IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20090021055 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records to show that he was not held liable for damage to government property in the amount of $2,287.00.  He further requests that he receive a refund of monies paid for this liability.

2.  The applicant states the following arguments.

	a.  Before a person can be held financially liable, the facts must show that he or she violated a particular duty involving the care of the property through negligence or willful misconduct.

	b.  The commander disregarded Army Regulation 735-5 (Policies and Procedures for Property Accountability), paragraph 13-29 6b(1) [sic].  He charged the applicant because of negligence resulting in damage to a government vehicle.  There were no signs of "absence of due care."  He followed the instructions of the manual and double-checked the hook-up procedures.  The light tower set was connected to the vehicle with due care and everything was fine.  He also assisted his partner with hooking up his trailer to his government vehicle.  They pulled away from the maintenance building.  He was driving very slowly and cautiously when his trailer socket came off its ball hitch.  He stopped and made an assessment of the situation and called his section leader.  A patrol car was sent to the accident scene.  He was not given a citation because it was a simple accident and there were no signs of misconduct or violation of any regulation.

	c.  The owner's manual for hooking up the trailer never mentioned a safety pin.  The safety pins were missing on all trailers for light tower sets at Fort Riley, Kansas.  A call was made to the company that built the light tower sets.  The response was that installation of the pins was the responsibility of the unit.  The Fort Riley maintenance section had failed to add pins that would have held the locking mechanism in place.

	d.  After the accident, the maintenance personnel dead-lined all the light tower sets and added the pins.  The garrison commander was made aware of the situation, but would not change his mind, even though there was no evidence of willful misconduct or negligence on his part.

3.  The applicant provides a copy of the Financial Liability Investigation of Property Loss (FLIPL) (08-D__-1__).

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving on active duty as a staff sergeant/pay grade E-6 at Fort Riley.

2.  A DA Form 3975 (Military Police Report), dated 31 July 2008, reports that the applicant was involved in a traffic accident at 1300 hours the same day.

	a.  The investigating officer stated, in essence, that the applicant was operating a 2008 Ford Explorer when his trailer came off of the hitch and struck the rear of the vehicle, causing damage to the right rear of the vehicle.  There were no reported injuries and seatbelts were utilized.  The applicant was titled and released.

	b.  The applicant made a sworn statement essentially saying that on 31 July 2008 at approximately 1245 hours, he backed his vehicle into the garage to hook up a trailer loaded with a light tower set.  He connected the trailer by placing the locking mechanism in the downward position.  There was no pin for the locking mechanism.  He then crossed and hooked up the safety chains.  He then connected the trailer light cord to the truck connector.  He lifted up the trailer leg and locked it in place.  He pulled out of the garage and pulled up next to the curb.  He then waited for another Soldier who was to meet him.  When the other Soldier arrived, they hooked up the other vehicle and trailer.  The other Soldier pulled out first and the applicant followed and was traveling at about 10 miles per hour.  He felt a tug from the rear of the vehicle.  He slowed almost to a stop when the light set hit the rear of the vehicle.  He noticed that the trailer had come loose from the hitch.  He then exited his vehicle, checked the damage, and called his team leader to report the accident.  The other Soldier returned, notified the military police and took pictures.  About 5 minutes later the applicant's team leader arrived and advised that it was a traffic accident.

	c.  The driver of the other vehicle and trailer made a sworn statement confirming the applicant's sworn statement.

3.  A repair estimate, dated 19 August 2008, shows the damage to the rear quarter panel, tail gate, and tail lamp was $2,287.00.

4.  A DD Form 200 (FLIPL) (08-D__-1__) was initiated on 4 September 2008.  In item 15a (Findings and Recommendations), the financial liability officer (FLO) stated that based on his conversations with both the applicant and his supervisor, he concluded that the trailer was not properly attached to the vehicle.  Even though the applicant had double checked the trailer and it appeared to be properly hitched, it was not.  The FLO's experience with ball hitches is that they are not the most reliable type of hitch.  By way of qualification in this assessment, he states he worked in the agriculture industry in Southern Kansas and Northern Oklahoma and has had trailers come unhitched from vehicles even though he hooked them properly and had double-checked them.  Therefore, the FLO did not find the applicant liable for the repair expense.

5.  On 31 October 2008, the Administrative Law Attorney for the Staff Judge Advocate, 1st Infantry Division, Fort Riley, found the FLIPL to be legally insufficient.

	a.  The FLO recommended that no financial liability be assessed against the applicant.  The evidence established that the vehicle had not been dispatched to the applicant at the time he was driving it and the trailer came unhitched and struck the rear of the vehicle.

	b.  The evidence revealed that the vehicle had traveled about 200 meters when the trailer came unhitched and smashed into the vehicle.

	c.  The trailer in question was just a year old and was in good working order.

	d.   The applicant was negligent by not obtaining a safety pin and securing it in the locking mechanism.

	e.  The combined weight of the trailer and light tower set exceeded the towing guidelines for the vehicle.

	f.  The FLO's findings were not supported by the evidence.

	g.  There is no rule preventing assessment of financial liability on the facts of the case.

	h.  The Administrative Law Attorney recommended that the applicant be assessed for the repairs to the vehicle, not to exceed 1 month's base pay, and to allow reasonable monthly payments.

6.  On 5 November 2008, the Director of Logistics Financial Liability Program Manager notified the applicant that he was recommending he be charged with financial liability in the amount of $2,287.00 for the damage to government property.  He was advised of his right to inspect and copy Army records relating to the debt, obtain legal advice, and to submit a statement and other evidence in rebuttal.  Item 13 (Appointing Authority) of the DD Form 200 shows the DOL recommended disapproval of the FLO's recommendation.  Item 13b contains the statement, "Hold [applicant's rank and name] liable for damage to the govt.  SUV in the amount of $2,287.00.  His base pay is $2,607.60."

7.  On 18 November 2008, the applicant submitted a rebuttal.

	a.  The applicant contended that he exercised due care in attaching the trailer to the vehicle and was not negligent.  Army Regulation 735-5, paragraph 
13-29b(1), provides that before a person can be held financially liable, the facts must show that the person violated a particular duty involving the care of the property through negligence.

	b.  The applicant contends there is no evidence contradicting the FLO's finding that ball hitches are not the most reliable type of hitch to the degree warranting his being held financially liable.

	c.  The applicant contends that the appointing authority, who did not concur with the FLO, was required by regulation to provide his rationale for such nonconcurrence.  He cites Army Regulation 735-5, paragraph 13-37c(2), which provides that when the appointing authority nonconcurs with the FLO's recommendation, he will enter a statement in item 13b showing his rationale.

	d.  The applicant contends the entry made by the appointing authority in item 13b is a conclusion statement saying to hold him liable for damages.  However, nothing else in item 13b or on any continuation sheet shows the appointing authority's rationale for holding him liable.  Without such a showing, the basis for holding him liable is legally insufficient.

8.  On 22 January 2009, the Deputy Garrison Commander, Fort Riley, approved the DOL's recommendation.
9.  On 25 March 2009, the applicant submitted a request through the DOL to the Deputy Garrison Commander requesting reconsideration of the decision to assess financial liability for the subject accident.

	a.  The applicant stated that the basis for his request was legal error.

	b.  The applicant argued that the FLO did not recommend any financial liability.

	c.  The DOL did not concur, but failed to provide his rationale.

	d.  The approving authority failed to provide additional remarks or evidence to contradict the FLO's findings or to support the DOL's recommendation.

10.  On 17 April 2009, the Garrison Commander denied the applicant's request for reconsideration and directed the Fort Riley Defense Military Pay Office to process this debt from his military pay in the amount of $2,287.00.

11.  In the processing of this case, an advisory opinion was obtained from the Director of Supply, Headquarters, Department of the Army Office of the Deputy Chief of Staff, G-4 [Logistics], Washington, DC.

	a.  The opinion states that the failure to properly attach the trailer to the vehicle was the proximate cause of the subject damage.  It also states that the applicant had failed to properly attach the trailer and that his failure was due to negligence.  However, due to the inconsistencies and incompleteness of the investigation, the packet is insufficient to hold the applicant liable.

	b.  The opinion further states that an inquiry with the manufacturer of the hitch confirmed that there is no pin used as a locking device as indicated in the investigation.  The purpose of the hole on the locking lever is for using a lock to prevent theft of the trailer.

	c.  The investigative report contains conflicting statements.  The FLO concluded that the trailer was not properly attached to the vehicle, but did not find the applicant liable for the damage.  The legal review stated that the investigation was legally insufficient, yet recommended that the applicant be held financially liable.  The reviewing officer stated that the FLO's findings were not supported by the evidence, yet concludes recommending the assessment of financial liability.

12.  Army Regulation 735-5 provides:

	a.  at paragraph 13-29b(1) 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; and

	b.  at paragraph 13-37a that the appointing authority will review the action taken by the FLO, making certain all requirements have been met.  If further investigation is required and/or pertinent instructions have not been complied with, the appointing authority will return the investigation to the FLO as an enclosure to a memorandum specifying what additional data and/or corrections are required. 

	c.  at paragraph 13-37c that if the appointing authority nonconcurs with the FLO's recommendations, he or she will check "Disapprove" in item 13a and enter a statement in item 13b showing the rationale upon which his or her decision is based.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he was not held liable for damage to government property in the amount of $2,287.00.  He further requests that he receive a refund of monies paid for this liability.

2.  The available evidence clearly shows the applicant was involved in a traffic accident resulting in damage to a government vehicle in the amount of $2,287.00.  Furthermore, the proximate cause of this accident was the unexpected disconnection of the trailer from the vehicle's ball hitch.

3.  The FLO recommended that the applicant should not be held financially liable for the damage to the government vehicle because he had double-checked the hitch and it appeared to be properly hitched.  The FLO also stated that based on his personal experience with ball hitches, they were not the most reliable.

4.  The Administrative Law Attorney stated that the applicant was negligent as evidenced by his discussion about the safety pin.  The attorney also stated that the FLO's findings were not supported by the evidence and that there was no rule preventing assessment of financial liability.

5.  The appointing authority nonconcurred with the FLO's recommendation, but did not provide any rationale for his nonconcurrence.  Neither did he return the investigation to the FLO as an enclosure to a memorandum specifying what additional data and/or corrections were required.

6.  The advisory opinion clearly pointed out that the inconsistencies in the investigation flawed the report to the point that the applicant should not be held financially liable.

7.  In view of the above, the applicant's request should be granted.

BOARD VOTE:

__X_____  __X_____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting the DD Form 200 and related documents to show he was not held financially liable for the subject damage and

	b.  auditing his military pay records and refunding all monies due as a result of this correction.



      _______ _  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)                                         AR20090021055



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ABCMR Record of Proceedings (cont)                                         AR20090021055



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