IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20110023966 


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 correction of his military records to show he is not liable for the loss of government property in Financial Liability Investigation of Property Loss (FLIPL) Number WAPBAA-xx-xx-xxx in the amount of $2,810.79.

2.  The applicant states no action/inaction on his part led to the proximate cause of the loss of an MBITR radio.  He hand-receipted the radio to an individual who allowed another individual to use the radio and that individual lost it.  He neither directed either individual to use the radio nor was he present when the radio was lost.  During the course of the investigation there were three different investigating officers (IO) appointed before liability was assessed against him.  He believes the FLIPL was directed/tailored to "find" a way to hold him liable regardless of the facts.

3.  The applicant provides 15 Exhibits with a Table of Contents.

CONSIDERATION OF EVIDENCE:

1.  He is currently a major (MAJ) serving in the Regular Army.  At the time the FLIPL was initiated he was commanding the 38th Engineer Company.

2.  On 1 April 2010, Headquarters, 4th Stryker Brigade Combat Team, 
2nd Infantry Division, Camp Liberty, Iraq, appointed MAJ P______, assigned to Headquarters and Headquarters Company, as the IO pursuant to Army Regulation (AR) 15-6 for a missing MBITR radio that was discovered missing during a change-of-command inventory on 25 March 2010 in Iraq.  He was directed to investigate the circumstances of the loss, whether or not there was negligence, and whether that negligence was the proximate cause of the loss.

3.  On 6 April 2010, Major P______ commenced his investigation.  On 28 May 2010, he submitted the results of his AR 15-6 investigation.  He determined the following facts.

	a.  In October of 2009, Sergeant (SGT) J______, the company communications noncommissioned officer (NCO), signed for eight MBITR radios including the one with serial number 52666.  He produced a hand receipt showing that it was signed for by SGT M_____.

	b.  On or about 20 March SGT J______ was notified the MBITR radio was missing.  Captain (CPT) W___ stated the radio was found to be missing during change of command inventories at the end of February.  First Lieutenant (1LT) P______ also stated the radio was discovered missing during the change of command inventories.  The applicant directed a search for the radio; however, the search did not result in it being found.

	c.  SGT M____ stated he had signed for the MBITR radio SN 52666 and it was kept in the locked communications box in the platoon area.  He stated that several NCO's had a key to the box.

	d.  Four NCO's stated they had a key to the communications box but had no knowledge how the radio went missing.  Two of the NCO's stated they only remembered seven radios.

	e.  SGT M_____ stated that 1LT P_____ needed the radio to monitor the platoon and that he used it.  1LT P_____ stated that he had used the radio on 
9 December 2009 for a mission and that it was the last time he saw the radio.  He stated he accounted for the radio and returned it to the communications box.

	f.  1LT P_____ stated he recalled the radio being on his desk in the platoon leader/sergeant office for an undetermined amount of time.  He believed the owner had taken it back and that there was accountability of the radio.  Prior to going on leave at the end of January, he turned in all sensitive items to the company or left them on his desk for the change of command inventory.

4.  As a result of his investigation, MAJ P______ found:

	a.  Based on the statements and the provided inventory sheets the MBITR radio was not inventoried since deployment until the pre-change of command inventory.  The radio was accounted for by 1LT P_____ in December and was discovered missing during the February/March pre-change of command inventories.

	b.  The radio was not hand receipted down to the lowest user nor was it signed in/out of the communications box when it was used.  However, it did appear that the platoon did take steps to safeguard the equipment by keeping it in a locked box in the platoon area.  However, several personnel had a key to that box.

	c.  A search for the radio was conducted with negative results.

5.  At the conclusion of his investigation MAJ P______ recommended that:

	a.  The radio be placed on the sensitive item hand receipt due to the nature of the fill.

	b.  The radios should be placed under double lock and key.  Key access should be restricted to one or two personnel and it should be signed for when checked out.

	c.  Although simple steps were taken to safeguard the radio, it was kept in a locked box in the platoon area; therefore, a lack of standards and accountability resulted in the radio becoming lost and unaccounted for.  It was recommended that both 1LT P_____ and SGT M______ be found liable for the loss of the radio.  SGT M_____ signed for the radio but he did not take the full proper steps to ensure that it was safeguarded.  1LT P_____ was the last to admit to having control of the radio.

	d.  The radio should be depreciated 25 percent to $6,046.50.  1LT P_____ should be charged $3,521.90 and SGT M_____ should be charged $2,524.60 to recover the depreciated cost of the MBITR radio.

6.  On 2 June 2010, the Brigade Judge Advocate reviewed the AR 15-6 investigation and determined the findings were consistent with the evidence and the recommendations were consistent with the findings.

7.  On 11 June 2010, a FLIPL was initiated for a missing MBITR radio at the cost of $8,062.00.  The date of discovery of the loss is shown as 1 April 2010.

8.  On 29 June 2010, 2nd Battalion, 23rd Infantry Regiment, 4th Brigade, 2nd Infantry Division, Camp Taji, Iraq, appointed CPT F____, assigned to Headquarters and Headquarters Company, as a second IO pursuant to
AR 735-5, paragraph 13-24, to conduct an investigation of property loss.  His task in conducting an investigation of property loss was to determine whether someone was negligent, and if that negligence was the cause of the loss, whether it is appropriate to recommend assessment of financial liability against that individual.

9.  On 30 June 2010, based on examining the available evidence, the IO was prepared to offer recommendations for financial liability, supported by the facts of the situation.

	a.  During change of command inventories it was discovered that an MBITR radio was missing.  A search of the company area and possible locations was conducted without finding the radio.

	b.  Based on the statements, the AR 15-6 investigation, and the inventory sheets the MBITR radio was not inventoried since deployment until the pre-change of command inventory.

	c.  The radio was accounted for by 1LT P_____ in December 2009 and was discovered missing during the February/March 2010 pre-change of command inventories.  The radio was not hand receipted down to the lowest user nor was it signed in/out of the communications box when it was used.  Although it was in a locked box in the platoon area several personnel had a key to the box.

	d.  A lack of standards and accountability resulted in the radio becoming lost and unaccounted for.  The IO agreed with the AR 15-6 IO's recommendation that 1LT P_____ and SGT M_____ be found liable for the loss of the radio.  SGT M_____ was signed for the radio but did not take the full proper steps to ensure that it was safeguarded.  1LT P_____ was the last to admit to having control of the radio.

10.  On 2 July 2010, CPT F____ notified 1LT P_____ and SGT M_____ they were being recommended for assessment of financial liability to the U.S. Government for the loss of government property.  Both individuals submitted rebuttals to the findings of the AR 15-6 investigation and FLIPL.

11.  On 23 September 2010,  CPT F____, the IO, submitted a reconsideration of his findings for the FLIPL.  

	a.  Upon examining the evidence presented in the submitted rebuttal memos, the IO recommended that the applicant also be found liable for the loss of the radio.

	b.  The IO found the company commander (at the time) should also be found liable.  His liability is suggested in the fact that he openly admitted in his statement that the only proof of inventory by him for the item was January 2009 when signing it down to SGT J______.  As the primary hand receipt holder he should know that his responsibility over something as critical and sensitive in the nature as an MBITR should be inventoried every month regardless of whether or not it has shown up on his cyclic inventory.  The fact that he had no proof of inventory other than a hand receipt in January 2009 and October 2009 shows that he failed as a company commander to properly account for his equipment until he was forced to in a change of command inventory.

	c.  The reconsideration recommendation was that the applicant, 1LT P_____, and SGT M_____ be found liable for the loss of the radio.  The IO could not formally recommend liability for the applicant because he was senior to the IO.  The IO recommended that a new IO senior to the applicant be assigned to the investigation.

12.  On 28 September 2010, 2nd Battalion, 23rd Infantry Regiment, 4th Brigade, 2nd Infantry Division, Joint Base Lewis-McChord, WA, appointed MAJ V_______, assigned to 2nd Battalion, 23rd Infantry, as a third IO pursuant to
AR 735-5, paragraph 13-24, to conduct an investigation of property loss.  His task in conducting an investigation of property loss was to determine whether someone was negligent, and if that negligence was the cause of the loss, whether it is appropriate to recommend assessment of financial liability against that individual.

13.  On 28 September 2010, MAJ V_______ stated that upon examining the available evidence, the AR 15-6 investigation, the submitted rebuttal memos, and the original IO's findings and recommendations and Memorandum of Reconsideration he was prepared to offer a recommendation for financial liability, supported by the facts of the situation.  

	a.  During change of command inventories it was discovered that an MBITR radio was missing.  A search of the company area and possible locations was conducted without finding the radio.

	b.  Upon examining the evidence presented in the submitted rebuttal memos and memorandum of reconsideration it was recommended the applicant, 
1LT P_____, and SGT M______ be found liable for the loss of the radio.

14.  On 18 January 2011, MAJ V______ notified the applicant he was being recommended for assessment of financial liability to the U.S. Government for the loss of government property in the amount of $2,810.79.
15.  On 31 January 2011, the applicant submitted a rebuttal statement.

	a.  He was the company commander and had signed the MBITR radio to the company communications NCO in October 2009.  The MBITR was signed to SGT M_____, the 2nd Platoon Communications NCO in October 2009.

	b.  Each MBITR radio was posted on the company property book and 
10 percent inventories were conducted every month, as required; however, the MBITR radios never "came up" on the 10 percent inventory list between December 2009 and March 2010.  Between September 2009 and March 2010, MBITR radios were not posted on the monthly sensitive items inventory report, and their absence was not noticed by himself or anyone else, including the property book officer (PBO).  Each month the sensitive item list was meticulously scrubbed against the previous month’s list to uncover any discrepancies in sensitive item quantities and serial number.  Since the MBITR radios were never posted on the sensitive items list to begin with, their absence from the list went unnoticed and subsequently, they were not inventoried monthly between December 2009 and March 2010.

	c.  The MBITR radios were kept under lock and key; however, the missing MBITR was generally not in use.  On 9 December 2009, 1LT P_____ used the missing MBITR radio on a mission and upon his return apparently placed the radio on his desk.  After some unknown amount of time the MBITR radio was removed from 1LT P_____'s desk by an unknown person.  The other MBITR radios were all properly accounted for.

	d.  Before a person can be held financially liable, the facts must show that he or she, through negligence or willful misconduct, violated a particular duty involving the care of the property.  He believed he acted in a reasonably prudent manner under the circumstances by properly signing out the radios to his communications NCO for use.  He conducted property book inventories properly and pursuant to the guidelines, item lists, and information provided to him by the PBO.  The radios were never included on the sensitive item list by the PBO.  

	e.  In order for him to be liable, whatever actions he took, or did not take, must have been the actual cause of the Government's loss.  Although he failed to conduct monthly inventories of the MBITR radios, his actions were not the proximate cause of the loss.  His inspection would not have prevented the loss; he would have only become aware of the missing radio within a month of the loss.  The missing radio was not in his physical possession at the time of loss, he had supervised the use of the radios for months prior to the loss without incident, and he had ensured that members of his command were aware of proper procedures regarding the use and accountability of the radios.  Consequently, his actions or inactions were not the proximate cause of the MBITR radio.

	f.  It took approximately 9 months from when the AR 15-6 investigation was initiated until he was notified of his financial liability assessment for the missing MBITR radio.  This was significantly longer than the ideal 75 day process described in the regulation and there were no statements explaining the delay.

16.  On 20 April 2011, the Brigade Judge Advocate reviewed the FLIPL 
and determined the evidence supports the findings that SGT M_____, 
1LT P_____, and the applicant be held liable for the lost MBITR.  The evidence supports the findings that all three Soldiers were negligent, and that their negligence was the proximate cause of the loss of the MBITR.  

17.  A memorandum, dated 27 April 2011, from Headquarters, 4th Brigade, 
2nd Infantry Division, Joint Base Lewis-McChord, WA stated FLIPL WAPBAA-xx-xx-xxx was 307 days past the maximum allowable processing time prescribed by the regulation.  The extenuating circumstance preventing the FLIPL’s completion within the 75-day time frame was given as:  the investigation was misplaced during redeployment.  

18.  On 10 May 2011, the FLIPL was approved by the appointing authority to hold the applicant, SGT M_____, and 1LT P_____ financially liable.  The applicant's amount was $2,810.79.

19.  Three undated letters notified SGT M_____, 1LT P_____, and the applicant an approved charge of liability had been assessed against them by the U.S. Government.

20.  The applicant submitted a copy of his memorandum, dated 19 September 2011, to Commander, I Corps and Joint Base Lewis-McChord, WA.  He requested reconsideration of the approved charge of liability based on legal error and violation of his due process rights.  He also requested a hearing before the appellate authority.  He indicates in a note written on this memorandum that he never received a response to his request.

21.  In the processing of this case, an advisory opinion, dated 8 June 2012, was provided by the Office of the Deputy Chief of Staff, G-4.  The applicant was provided a copy of this opinion; however, he has not responded.  

	a.  G-4 recommended the financial liability assessed be reversed; reimbursement of $2,810.79, or all monies deducted from his pay as a result of this FLIPL; and correction of his records.
	b.  The applicant was not found to be at fault or financially liable by the AR 15-6 IO.  The AR 15-6 IO, MAJ P______, recommended financial liability against the subhand receipt holder and the individual to whom he loaned the equipment to for a mission.  The findings of the AR 15-6 IO went before a legal review and the findings were consistent with the evidence, and the recommendation consistent with the findings.

	c.  The applicant properly hand receipted his equipment.  The subhand receipt holder loaned the equipment to another platoon and it was not returned.

	d.  The IO, MAJ V______, assigned on 28 September 2010, did not follow guidance in accordance with paragraph 13-29 of AR 735-5.  The IO is required to conduct a thorough investigation.  He found the applicant financially liable without conducting the required investigation.  A legal review was not obtained to determine if his findings were legally sufficient.

22.  AR 735-5 (Policies and Procedures for Property Accountability) provides basic policies and procedures for accounting for U.S. Army property and accounting for lost, damaged, or destroyed (LDD) U.S. Army property.

	a.  Paragraph 13–6 (Time constraints for processing financial liability investigations of property loss) states that under normal circumstances the initiation and processing of financial liability investigation of property loss should not exceed 75 calendar days following the discovery of the loss of U.S. Government property.  When delayed beyond the 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.

	b.  Paragraph 13–25a (Use of an AR 15–6 investigation) states there are four situations warranting an investigation performed per AR 15–6 in lieu of a financial liability investigation of property loss conducted under this regulation.  These situations occur when directed by:

* other regulatory guidance
* a commander
* a financial liability investigation of property loss approving or 
 appointing authority per AR 15–6, paragraph 2–1a(2)
* the loss or destruction involves a controlled item

	c.  Paragraph 13-27b (Financial liability officer qualifications) states only those individuals who are senior to individual(s) subject to potential financial liability are to be appointed as financial liability officer.  Senior by time-in-grade is acceptable.  If during the investigation the financial liability officer discovers that completion of the investigation will require him or her to examine the conduct or performance of duty of someone senior, or may result in a finding and recommendation adverse to a person senior to him or her, the financial liability officer will report that fact to the approving authority. The approving authority will review the findings, and either excuse the financial liability officer and designate another person senior to the individual concerned, or direct the investigation to continue if military exigencies make the change impractical.

	d.  Paragraph 13-29 (Financial liability officer's responsibilities) states a financial liability officer’s responsibility is to determine the cause and value of the LDD of Government property listed on the financial liability investigation of property loss, and to determine if assessment of financial liability is warranted. That determination must be determined from the facts developed during a thorough and impartial investigation.  However, before beginning the investigation the financial liability officer must have an understanding of the terms "responsibility, culpability, proximate cause, and loss"; each term impacts upon a determination of financial liability.  Individuals may be held financially liable for the LDD of Government property if they were negligent or have committed willful misconduct, and their negligence or willful misconduct is the proximate cause of that LDD.

	e.  Paragraph 13-29c (Proximate cause) states 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 LDD.  That is, the person’s acts or omissions were the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the LDD, and without which the LDD would not have occurred.

DISCUSSION AND CONCLUSIONS:

1.  CPT F____ stated the fact that the applicant had no proof of inventory other than a hand receipt in January 2009 and October 2009 showed he failed as a company commander to properly account for his equipment until he was forced to in a change of command inventory.  However, the radio was accounted for by 1LT P_____ in December 2009.  While a proper inventory may have resulted in discovery that the radio was missing sooner, perhaps in January 2010, it would not have prevented actual loss of the radio.

2.  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 LDD.  That is, the person’s acts or omissions were the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the LDD, and without which the LDD would not have occurred.  The applicant was not in possession of the MBITR radio.  A monthly inventory would have discovered that the radio was missing earlier but it would not have prevented the loss by 
LT P______ or the subhand receipt holder.  Therefore, the applicant is not the proximate cause of the loss of the MBITR radio.

3.  When CPT F____ discovered that completion of his investigation could result in a finding and recommendation adverse to the applicant, who was senior to him, he should have been excused prior to completion of the investigation and another IO should have been designated.

4.  Because the MBITR radio was a controlled item an investigation performed per AR 15–6 in lieu of a financial liability investigation was warranted.

5.  The date of discovery of loss was 1 April 2010.  The AR 15-6 investigation was initiated on 6 April 2010 and was concluded on 28 May 2010.  On 2 June 2010, the Brigade Judge Advocate reviewed the AR 15-6 investigation and determined the findings were consistent with the evidence and the recommendations were consistent with the findings.  This was well within the 75 calendar days required by the regulation.  This investigation did not find the applicant liable for the loss of the MBITR radio.

6.  For unknown reasons two additional investigations were initiated on 11 June 2010 and 28 September 2010.  There was also a reconsideration of the 11 June 2010 investigation completed on 30 June 2010.  The applicant was then notified he was being recommended for assessment of financial liability on 18 January 2011.  This greatly exceeds the 75 calendar day processing requirement provided in the regulation.  

7.  The AR 15-6 investigation, conducted by MAJ P_______, found the applicant was not at fault or financially liable for the loss of the MBITR.  The findings went before a legal review and the findings were consistent with the evidence, and the recommendation was consistent with the findings.

8.  Based on the properly-conducted AR 15-6 investigation and the opinion provided by Office of the Deputy Chief of Staff, G-4 it would be appropriate to correct the applicant's records to show he was not found liable and is entitled to correction to his records and reimbursement of all monies collected as a result.





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 found not to be financially liable for the $2,810.79, as indicated in FLIPL WAPBAA-xx-xx-xxx; and

	b.  reimbursing him any monies already collected from his pay as a result of this records correction.




      _______ _   __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)                                         AR20110023966



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ABCMR Record of Proceedings (cont)                                         AR20110023966



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