BOARD DATE:	 9 August 2011

		DOCKET NUMBER:  AR20100028029


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 Financial Liability Investigation of Property Loss (FLIPL) #WTXXXX-09-02, dated 27 October 2008, be overturned and he be reimbursed the $1,522.35 that was wrongfully withheld from his pay.

2.  The applicant states, in effect, that in September 2009, 6 months after he left the 307th Psychological Operations (PSYOP) Company, he was informed that he was being held financially liable for property loss that was identified as a result of a change of command inventory conducted for the incoming commander and the incoming supply sergeant (the applicant).  The applicant states a memorandum, dated 2 June 2010, informed him of the details involving the financial assessment against him.  However, proper procedures were not followed in the preparation of the investigation report or in the notification process. 

3.  The applicant provides copies of:

* Memorandum, Headquarters, 7th PSYOP Group, Moffett Field, CA, subject:  FLIPL (#WTXXXX-09-02), ($39,608.70), dated 2 June 2010
* Memorandum, Headquarters, 7th PSYOP Group, subject:  Legal Review of FLIPL No. WTXXXX-09-02, for Headquarters and Headquarters Company (HHC), 7th PSYOP Group, dated 21 March 2010
* The applicant's rebuttal to the findings and recommendations of the FLIPL, dated 26 June 2010
* DD Form 200 (FLIPL)
* DA Form 7531 (Checklist and Tracking Document for FLIPL)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a U.S. Army Reserve (USAR) staff sergeant and a school trained supply sergeant. 

2.  The chain of events as described by the applicant and/or documented in the investigation are as follows:  

	a.  In June 2008, a change of command inventory was conducted.  Property valued at $32,000 was noted to be missing and a FLIPL was completed and forwarded.  Due to errors, the FLIPL was returned for corrections.  The corrections were not made.

	b.  An investigation was completed in June 2009 and the Investigating Officer (IO) recommended that the applicant be held liable in the amount of one month's base pay ($3,044.70).  The approving authority approved the FLIPL on 26 April 2010 and concurred with the IO that the applicant should be held financially liable for this amount.

	c.  A second inventory was done between 6 and 8 March 2009.  The applicant was only present for one day of the inventory.  The amount of missing equipment increased to $39,608.70.

	d.  A memorandum from the Judge Advocate, 7th PSYOP Group, dated 
21 March 2010, provided a legal review of the FLIPL.  The memorandum states the FLIPL was reviewed and found to be legally insufficient.  Specifically, the Judge Advocate found, in effect, that:

		(1)  The investigation substantially complied with the legal requirements except for the provisions governing time constraints.  Per Army Regulation 735-5 (Policies and Procedures for Property Accountability), Section 13-6, the general time constraints to initiate and process financial liability investigations of property loss for the USAR under normal circumstances is 240 days.  This investigation has been open for 400 days.  A written justification for the delay is required and has not been provided for the unusual long delay.

		(2)  No error affected the outcome of the proceedings.

		(3)  Insufficient evidence supports the findings of the investigation.  First, at the time of loss of the equipment the applicant was not the supply noncommissioned officer (NCO) and he did not have custodial responsibility.  The applicant redeployed in May 2008 and he had not signed for and was not responsible for the lost equipment.  Staff Sergeant (SSG) C W____ was the Supply Sergeant during the time the equipment was lost (sometime between December 2006 and September 2008).  Second, the IO's findings and recommendations are based on the conclusion that the applicant failed to properly store the equipment that was received by leaving the equipment in an unsecured supply room common area.  There is no evidence whatsoever in the FLIPL to support this conclusion.  The IO references only a Memorandum for Record (MFR) by Mr. D____, the 307th Unit Administrator, and Sergeant First Class B-H____.  However, the MFR is not contained anywhere in the investigative file.  

		(4)  The recommendations are consistent with the findings, but the findings are not supported by the evidence.

		(5)  The Judge Advocate recommended that the approving authority disapprove the findings and recommendations contained in the FLIPL. 

	e.  On 26 April 2010, the Approving Authority approved the FLIPL and determined the applicant should be held liable for $3,044.70.

	f.  Headquarters, 7th PSYOP Group, memorandum, subject:  FLIPL (#WTXXXX-09-02), ($39,608.70), dated 2 June 2010, notified the applicant that he was being held financially liable for $1,522.35 for the loss of Government property.  He was given 30 days to submit a rebuttal.

	g.  On 29 June 2010, the applicant provided a rebuttal essentially stating that the investigation failed to establish that he was responsible for the lost property, it did not establish that he violated any duty of care, and it did not establish that his actions were the proximate cause.

3.  In the processing of his case, an advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4. The advisory official stated, in effect:

	a.  The IO did not send the notification letter informing the applicant that he was found financially liable which is required in Army Regulation 735-5, paragraph 13-35b.  [The correct reference is paragraph 13-32b. which requires the IO to notify the applicant by memorandum that he is recommending he be held financially liable for the loss of property and explaining his rights and giving him the opportunity to respond.  This must be done prior to the IO forwarding the investigation to the appointing authority.  There is no evidence this was done].

	b.  The 21 March 2010 legal review memorandum shows the investigation and findings were legally insufficient.

	c.  The IO did not provide sufficient evidence that the applicant was negligent or that his actions were the proximate cause of the loss.

	d.  The financial liability assessed against the applicant should be reversed and he should not be held liable in the amount of $1,522.35.

4.  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 concurred with the opinion recommendation.

5.  Army Regulation 735-5 (Policies and Procedures for Property Accountability), chapter 13, states that the Government may impose a finding of pecuniary liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage, or destruction of Government property.  
Negligence is defined as simple or gross, with simple negligence being the failure to act as a reasonable prudent person would have acted under similar circumstances.  Gross negligence is defined as an extreme departure from the course of action to be expected of a reasonable prudent person, all circumstances being considered, and accompanied by a reckless, deliberate or wanton disregard for the foreseeable consequences of the act.  Willful misconduct is defined as any intentionally wrongful or unlawful act dealing with the property concerned.  Direct responsibility is defined as the obligation of a person to ensure that all Government property for which he has receipted for is properly used and cared for and that proper custody and safekeeping is provided.  Command responsibility is the obligation of a commander to ensure that all Government property within his command is properly used and cared for, and that proper custody and safekeeping is provided.  Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss or damage would not have occurred.  It further provides at:

	a.  paragraph 13–5, time constraints for processing financial liability investigations of property loss.  "Initiate and process financial liability investigations of property loss within a specific number of days….[w]hen delayed beyond the below listed processing times, the person responsible for the delay will prepare a written statement explaining the reason for the delay and attach it to the FLIPL as an exhibit."  Subparagraph b states for the Army Reserve "under normal circumstances, do not exceed 240 calendar days total processing time."

	b.  paragraph 13-32, the financial liability officer will give any individual, against whom he or she makes a recommendation to assess financial liability, a chance to examine the FLIPL after the findings and recommendations have been recorded on the DD Form 200 and the opportunity to make a rebuttal statement in his or her own behalf.  A copy of the memorandum explaining the individual's rights will be attached to the FLIPL as an exhibit.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the change of command inventory conducted between June and August 2008 revealed missing property.  The applicant was assigned to the unit on 6 March 2006, reassigned effective 17 December 2006 to another unit for deployment, and reassigned back to the unit effective 8 September 2008.  He was not assigned to the unit at the time of the loss. 

2.  A legal review by the Judge Advocate for the 7th PSYOP Group found the FLIPL to be legally insufficient and recommended that it be disapproved by the approving authority.

3.  There is no evidence that the IO complied with Army Regulation 735-5, paragraph 13-32 by providing the applicant a chance to examine the FLIPL.  The applicant was provided the FLIPL by the approving authority after the IO's recommendations and findings were approved.

4.  The advisory opinion recommended that the financial liability assessed against the applicant should be reversed and he should not be held liable.

5.  In view of the available evidence and of the above recommendation the applicant should not be held liable for the loss of government property and he should be reimbursed the money withheld from his pay.

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.  showing he was not financially liable for the loss of property valued at $1,522.35, as indicated in FLIPL #WTXXXX-09-02, dated 27 October 2008; and

	b.  the Defense Finance and Accounting Service reimbursing him any amount of the $1,522.35 already collected from his pay.



      ___________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)                                         AR20080017728



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ABCMR Record of Proceedings (cont)                                         AR20100028029



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