BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100020177 


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:

* he be found not liable for the loss of Government property in the amount of $2,499.00
* he be refunded $2,499.00 for a debt incurred as a result of a Financial Liability Investigation of Property Loss (FLIPL)   

2.  The applicant states that in November 2009 he discovered his pay had been reduced and a FLIPL had been processed, finding him liable for items.  He was charged one month's base pay (approximately $2,500.00).  At no time was he ever formally or informally contacted by his last unit regarding the FLIPL.  He was never given the chance to rebut the findings of the investigating officer (IO) nor was he ever questioned by the IO.  He requests the findings of the IO be thrown out and he be reimbursed the money garnished from his pay.  He does not understand how he can be exonerated in the IO's findings but held accountable in his recommendations.  Had he been afforded the minimum due process required under the FLIPL regulation to be notified of the FLIPL, and had an opportunity to seek legal advice and adequately rebut these matters, he most likely would have been absolved of any financial liability.      

3.  He points out the IO states in his findings that "All items were properly accounted for, but the appropriate actions were not taken to report them to CIF [Central Issue Facility] due to the fact that he didn't know they were on his temporary hand receipt."  He states the findings of the IO exonerates him by stating he accounted for the items, but he did not take the actions to remove them from his temporary hand receipt because he did not know he had a temporary hand receipt.  At no time was he ever notified by his Brigade S4 or his Battalion S4 of these items still being on his temporary hand receipt.  In the IO's recommendation he states "The loss of accountability occurred because SGT [applicant's last name] never turned in the issue documents to appropriate personnel at CIF in a timely manner."  He contends the items were accounted for, the items were never lost, and all items were issued and used by Soldiers in Iraq.  The IO's findings and the recommendations contradict one another.  Negligence is not the cause of the loss because the items were never lost, they were accounted for on DA Forms 2062 (Hand Receipt/Annex Number).   

4.  The applicant provides the FLIPL packet.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 10 August 2000 and is currently serving on active duty in the rank of sergeant. 

2.  A DD Form 200 (FLIPL) shows an investigation of property loss (clothing and goggles) was conducted and on 30 June 2009 the Financial Liability Officer found the applicant liable for the lost property ($5,005.53).  The Financial Liability Officer found all items were properly accounted for but the appropriate actions were not taken to report them to CIF due to the fact that the applicant did not know they were on his temporary hand receipts.  The Financial Liability Officer reported that:

* the applicant received a bulk issue of OCIE [organizational clothing and individual equipment] items in preparation of an upcoming deployment
* the depreciated value of the items was $5,005.53
* after receiving the items the applicant began issuing them out to all his company over time with numerous hand receipts
* all of these issue documents were included in the packet
* on 11 May 2009 he was found liable for the items by CIF after his permanent change of station out of Fort Campbell because he did not turn those temporary issue documents in to the correct personnel at the CIF  

3.  On 3 July 2009, the IO signed the notification letter and the applicant was notified he was being recommended for charges of financial liability to the United States Government in the amount of $5,005.53 for the loss of Government property.  There is no evidence the applicant received the letter.    

4.  A memorandum, dated 14 August 2009, states the DD Form 200 was mailed to the applicant on 30 July 2009 but he did not respond within the given time frame. 

5.  On 14 August 2009, the appointing authority signed the DD Form 200 and approved the recommendation.  

6.  On 17 August 2009, a Brigade Judge Advocate found the Financial Liability Investigation to be legally sufficient to hold the applicant liable for $2,499.00, his base pay, and not as recommended by the IO for $5,005.53. 

7.  On an unknown date, the approving authority signed the DD Form 200 and approved the Financial Liability Officer’s recommendation.

8.  On 18 August 2009, the applicant was notified that an approved charge of financial liability was assessed against him by the United States Government, in the amount of $2,499.00, for the loss of Government property.  

9.  In the processing of this case, a staff advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4.  The opinion recommends the financial liability assessed against the applicant be cancelled and he be refunded the amount of $2,499.00, or all monies deducted from his pay as a result of the FLIPL, and his records be corrected.  The opinion states the applicant, as the unit supply sergeant, exercised reasonable and prudent actions by sub-hand receipting the equipment in his possession.  Upon review of the packet, there appears to be several flaws in the IO's report.  These oversights include:

* failure to address the unit commander's responsibility to account for and secure Government property
* failure to take into account the Central Issue Facility Property Book Officer's responsibility to update the temporary hand receipt after 30 days as required by Army Regulation 710-2
* failure to address the three-year time lapse between the temporary hand receipt and the initiation of the FLIPL

10.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond with the given time frame.

11.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes basic policies and procedures in accounting for Army property and accounting for lost, damaged, or destroyed Army property.  It states that an IO's responsibility is to determine the cause and value of the loss, damage, or destruction of Government property listed on the FLIPL and to determine if assessment of financial liability is warranted.  Individuals may be held financially liable for the loss, damage, or destruction of Government property if they were negligent or have committed willful misconduct and their negligence or willful misconduct is the proximate cause of that loss, damage, or destruction.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the items were accounted for, the items were never lost, and all items were issued and used by Soldiers in Iraq.  

2.  The IO found all the items were properly accounted for by the applicant but the reason they were considered a loss to the Government was because the hand receipts were never turned in to CIF in a timely manner.

3.  The Director of Supply, Office of the Deputy Chief of Staff, G-4 believes the applicant exercised reasonable and prudent actions by sub-hand receipting the equipment in his possession.  The advisory opinion also points out several flaws in the IO's report.  

4.  The property in question was never lost since the items were receipted on hand receipts by the applicant   Therefore, it appears there was no negligence on the applicant's part or willful misconduct and he was unfairly or inequitably assessed liability for the loss of Government property.  

5.  Based on the foregoing, it would be equitable to grant the applicant’s request for relief.      

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 to show he was not found financially liable for the lost property and to refund to him any monies deducted from his pay (up to $2,499.00) as a result of the erroneous 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)                                         AR20100020177





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ABCMR Record of Proceedings (cont)                                         AR20100020177



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