IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100007176 


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 that his financial liability related to a Financial Liability Investigation of Property Loss (FLIPL) be determined invalid.

2.  The applicant states he was charged $2,930.40 under a FLIPL and he does not believe the findings of the FLIPL are correct.  He contends that according to Army Regulation 735-5 (Policies and Procedures for Property Accountability), individuals may be held financially liable for loss or damage of U.S. Government property if they are negligent and their negligence is the proximate cause of that loss or damage.  A FLIPL may justify holding him liable only when the financial liability officer establishes that his responsibility for property, combined with a negligent act or omission on his part while maintaining or accounting for the property, caused the loss or damage.

3.  The applicant provides FLIPL Case Number XXXX-XXX-08 and all allied documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a staff sergeant (SSG)/pay grade E-6.

2.  On 5 December 2007, a DD Form 200 (Financial Liability Investigation of Property Loss) was initiated.  It shows that U.S. Government property valued at $13,175.21 was identified as lost on 8 November 2007.

3.  On 1 April 2008, the financial liability officer completed his investigation.  He determined the U.S. Government property was lost through simple negligence by the applicant.  He stated that in or about mid September 2007, the applicant was in the process of transferring from the medical troop to the maintenance troop and was advised by Sergeant First Class O____ and the supply sergeant, SSG A____, to clear his hand receipt before transferring.  The applicant signed the hand receipt but did not date it.  SSG A____ stated the applicant never dated his hand receipts and they are entered into the database on the printed date.  The hand receipt was printed prior to the applicant signing for the equipment.

4.  The financial liability officer stated the applicant never signed a component hand receipt or established a shortage annex; therefore, he was responsible for one complete tool set.  The applicant failed to keep track of his assigned equipment, one air flow tester and a supplementary tool kit.  SSG A____ stated the applicant helped her move the items to the maintenance bays which were being used for excess tool layouts.  The applicant should never have placed the items he signed for in the bays for distribution throughout Fort Hood.  The financial liability officer concluded the applicant was solely responsible for the lost tools and equipment as a result of simple negligence.  He had the duty to safeguard the property he signed for and the proximate cause for the loss was his lack of knowledge of what he actually signed for.  If the tools were indeed turned in, it was his responsibility to clear his hand receipt before any items were laid out as excess.

5.  There is no evidence showing the FLIPL approving authority received a legal opinion indicating the FLIPL findings were legally sufficient and that the FLIPL was completed in accordance with Army Regulation 735-5.

6.  On 3 April 2008, the applicant was notified that he was recommended for charges of financial liability to the U.S. Government in the amount of $2,930.40 for property loss.  He was advised of his rights to inspect and copy Army records relating to the debt, legal advice, and to submit a statement and other evidence to the approving authority in rebuttal of the survey officer's recommendation.  He was also instructed to review Army Regulation 735-5 pertaining to his rights and rebuttal submission.  The applicant acknowledged receipt of the notification on the same date.

7.  On 24 April 2008, the applicant was notified that an approved charge of financial liability had been assessed against him in the amount of $2,930.40 for the loss of U.S. Government property.  He was also advised of his rights.

8.  The applicant acknowledged receipt of notice of the assessment of financial liability and on 14 May 2008 he submitted a rebuttal to the financial liability investigation.  He stated that he acted as a reasonable and prudent person under the circumstances.  The FLIPL investigating officer stated the loss of the equipment was his fault because he failed to keep the tools secure, but that is not true.  The air flow tester and the tool kit were secured in a locked container in the maintenance bay.  The locks on the containers were cut so the equipment could be distributed prior to deployment.  He stated he enclosed sworn statements from First Lieutenant (1LT) F____ and Specialist S____ that corroborate the fact that the tools were loaded into locked containers.  He was not present when the locks were cut and had no control over the equipment.  He cannot understand how his actions could be considered negligent or what other actions he could have taken to prevent the loss.

9.  The applicant provided a sworn statement from 1LT F____.  In the statement, 1LT F____ stated that when he was going through their equipment from Iraq, he noticed the tool room and trailer arrived unlocked, empty of tools, and unserviceable.

10.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-4.  The opinion states that in accordance with the pertinent regulation, it is mandatory that a legal opinion be obtained when an individual is being recommended for pecuniary liability.  The package forwarded to them did not include the required legal review.  The command did not acknowledge completion of a legal review which is a violation of the pertinent regulation.  Therefore, the applicant cannot be held liable.  The opinion further states the applicant stated that someone authorized the lock to be cut without his presence and the person who cut the lock assumed responsibility to safeguard the tools until the applicant could account for them.

11.  The advisory opinion was forwarded to the applicant for his acknowledgement and/or rebuttal.  On 18 August 2010, he concurred with the advisory opinion.

12.  Army Regulation 735-5 prescribes the basic policies and procedures in accounting for Army property.  Chapter 13 prescribes the accounting procedures to be used when Department of the Army property is discovered lost, damaged, or destroyed through causes other than fair wear and tear.  It provides authorized methods to obtain relief from property responsibility and accountability.  It also prescribes the Department of the Army policy on such losses and financial liability.  It states that the FLIPL prescribed by the Department of Defense Financial Management Regulation, volume 12, chapter 7, replaces the old Army report of survey system.

	a.  In order to assess liability, the approving authority must find:  (1) the person to be held liable had a duty/responsibility to take care of the property, (2) the person failed to carry-out that duty (negligence), and (3) the person's failure led to the loss (proximate cause).  The proximate cause is defined as 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 predominate cause, from which the loss or damage followed as a natural, direct, and immediate consequence.  The approving authority will notify the person to be charged that financial liability has been assessed.  The notification will be in memorandum format and will inform the person they have the right to request reconsideration of (appeal) the approving authority's decision.

	b.  Paragraph 13-38 further provides that upon receiving a FLIPL on which the approving authority believes financial liability is appropriate, the approving authority will obtain a legal opinion as to its legal sufficiency prior to determining whether to assess financial liability.  A legal advisor will provide a written opinion as to the legal sufficiency of the FLIPL.  If, in the legal advisor's opinion, the FLIPL is not legally sufficient, the opinion will state the reasons why and make appropriate recommendations.  The opinion will be attached to the FLIPL prior to the approving authority's review and decision.  The approving authority should ensure corrective actions are taken before taking final action to assess financial liability.  A lawyer other than the one who advised the respondent in the preparation of the respondent's rebuttal statement must perform the legal review required by the approving authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be relived of financial liability for the loss of U.S. Government property has been carefully considered.

2.  He was responsible for U.S. Government equipment and had a duty to take care of that equipment.  He failed to carry out his duty to safeguard the equipment entrusted to him.  This failure, though contributory, was not the proximate cause of the loss of the equipment.

3.  Corroborating sworn statements attest that the tool room and trailer arrived unlocked, empty of tools, and unserviceable.  Additionally, there is no evidence showing the FLIPL was processed through the appropriate legal channels in order to confirm the FLIPL findings were legally sufficient and that the FLIPL was completed in accordance with the applicable regulation.  Therefore, the decision to hold the applicant financially liable for the loss is flawed and should be reversed.

4.  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 the evidence presented is 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.  showing he was found not to be financially liable and voiding any and all of his financial liability in connection with the subject FLIPL;

	b.  canceling his outstanding debt to the U.S. Government in connection with the subject FLIPL; and

	c.  refunding all monies deducted from his pay in connection with the subject FLIPL.



      _______ _   X______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100007176



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)