BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20100021717 


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 he be relieved of financial liability imposed by a Financial Liability Investigation of Property Loss (FLIPL) Number WXXXX-1X-HXX-0XX initiated on 3 September 2009, and that he be refunded all monies collected from him.

2.  He states that an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation found him liable for the loss of 
12 M-40 protective masks, and his request for reconsideration for the assessment of financial liability against him was denied by the approving authority.  At that time, he was company commander for the 418th Medical Logistics Company, at Fort Hood, TX.  During 2007 and 2008 a 100% inventory of his unit’s chemical protective masks was conducted, both inventories reflected no shortages or deficiencies.  Later it was brought to his attention that some masks had deficiencies.  Both he and his first sergeant provided statements they were not aware of any unaccounted chemical protective mask.  The applicant states that he gave instructions to his 1SG to remedy the chemical protective mask deficiencies.

3.  In May 2009, a change of command inventory was conducted with 100% accountability for equipment on the unit’s property book.  Prior to the change of command inventory, a new sergeant (SGT) took over the Nuclear, Biological, and Chemical (NBC) room.  The NBC SGT found non-mission capable masks and unaccountable chemical protective masks.  The NBC SGT indicated that he would 

not sign a hand receipt for the NBC equipment that was unaccountable.  The NBC SGT later signed for the NBC equipment after the 1SG brought him
24 chemical protective masks he borrowed for training purposes from another unit.  The 1SG allegedly told the NBC SGT they were excess “(i.e. not on the property book).”  Apparently, the 24 chemical protective masks were incorporated into the change of command inventory.  The applicant states the NBC SGT and his supervisor both testified in sworn statements prior to the change of command inventory that sub-hand receipts matched the numbers in the books.   

4.  A week after the change of command inventory, his 1SG attempted to retrieve the borrowed 24 chemical protective masks that he acquired for training.  The NBC SGT’s supervisor indicated all the chemical protective masks the 418th had in its procession were on the hand receipt of the new company commander.  This led to initiation of the AR 15-6 investigation and findings that he and his 1SG intended to deceive the new company commander.  

5.  He states there are deficiencies based in the investigation and findings.

	a.  The incoming commander's 100% accountability may have been tainted.
	
	b.  All masks in the unit’s possession to include the 24 borrowed and the 
12 found after the change of command inventory should have revealed an overage of 12 masks.

	c.  There was a NBC training was scheduled for June and July 2009 that was consistent with the 1SG’s attempt to obtain the masks.

	d.  There is no evidence the investigating officer (IO) went to look at or account for the mask or that he examined the hand receipts.

6.  He provides:
		
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 26 August 2009 (with enclosures)
* DD Form 200 (Financial Liability Investigation of Property Loss) for Inquiry/Investigation Number, dated 3 September 2009 
* a legal review memorandum of FLIPL WXXXX-1X-HXX-0XX, dated 
2 September 2009 
* 
a notification memorandum of Financial Liability, dated 25 September 2009
* two rebuttal memoranda of Financial Liability, dated 23 October 2009 and 18 October 2009
* a request for reconsideration memorandum of FLIPL, dated 26 April 2010
* final decision memorandum of financial liability, dated 10 May 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service.  He was appointed in the Virginia Army National Guard as a second lieutenant on 4 January 2003.  In July 2004, he was ordered to active duty.  He was promoted to captain on 1 September 2006.  In June 2007, he took command of the 418th Medical Logistics Company, at Fort Hood, TX.  The company consisted of two officers and 77 enlisted Soldiers.

2.  On 17 August 2009, an IO was appointed to conduct an investigation into the circumstances surrounding the possible loss of and change of command inventory discrepancies involving 24 M-40 protective masks.  

3.  On 19 August 2009, the IO initiated an AR 15-6 investigation and completed the investigation on 26 August 2009.

4.  The IO made the following findings: 

	a.  The applicant took command in 2007.  Inventories of the company’s protective masks for 2007 and 2008 indicated no shortages or discrepancies.  In Accordance with Army Regulation 735-5 (Policies and Procedures for Property Accountability) the applicant was responsible for the equipment.

	b.  The applicant and his 1SG stated they were aware of deficiencies in the NBC room and both denied knowledge of any missing protective masks.  The applicant stated he gave instructions to his 1SG to “get it fixed” but never followed up.

	c.  In 2008, the former NBC SGT was removed from responsibilities and replaced.  It was indicated that problems with the NBC room had been an ongoing issue.  The former NBC NCO was constantly on leave and not doing his job.  The applicant and his 1SG both indicated the former NBC SGT was not a stellar Soldier, resulting in his receiving a mediocre evaluation report.  This showed that the command was aware that a problem existed in the NBC room.

	d.  In 2008, the incumbent NBC SGT took over and found non-mission capable masks and equipment, equipment stored in multiple places, and missing protective masks.  He reported the severity of problems to his command and refused to sign the hand-receipt for NBC equipment.  The NBC SGT stated he was later pressured to sign the hand-receipt by the applicant but still refused.  The NBC SGT stated he finally signed the hand-receipt in May 2009, when the 1SG brought him 24 protective masks, stating they were excess, (i.e. not on the property book), from another unit.  The supervisor of the NBC SGT confirmed this in a sworn statement.

	e.  One week prior to the change of command inventory, the 1SG did borrow from another unit, the exact number, and size of protective masks that were later determined to be missing.  He was unable to provide a training schedule, range requests, or documentation that supported his statement that he only borrowed the protective masks for NBC training.  The 1SG further claimed he was unaware the protective masks were incorporated into the change of command inventory.

	f.  The new company commander conducted his change of command inventory during the month of May 2009.  No shortages of protective masks were identified at that time.  The new commander departed for Medical Service Corps course and the new NBC SGT was on leave.  During this time, the 1SG attempted to retrieve the 24 protective masks that he had borrowed but was stopped by the NBC SGT’s supervisor who realized that all the masks the unit had were on the new command’s hand-receipt.  The supervisor notified the company commander, all the masks were secured.  In August 2009, the NBC SGT was able to find the unit and obtain from Headquarters and Headquarters Company, U.S. Army Garrison, a copy of the hand-receipt by which the 1SG had borrowed the masks.  This information was given to the company commander, he notified the chain of command, and the AR 15-6 was initiated.

	g.  The IO found that the applicant:  
				
* demonstrated poor and negligent property accountability by failing to ensure his unit’s NBC equipment was present and serviceable
* had the duty to initiate corrective action when he was informed of problems with NBC equipment
* under no circumstances should find himself borrowing 24 protective masks for his company to conduct training less than six months prior to deployment
* offering multiple excuses to explain this failure, claiming the former NBC SGT was lazy, the current NBC SGT never explicitly stated 24 masks were missing, the supply NCO didn’t do his job, etc.

* had the supervisory responsibility to identify the problem, but delegated or ignored the responsibility
* failed to initiate any corrective action

	h.  The IO concluded that there was enough evidence that showed the ISG made a deliberate attempt to falsify the records and attempt to cover a shortage during the change of command inventory.  The IO further indicated the timing and specificity of the request to borrow the protective masks without any evidence of scheduled or conducted training and the attempt to return the protective masks after the change of command inventory raised questions.  The IO stated the new company commander was misled into believing the masks were in his inventory.  The 1SG either acted in consultation with or for applicant, because the 1SG was not liable for the masks nor would he in anyway benefit from helping the applicant.  Even if the applicant’s sole involvement was telling the 1SG to “fix the problem” and ignoring the solution, the applicant was responsible to implement proper command supply discipline.  The IO was unable to determine what happened to the original protective masks lost by the unit.  He recommended the commander confer with trial counsel regarding the options for FLIPL, administrative, non-judicial punishment, or Uniform Code for Military Justice (UCMJ) action against the applicant and 1SG.

5.  On 2 September 2009, a legal review restated that the IO was not able to determine where the 24 protective masks were located, but concluded that the 1SG knowingly attempted to conceal the loss and deceive the new company commander by borrowing 24 masks from another unit and substituting them for the missing masks.  The IO proved the applicant was negligent in his supervisory responsibility for the masks.  The AR 15-6 investigation was found to be legally sufficient.

6.  On 3 September 2009, the commander initiated a FLIPL into the circumstances surrounding the negligence and loss of 24 M-40 protective masks.  
7.  On 25 September 2009, the IO signed the DD Form 200.  He determined that the applicant demonstrated poor and negligent property accountability by failing to ensure his unit’s NBC equipment was present and serviceable.  The IO recommended that the applicant be held financially liable for masks.  The IO recommended the applicant be held liable for $1,441.00 for the property loss of 12 protective masks.  The applicant was notified of property financial liability on 25 September 2009.

8.  The responsible officer – the person responsible for the property on unit property records – reviewed the investigation and agreed with the IO.  The responsible officer stated the chain of command was informed of a protective mask shortage and no matters were taken to address the shortage.  Soldiers were not signed out masks for individual accountability, and the 1SG knew 
24 protective masks he had borrowed from another unit were part of a chain of command inventory and did not say anything about it, then tried to obtain them at a later date.  He forwarded the investigation to the FLIPL appointing authority who, on 28 September 2009, approved the IO's recommendation stating he concurred with AR 15-6 investigation finding to hold the applicant financially liable for 12 protective masks.  The appointing authority forwarded the investigation to the FLIPL approving authority who apparently concurred with the appointing authority.

9.  The applicant was notified that he was being held liable for the loss of 12 protective masks for the amount of $1,441.00.  He was afforded due process in accordance with AR 735-5, chapter 13.  He was permitted to rebut the FLIPL and seek reconsideration of the financial liability assessment.  

10.  The applicant rebutted the IO's finding and recommendation.  He stated during his tenure as commander there were never issues of missing protective masks brought to his attention, only unserviceable masks.  He empowered the 1SG to address and solve the problems.  The applicant indicated the FLIPL initially alleged that he owed for 24 protective masks; however, the DD Form 
200 shows he owed for 12 protective mask face piece assemblies, and not for
24 protective masks.  This implies the initial 24 protective masks were accounted for, but only missing the facemask assemblies.  It was his understanding that all of the protective masks were in fact found, and that some had been 
hand-receipted out.  The applicant stated that the IO did not show in his findings that he acted with negligence, willful misconduct, or violate a particular duty.  The applicant noted that it was the responsibility of the IO to show proximate 
cause for loss of Government property before finding financial liability; this was never established given the fact the property was never lost, and he should not be held liable for the loss.

11.  On 26 April 2010, the applicant requested reconsideration of the assessment of financial liability against him.  The approving authority denied his request and continued to hold him liable.

12.  In the processing of this case, an advisory opinion was obtained from the Chief, Office of The Deputy Chief of Staff, G-4 which states that the finding of financial liability imposed against the applicant in FLIPL Number WXXXX-1X-HXX-0XX, dated 2 September 2009 is upheld and he should be assessed for the loss of Government property.  The official stated that the applicant was made aware of problems with the NBC room on numerous occasions.  However, he decided to delegate his responsibility to the 1SG and conducted no follow-up.  The applicant signed inventory during that time circling “no discrepancies noted” which was a direct violation of DA Pam 710-2-1 that requires a visual check of equipment and notable list of damaged property.  The official further stated that during the change of command inventory there was a shortage of protective masks, which was filled by borrowed unserviceable masks from another unit.  In their view, this constituted a deliberate attempt to deceive.  Given the circumstances, it was their opinion that the applicant failed to assume proper command responsibility of Government property entrusted to him.  The applicant was provided an opportunity to respond to and/or rebut the advisory opinion and did not respond.

13.  AR 735-5 (Policies and Procedures for Property Accountability) prescribes the basic policies and procedures in accounting for Army property.  Chapter 13 prescribes the accounting procedures to be used when DA 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 DA policy on such losses and financial liability.  It states that the FLIPL prescribed by the DOD Financial Management Regulation, volume 12, chapter 7, replaces the old Army report of survey system.

14.  AR 735-5 states that 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.  In short, proximate cause means that the loss would not have happened but for the negligence of the individual.  Finally, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the incumbent commander’s 100% accountability of all masks in the unit’s possession, to include the 24 borrowed and the 12 found after the change of command inventory, should have revealed an overage of
12 masks and that NBC training scheduled for June and July 2009 was consistent with the 1SG’s attempt to retrieve the masks.  There is no evidence the IO went to look at or account for the masks or that he examined the hand receipts.

2.  The G-4 advisory cites the applicant's negligence in the handling of the chain of command inventory and concurs in the assessment of liability against the applicant.  The applicant's negligence was the proximate cause of the loss of the 12 protective masks.  The opinion found it appropriate to hold him liable for the $1,080.75.

3.  As the company commander it was his responsibility to ensure that any loss was properly accounted for and documented.  While the task of doing this was delegated to a subordinate, it does not relieve him of his responsibility to ensure that the proper actions were completed.  

4.  The applicant failed to ensure proper accountability of the total inventory under his responsibility and ensuring that the protective masks were properly maintained and the shortage followed up on during his period as company commander.  This demonstrates negligence on his part, which resulted in a loss of accountability for the missing protective masks.

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 that 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)                                         AR20100021717



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ABCMR Record of Proceedings (cont)                                         AR20100021717



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