IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110010058


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 relief of financial liability imposed against him on a
DD Form 200 (Financial Liability Investigation of Property Loss), #WDxxC0-x9-x2 (hereinafter called FLIPL), initiated on 6 July 2009.

2.  The applicant states:

* the FLIPL violated his due process rights under Army Regulation 735-5 (Policies and Procedures for Property Accountability)
* he was physically present during the loading of his hand receipt (HR) items, but he was later deemed non-deployable and he was not present when the items were off-loaded

3.  The applicant provides:

* a FLIPL packet
* voluminous emails
* a memorandum for record
* his Leave and Earnings Statements (LESs)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army Staff Sergeant (SSG)/E-6.  In 2009, he was assigned to the 121st Brigade Support Battalion (BSB), 4th Brigade Combat 


Team, 1st Armored Division, Fort Bliss, TX.  He served as the Medical Equipment Repair Sergeant and he was an HR holder for various unit properties.

2.  The 121st BSB was conducting training and preparing for deployment in support of Operation Iraqi Freedom.  The unit conducted field training in the fall of 2008, and deployed to the National Training Center (NTC), Fort Irwin, CA at the end of the year.  The unit deployed to Iraq in mid-2009.  The applicant did not deploy.

3.  When the unit arrived in Iraq, equipment shortages were discovered on or about 2 July 2009.  A FLIPL investigation was ordered and a captain (CPT)/O-3) was assigned as the investigating officer (IO).  The IO completed his investigation on or about 27 July 2009.  Insofar as the applicant's liability, the IO concluded that:

	a.  An Antenna Group, OE-254/GRC - one of four in the unit - was on the applicant's HR.  It was used during field training and during the unit's NTC rotation in January 2008.  Upon returning to Fort Bliss, a 100% equipment laydown and inventory was conducted and the company commander asserted all antenna groups were accounted for with no shortages other than some stakes [NOTE:  the FLIPL IO erroneously stated "Not every antenna group was inventoried"].  During pre-deployment activities, the applicant's hand receipted antenna group was loaded into a MILVAN (military-owned demountable container) and shipped to Iraq.  In Iraq, the applicant's hand receipted antenna group was determined to be missing.  The IO determined the applicant's statement he loaded the antenna group in the MILVAN at Fort Bliss was contradicted by the fact the item was missing in Iraq.  The IO attributed the loss to simple negligence by the applicant and held him liable.

	b.  Sixty-three M68 Close Combat Optic Red Dot Sights (Sight, Reflex, Collimator) were on the applicant's HR.  Six of these sights were determined to be missing during an inventory in Iraq.  The company commander, in a statement to the IO, stated the six sights were turned-in to RESET (repair, replace, recapitalize) in 2008 and never returned to the unit.  No paperwork could be found at Fort Bliss Directorate of Logistics (DOL) to substantiate that claim.  However, the applicant signed for the items on an HR on 23 April 2009, even though the commander knew they were not on-hand.  The IO questioned why the applicant would sign an HR for property that was not on-hand, and why the commander would permit him to do so.  The IO found this to be joint negligence on the part of the commander and the applicant, and held both accountable.

4.  After calculating equipment depreciation and the apportionment of financial liability, the FLIPL IO determined the applicant should be charged $800.77 for his role in the loss of Government property.

5.  The FLIPL was completed and forwarded for review and approval.  Administrative discrepancies were noted and the FLIPL was returned for further refinement and correction by a new IO, a major (MAJ)/O-4).  On or about 28 October 2009, the MAJ concurred with the CPT's initial determinations and returned the FLIPL to the approving authority who approved the findings and recommendation (with modification) on 8 December 2009.

6.  In the processing of this case, an advisory opinion was obtained from HQDA, Office of The Deputy Chief of Staff, G-4.  The advisory official recommended approval of the applicant's request for relief from financial liability stating:

* the applicant should not be held financially liable in the amount of $800.77
* although the applicant did not deploy, the unit failed to inventory and hand receipt the applicant's property to another individual who would be deployed to Iraq with the property
* the unit commander should not have required the applicant to sign for property that was not present (M68 Sights)
* the applicant exercised poor judgment in signing for missing property, but this act did not make him responsible for the loss

7.  The applicant was furnished a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 12 July 2011, the applicant concurred with the advisory opinion.

8.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes the basic policies and procedures in accounting for Army property and sets the requirement for formal property accounting within the Army.  It implements specific property accounting procedures; defines accountability and responsibility; identifies the categories of property and the accounting procedures to be used with each; and identifies the basic procedures for operating a property account.  The regulation also 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.  Army Regulation 735-5, chapter 13, details the FLIPL process and states 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.

9.  Army Regulation 735-5, chapter 13, states that a financial liability investigation of property loss documents the circumstances concerning the loss, damage, or destruction (LDD) of Government property and serves as, or supports, a voucher for adjusting the property from accountable records.  It also documents a charge of financial liability assessed against an individual or entity, or provides for the relief from financial liability.  Chapter 13 also states:

	a.  Financial liability investigations of property loss are initiated and processed within a specific number of days, following the discovery of the LDD of U.S. Government property. When 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 financial liability investigation of property loss as an exhibit.  Total processing time equals the difference in days between the date of discovering the discrepancy, block 3, DD Form 200, and the date the financial liability investigation of property loss is approved.  The time used to notify the individual of the financial liability officer’s recommendation and the approving authority’s decision to hold the respondent financially liable per paragraphs 13–34 and 13–42 are not included.  Subtract one date from the other, less the time used to notify the individual, to determine the total processing time.  For the Active Army, under normal circumstances, do not exceed
75 calendar days total processing time.  Commanders may adjust the time segments downward at their discretion.

	b.  The initiator of a financial liability investigation of property loss will normally be the HR holder or the accountable officer.  When the HR holder or the accountable officer is not available, the person with the most knowledge of the incident will serve as the initiator.

	c.  The approving authority is defined as an Army officer, or DA civilian employee authorized to appoint a financial liability officer and to approve financial liability investigations of property loss.  For Army garrisons, garrison commanders will be the approving authority for financial liability investigations of property loss arising within their command or under their supervision.

	d.  Before a person can be held financially liable, the facts must show that he/she, through negligence or willful misconduct, violated a particular duty involving the care of the property.  It also states, in effect, that before holding a person financially liable for a loss to the Government, the facts must clearly show 


that the person's conduct was the "proximate" cause of the loss.  That is, the person's acts or omissions were the cause that produced the loss and without which the loss would not have occurred.

10.  The FLIPL process is as follows.

   a.  The initiator of a FLIPL will normally be the HR holder or, on rare occasions, the Property Book Officer (PBO/Accountable Officer).  If neither is available, the person with the most knowledge of the circumstances will serve as initiator.  The initiator will prepare blocks 1 and 3-11 of DD Form 200 and forward it to the Accountable Officer (Property Book Officer).  When the DD Form 200 is prepared it will be attached to DA Form 7531 (Checklist and Tracking Document for Financial Liability Investigations of Property Loss) that will be used as a checklist and for tracking events as they occur.

   b.  The accountable officer will complete blocks 17a-f of the original DD Form 200 and make six copies for processing.  Property Management will review the FLIPL for accuracy, assign a document number, and attach a suspense cover sheet to the original for processing.

   c.  The appointing authority may:

		(1)  determine that there is no evidence of negligence.  If so, he or she will complete blocks 13b through 13h, placing a statement in block 13b recommending all persons be relieved of financial liability.  The DD Form 200 is then forwarded to the approving authority.

		(2)  determine that there is evidence of negligence based on information provided in block 9 and 10.  He or she may recommend liability without appointing an IO.

		(3)  appoint an IO when the FLIPL does not contain enough information to make a decision without further investigation by completing block 13c and entering their initials and the date, or direct an investigation according to Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).

   d.  The IO investigates the property loss to determine responsibility for the loss.  He/she will determine who to interview and obtain their statements.  The IO should consider interviewing the accountable officer, the primary HR holder and sub-HR holder, the user(s) of the property and their commanders and/or supervisors, and any witnesses.  Based on the facts and circumstances 


surrounding the loss, the IO will develop his/her findings.  Findings will be supported by evidence contained in either block 9 of DD Form 200, or by exhibits attached to the FLIPL.  When entering the findings, the IO will describe how the loss occurred and include:

* the total cost of the loss in block 15b
* the monthly basic pay of the individual being recommended for assessment of financial liability in block 15c

   e.  Upon completion of the investigation, the FLIPL will be returned to the appointing authority who will review the recommendations by the IO, ensure all requirements are met and make one of the following decisions:

* return FLIPL to the IO for further investigation
* concur with findings and recommendations, check “Approve” in block 13a, and then complete blocks 13b-13h of DD Form 200, forward
DD Form 200 to approving authority
* nonconcur with findings and recommendations, check “Disapprove” in block 13a, and then enter a statement in block 13b

   f.  The appointing authority then forwards the FLIPL to the approving authority.  When the IO recommends liability the approving authority will submit the FLIPL for legal review.  When legal review is completed, the approving authority can take the following actions:

* determine the investigation is incomplete and request further investigation
* adopt the recommendations of the IO and approve them by checking block 14a “Approved box” DD form 200 and completing blocks 14b through 14h
* make a decision contrary to the recommendations of the IO, either to relieve all concerned from financial liability or to asses financial liability against a new individual
* assess financial liability against one or more respondents by following guidelines outlined in Army Regulation 735-5


11.  There are time constraints for initiation of a FLIPL:

* active duty units have 75 calendar days for total processing; the FLIPL will be sent to the appointing authority not later than 15 calendar days after the date of discovering the discrepancy
* IOs will have up to 40 days to complete an investigation

12.  Army Regulation 735-5, 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.  The total amount of pecuniary liability for soldiers will be established as the equivalent of 1 month’s basic pay at the time of the loss, or the actual amount of the loss to the Government, whichever is the lesser amount.  Civilian employees’ maximum exposure is 1/12 of their annual salary.  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.

13.  The Consolidated Glossary for Army Regulation 735-5 defines negligence as simple or gross, with simple negligence being the failure to act as a reasonably 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 reasonably 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.  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.

14.  The glossary also defines responsibility.  Responsibility is the obligation of an individual to ensure Government property and funds entrusted to his or her possession, command, or supervision are properly used and cared for and that proper custody and safekeeping are provided.  There are five types of responsibility:

	a.  Command responsibility is the obligation of a commander to ensure all Government property within his or her command is properly used and cared for, and that proper custody and safekeeping of Government property are provided.  Command responsibility is inherent in command and cannot be delegated.  It is 


evidenced by assignment to a command position at any level and includes:
ensuring the security of all property of the command, whether in used or in storage. 

* observing subordinates to ensure their activities contribute to the proper custody, care, use, and safekeeping of all property within the command
* enforcing all security, safety, and accounting requirements
* when necessary, taking administrative or disciplinary measures

	b.  Supervisory responsibility is the obligation of a supervisor to ensure all Government property issued to, or used by, his or her subordinates is properly used and cared for, and that proper custody and safekeeping of the property are provided.  It is inherent in all supervisory positions and is not contingent upon signed receipts or responsibility statements.  It arises because of assignment to a specific position and includes:

* providing proper guidance and direction
* enforcing all security, safety, and accounting requirements
* maintaining a supervisory climate that will facilitate and ensure the proper care and use of Government property

	c.  Direct responsibility is the obligation of a person to ensure all Government property for which he or she has receipted, is properly used and cared for, and that proper custody and safekeeping are provided.  Direct responsibility results from assignment as an accountable officer, receipt of formal written delegation, or acceptance of the property on HR from an accountable officer.  Commanders and/or supervisors will determine and assign, in writing, the individuals who will have direct responsibility for property.

	d.  Custodial responsibility is the obligation of an individual for property in storage awaiting issue or turn-in to exercise reasonable and prudent actions to properly care for, and ensure proper custody and safekeeping of the property are provided.  Custodial responsibility results from assignment as a supply sergeant, supply custodian, supply clerk, or warehouse person who is rated by and answerable directly to the accountable officer or the individual having direct responsibility for the property.  Responsibilities include:

* ensuring the security of all property stored within the supply room and storage annexes belonging to the supply room or SSA is adequate
* observing subordinates to ensure their activities contribute to the proper custody, care, and safekeeping of all property within the supply room and storage annexes belonging to the supply room or SSA
* enforcing all security, safety, and accounting requirements
* when unable to enforce any of these, reporting the problem(s) to their immediate supervisor

	e.  Personal responsibility is the obligation of a person to exercise reasonable and prudent actions to properly use, care for, and safeguard all Government property in their possession.  It applies to all Government property issued for, acquired for, or converted to a person's exclusive use, with or without receipt.

15.  Department of the Army Pamphlet 710-2-1 (Inventory Management - Using Unit Supply System) provides manual procedures for requesting, receiving, accounting for, issuing, and turning in supplies.  It covers HR policies and procedures.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks relief from financial liability imposed against him by FLIPL #WDxxC0-x9-x2.

2.  The applicant signed an HR at Fort Bliss in April 2009 accepting responsibility for, among other items:

* one Antenna Group, OE-254/GRC

* 63 M68 Close Combat Optic Red Dot Sights (Sight, Reflex, Collimator)

The antenna group and 6 of the M68 sights were determined to be missing when the unit conducted inventories in Iraq on or about 2 July 2009.

3.  All four of the unit's antenna groups were accounted for in a post-NTC deployment inventory in January 2009.  Later when the unit prepared to deploy to Iraq, the applicant asserted he loaded his antenna group into a MILVAN bound for Iraq.

4.  The applicant signed his HR confirming accountability for 63 M68 sights, although the commander stated some of the sights had been turned-in to RESET and were never returned to the unit.  It appears, as the G-4 advisory opinion states, the applicant acceded to the demands of his commander and signed his HR knowing he did not have all of the 63 sights.


5.  Army Regulation 735-5 states that in order to assess liability, the approving authority must find the person to be held liable had a duty/responsibility to take care of the property; the person failed to carry-out that duty (negligence); and the person's failure led to the loss (proximate cause).

6.  The G-4 advisory opinion states the unit did not exercise good supply discipline and the applicant should be relieved of financial liability.

   a.  When the applicant was determined to be non-deployable, the unit should have relieved him of accountability by assigning his HR to another noncommissioned officer.  This did not occur and violated Department of the Army Pamphlet 710-2-1, paragraph 5-3 (Hand Receipt Procedures), paragraph 9-3 (Change of HR Holder Inventory).

	b.  The unit commander stated the missing M68 sights were turned-in to DOL for RESET, but could produce no paperwork to support this statement.  If the applicant never had control of the 6 missing sights, he could not be held liable for having lost them.

7.  In view of the foregoing, the applicant is entitled to the relief as outlined below.

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 held financially liable by FLIPL #WDxxC0-x9-x2, initiated on 6 July 2009, and


	b.  refunding to him any monies already collected from him as a result of the 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)                                         AR20110010058



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ABCMR Record of Proceedings (cont)                                         AR20110010058



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