his reconsideration request provides significant additional information concerning the accident and/or the contributing factors on its occurrence.  The approving authority was under no obligation to approve the applicant's extension request and, in any event, the submission by the applicant was considered by the IO and forwarded to the approval authority.  The delay in notifying the applicant of the final assessment of liability did not change the finding that he was negligent and liable; it simply delayed his opportunity to seek reconsideration.

8.  Based on the facts surrounding the incident, however, the applicant is not liable as a matter of law when applying the concepts of negligence and proximate cause as defined in Army Regulation 735-5.  The applicant exercised command responsibility over the HMMWVs used by his unit and ultimately owed a duty for the safekeeping of the vehicles.  However, command responsibility is not a strict liability standard.  The record must show that a negligent failure to exercise command responsibility proximately caused the loss of the property.  In this case, the company commander was negligent in this regard by granting the applicant a military driver's license.  However, this was not ultimately the proximate cause of the accident leading to the loss.  The lack of supervision proximately caused the accident.

9.  In view of the foregoing and in the interest of justice and equity, it would be appropriate to correct the applicant’s records to show he was not found liable for the damaged vehicle. 


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 $5,516.70 as indicated in FLIPL Number AC-02-xx.

2.  The Board further requests that the Defense Finance and Accounting Service (DFAS) reimburse the applicant any amount of the $5,516.70 already collected from the applicant's pay as a result of these Proceedings.



      ___________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)                                         AR20090013162



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ABCMR Record of Proceedings (cont)                                         AR20090013162



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