IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100012858


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, reimbursement for monies he paid at the time of his separation for lost Organizational Clothing and Individual Equipment (OCIE).

2.  The applicant states, in effect, his unit did not conduct a Financial Liability Investigation of Property Loss (FLIPL).

3.  The applicant provides:

* copy of a 2-page letter addressed to Senator M____ W____
* DA Form 2823 (Sworn Statement) [applicant]
* DA Form 2823 [Private First Class (PFC) Fa___]
* DA Form 2823 [Sergeant (SGT) Fr___]
* DA Form 2823 [Warrant Officer One (WO1) R____]
* DD Form 200 (FLIPL)
* DD Form 362 (Statement of Charges/Cash Collection Voucher)
* Fort Hood (FH) Form 735-1 (Cash Sale Authorization – Central Issue Facility (CIF)/Self-Service Supply Center (SSSC), OCIE/Hand Tools)
* DA Form 3645 (Automated Clothing Record)
* DA Form 3645 (Automated Partial Turn-In Record)
* packing list
* extracts from Army Regulation 735-5 (Policies and Procedures for Property Accountability)
* 
company telephone roster
* photocopied business cards [Veteran's Service Officer B____ and Medical Evaluation Board/Physical Evaluation Board Outreach Counselor H____]
* Enlisted Record Brief (ERB)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 January 2007 in the rank of PFC.  He completed training and he was awarded military occupational specialty (MOS) 21B (Combat Engineer).  The highest rank/pay grade he attained while serving on active duty was PFC/E-3.

2.  On 22 February 2008, he injured his ankle and he was diagnosed with left ankle pain following an ankle strain.  On 17 April 2008, he was given a temporary physical profile and he became non-deployable.

3.  In April 2008, his unit deployed to Iraq.  As part of normal unit pre-deployment operations, unit members' OCIE was shipped to Iraq in advance of the main body.

4.  On a later undetermined date his OCIE was shipped back from Iraq.  Upon arrival, he received, inspected, and took possession of his equipment from the Rear Detachment Noncommissioned Officer in Charge (NCOIC).

5.  A few days later, he informed the Rear Detachment NCOIC that one of his OCIE bags had not been returned from Iraq.  The Rear Detachment NCOIC inquired with his unit in Iraq, but the equipment in question could not be located.

6.  On 2 March 2009, a DD Form 200 was initiated.  It shows that the following government property valued at $234.05 was discovered as non-expendable shortages by the applicant on 27 February 2009.  This form shows that negligence or abuse was evident or suspected.

* Canteen, 1 Quart with M1 Cap			(C96536)		$  4.65
* Cup, Water Canteen Wirehandle			(F54817)		$11.06
* Pouch, Bandoleer Ammunition			(DA6529)		$  9.88
* Set, Fighting Load Carrier					(DA655K)		$39.95
* Pouch, M4 Two Magazine					(DA6562)		$  7.25
* Pouch, Grenade, Molle						(DA6563)		$  9.15
* Canteen, General Purpose Pouch (2)	(DA6588)		$19.82
* 
Pouch, Grenade, Hand (2)					(DA6593)		$  9.20
* Overalls, Cold Weather						(C50256)		$42.30
* Shirt, Cold Weather							(S04834)		$59.51
* Liner, Cold Weather Coat					(L70172)		$21.28
														Total		    $234.05

7.  On 4 March 2009, an investigating officer concluded negligence or abuse was evident or suspected.

8.  On 6 March 2009, a DD Form 362 was initiated in the amount of $193.34.

9.  On 10 March 2009, he signed an FH Form 735-1 as reimbursement for various non-expendable shortages.

10.  On 27 April 2009, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.  His narrative reason for separation was "disability, severance pay, non-combat related."  His DD Form 214 shows he completed 2 years, 3 months, and 24 days of net active service during this period of active service.

11.  There is no documentation in the available records, other than the generalized statement by PFC Fa__, and he has not provided any documentation, to show the lost OCIE items were surrendered to his unit for shipment to Iraq.

12.  He submitted:

	a.  a copy of a 2-page letter addressed to Senator M____ W____ in which he asks the Senator for assistance in determining the status of the Army's FLIPL related to his lost property.

	b.  DA Form 2823 in which he states what happened relative to his lost equipment.

	c.  DA Form 2823 from PFC Fa___ who states he saw the applicant's equipment while in Iraq.

	d.  DA Form 2823 from SGT Fr___ who states he received the applicant's equipment when it was shipped back from Iraq and he called the applicant to inventory and receive his equipment upon its arrival.  He states he told the 

applicant to ensure that everything was there and the applicant replied in the affirmative.  He also states the applicant later returned to say he was missing a bag of equipment which could not be located after follow-up calls to Iraq.

	e.  DA Form 2823 from WO1 R____ who states she asked the applicant why he completed the cash sale authorization form instead of waiting for the outcome of the FLIPL.  She states the applicant stated he wanted to meet his "final-out" date and had no faith in the organization.

	f.  DD Form 200 - initiated but not completed.  The applicant signed the cash sale authorization form before the investigation could be completed.

	g.  DD Form 362 - initiated but not completed.  The applicant signed the cash sale authorization form before the investigation could be completed.

	h.  FH Form 735-1 - completed and signed by the applicant.

13.  In connection with the processing of this case, on 9 December 2010, an advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4, Headquarters, Department of the Army.  The advisory official recommended that the financial liability assessed against the applicant be upheld for the lost equipment on the FLIPL as indicated.  He further opined that the applicant failed to exercise reasonable and prudent actions to properly inventory and safeguard his OCIE.  Lastly, he stated the applicant voluntarily signed a cash sales authorization form to pay for his missing OCIE rather than await the results of a FLIPL.

14.  On 13 December 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

15.  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 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 non-financial liability, and ensuring supply discipline and management controls.

16.  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.  It 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.

	a.  Paragraph 12-2 states that a person who admits liability may voluntarily purchase replacements for lost, damaged, or destroyed hand tools or OCIE from the SSSC or CIF.  When the lack of item availability prevents immediate purchase, account for the lost, damaged, or destroyed hand tools or OCIE items by using the DD Form 362.  The procedures for initiation and processing a DD Form 362 are contained in paragraph 12-3.  No cash sales will be made without a written authorization signed by the person's commander or designated representative.  The authorization statement specifies:  "I authorize (Name and Grade) to purchase the following hand tools (or OCIE).  Purchased items will remain the property of the U.S. Government."  Allowable depreciation is chargeable to the accounting classification for the mission/base operation element funding the operations in which the tools or OCIE were used.

	b.  Paragraph 13-3 requires the initiation of a FLIPL under certain circumstances.  Sub-paragraph 13-3a(1) states that a FLIPL will be initiated when negligence or willful misconduct is suspected as the cause, and the individual does not admit liability and refuses to make voluntary reimbursement to the Government for the full value of the loss, less depreciation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reimbursement of monies he paid as settlement for lost OCIE has been carefully considered; however, there is insufficient evidence to support his request.

2.  He contends the unit should have completed a FLIPL for his lost OCIE.  While he refused to admit liability for the lost OCIE, he provided evidence that shows he made a voluntary reimbursement to the Government for the full value of the loss.  At that point, the requirement for a FLIPL ceased and processing actions were terminated. 

3.  Supply discipline is an individual responsibility.  The evidence of record shows he failed to exercise reasonable and prudent actions to properly inventory and safeguard his OCIE.  There is no evidence to support his contention that the lost OCIE was never returned from Iraq.  

4.  Lastly, the evidence shows he signed a cash sales authorization form to pay for his missing OCIE more than 6 weeks before his eventual separation date rather than await the results of a FLIPL.  The results of the FLIPL could have found in his favor, but he chose to instead pay for the items in order to settle his account.

5.  In view of the foregoing, there is no basis for granting relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________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)                                         AR20090000724



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ABCMR Record of Proceedings (cont)                                         AR20100012858



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