IN THE CASE OF:	  

		BOARD DATE:  15 November 2012

		DOCKET NUMBER:  AR20120002976 


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 WJTVJJ 2-x-xx-xxx in the amount of $2,456.01.

2.  The applicant states this FLIPL was initiated against him following his submission of a Congressional inquiry into the toxic climate with 2nd Battalion, 5th Infantry (2-5 IN) and the willingness of the command group to cover up any and all mistakes they made.  He submitted a Congressional inquiry on               24 September 2010 and he was relieved of his duties as Medical Platoon Leader on 10 October 2010.  The company commander, Captain (CPT) H__________, sent the Mortar Platoon across the street to a construction site of a new building with instructions to search the area for the missing items.  When they reported the items were not found, the company commander told them to go back and search the area again, indicating they "should be able to find them there."

3.  He states there was extreme bias against him from the Battalion Executive Officer (XO), Major (MAJ) A______, who ultimately conducted the FLIPL investigation following the recommended findings of the first FLIPL investigating officer assigned, CPT B___.  CPT B___ had recommended that CPT H__________ be held financially accountable.  However, since CPT B___'s date of rank was later than CPT H__________, MAJ A_______ was appointed FLIPL officer.  MAJ A______ found no Infantry Branch personnel financially liable, only those personnel assigned to the Medical Platoon, Headquarters and Headquarters Company (HHC), 2nd Battalion, 5th Infantry (2-5 IN).

4.  He states a 100 percent inventory was conducted by Sergeant First Class (SFC) M_____ on 23, 24, and 25 June 2010.  Accountability was confirmed and reported to the Battalion XO.  The inventory on 25 June 2010 was conducted with Second Lieutenant (2LT) S________ because other sections in HHC could not account for their equipment.  A 100 percent accountability was confirmed and given to the HHC XO and 2LT S________.

5.  After the completion of each inventory, the sensitive items were placed into the "Tuff Box" and the "Tuff Box" was locked in the wall locker in the Battalion Aid Station (BAS).  The BAS and the outer door to Building A404 were locked at the end of the duty day.

6.  On 28 June 2010, at approximately 0559 the outer door to Building A404 and the door to the BAS were found to be unsecured by Private First Class (PFC) W_____.  At 1045, Staff Sergeant (SSG) M_______ and 2LT S________ began another 100 percent inventory of the medical platoon's sensitive items.  SSG M_______ was unable to confirm the accountability of one SKL (Simple Key Loader) and one DAGR (Defense Advance GPS Receiver).  

7.  The Medical Platoon's storage of sensitive items was conducted in accordance with the guidance received from the company commander.  They placed the "Tuff Box" into a locked wall locker as other sections within HHC had done in following the command guidance they were given.  All sections in HHC, including the medical platoon, ensured that the office in which these wall lockers were used were secured and locked at the end of the duty day.  All of the sections in HHC, including the medical platoon, also ensured the buildings where their offices were located were secured at the end of the duty day.  

8.  The medical platoon had the proper procedures in place to ensure the security of the assigned sensitive equipment.  This system worked until someone took it upon themselves to commit a criminal offense.  The facts show at some point from the close of business on 25 June 2010 through 0559 on 28 June 2010 that both Building A404 and the BAS were opened by person(s) unknown.

9.  The applicant provides an index with 10 enclosures with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a CPT serving in the U.S. Army Reserve (USAR) on active duty.  At the time the FLIPL was initiated, he was a first lieutenant (1LT) assigned as the Medical Operations Officer, Medical Battalion, HHC, 2-5 IN.

2.  On 29 June 2010, Lieutenant Colonel (LTC) F_______ was appointed as the Army Regulation (AR) 15-6 investigating officer (IO) for two missing sensitive items from the Medical Platoon, HHC 2-5 IN: one SKL and one DAGR.  He conducted a thorough investigation of the circumstances surrounding the property loss and possible procedural issues with COMSEC (communication security) storage and maintenance.  

3.  On 30 June 2010, a DD Form 200 (Financial Liability Investigation of Property Loss) was initiated for a missing DAGR and SKL.

4.  On 4 August 2010, LTC F_______  submitted the results of his AR 15-6 investigation.  He determined the following facts:

	a.  On 22 June 2010, the 2-5 IN redeployed from field training and conducted preliminary recovery and accountability tasks in accordance and with unit standing operating procedures (SOP).  The medical platoon found no discrepancies and reported that all sensitive items were present.  PFC J______ attempted to zeroize his SKL by taking the CIK (crypto-ignition key) to the motor pool where 2-5 IN's S6 Section stored its COMSEC.  SSG S____ sent 
PFC J______ back to his unit with instructions on how to zeroize his SKL and noted that he could not zeroize the SKL without the CIK and SKI together.  The PFC never returned to the motor pool.  The SKL and DAGR for the Medical Platoon were then stored in the platoon's "Tuff Box" in the BAS.  The "Tuff Box" did not have a lock and was often stored in the open aid station as noted by numerous personnel from the medical platoon.  SSG V____, the sensitive items hand receipt holder, stated that he normally secured the equipment in a locked wall locker and stored the key in the platoon key box in an adjacent room.

	b.  On 24 June 2010, SFC M_____, medical platoon sergeant, completed a second 100 percent inventory of sensitive items and reported to 1LT M_____, HHC XO, the platoon had accountability of all platoon sensitive items.  The sensitive items continued to be stored in the platoon's "Tuff Box" in the BAS.

	c.  On 25 June 2010, SFC M_____ completed a third directed 100 percent inventory of his platoon's sensitive items and confirms positive accountability of all unit equipment to 1LT M____.  The sensitive items, included the missing SKL and DAGR, continued to be stored in the platoon's "Tuff Box" and were left unsecure in the BAS.  As acting first sergeant (1SG) SFC M_____, never returned to the aid station to secure the equipment.  SSG V____, the hand receipt holder, only verified that the wall locker was locked, but failed to ensure the footlocker, without lock, was actually in the wall locker.  SSG M_______, medical platoon treatment noncommissioned officer in charge (NCOIC), stated he personally ensured that all doors, the common entry door and the aid station door, were secured before he left for the weekend.

	d.  On 28 June 2010, at 0559, PFC W_____ entered the BAS through an unlocked common entry door and began unit sick call procedures.  At 1045,
SSG M_______ entered the BAS with 1LT S________, unit inventory officer, to conduct a further directed 100 percent sensitive items inventory.  SSG M_______ was unable to confirm accountability of one SKL and one DAGR.  SSG M_______ explained to 1LT S________ that he believed the items may be in the motor pool as part of the unit’s command maintenance.  SSG M_______ called SSG V____, who stated the SKL and DAGR should be in the "Tuff Box."  After taking several hours to search the items’ whereabouts, SSG M_______ reported the items missing to his platoon sergeant, SFC M_____, and his platoon leader, the applicant, at around 1400.  The applicant notified the HHC Commander, CPT H__________ and 1LT M____, HHC, XO at approximately 1430.

5.  As a result of his investigation, LTC F_______ found:

	a.  The SKL and the DAGR were missing due to improper storage, which was a contributing factor to their eventual theft.

	b.  The Medical Platoon/2-5 IN lacked an understanding of command supply discipline and routinely left sensitive items unsecure as to easily allow access to the property by multiple members of the platoon.

	c.  The leaders within the medical platoon routinely ignored correctable storage deficiencies to include the time period of 22 - 28 June.  This was supported by the statements of numerous Soldiers within the medical platoon.

	d.  The wall locker that normally houses the platoon's "Tuff Box" and the key box which had the key to the wall locker and was kept in an adjacent room were both free of tampering.

	e.  The "Tuff Box" that contained the medical platoon's sensitive items was left unsecure on the afternoon of 25 June in an open area known to all the medical platoon and possibly personnel from other platoons and companies.

	f.  The SKL and DAGR were stolen and SSG V____, the sensitive items hand receipt holder, did not personally ensure the appropriate security of his property.  The applicant and SFC M_____ did not correct an existing and known security deficiency and in essence created an atmosphere of indifference as it pertained to the security of platoon sensitive items.

	g.  The battalion had adequate COMSEC security procedures and SSG S____, the S6 COMSEC Manager, had every reason to believe that the missing SKL was properly zeroized and that the destruction documents would be submitted to the S6 Section not later than 31 June.

	h.  SSG S____ did in the case of HHC improperly hand receipt COMSEC; as he hand receipted COMSEC to individual sections within the company vice just one hand receipt holder for HHC.

	i.  Despite proper instructions from the S6 COMSEC Manager, the Medical Platoon failed to properly zeroize and complete the required destruction documentation prior to their SKL being stolen.  Improper supervision by the applicant and SFC M_____ as well as a lack of knowledge by PFC J______ on established unit COMSEC procedures as highlighted in the unit SOP were the proximate causes of the COMSEC violation.  The CIK associated with the stolen SKL was not in the SKL and consequently was not stolen.

	j.  The medical platoon had developed some extremely bad habits that may have been pervasive throughout the entire company.  The platoon performed three specific checks for SKLs and DAGRs and four 100 percent inventories because the company could not gain accountability of SKLs and DAGRs for four days after returning from the field on 22 June 2010.  

	k.  At one time the company was missing a combination of four SKLs and DAGRs and subsequently one SKL and one DAGR from platoons other than the Medical Platoon.  Whether coincidental or just bad luck that was the exact property that was stolen from the medical platoon.

	l.  In all cases hand receipt holders were allowed to send emails to the accountability officer with serial numbers and it was through these emails checked against the property book that 2LT S________ attempted to gain accountability of equipment.  This method of accountability on the part of 2LT S________ was a demonstration of gross negligence and could be directly responsible for HHC having to inventory its property four times over a period of four days.   The situation is further compounded by the fact the HHC Commander, CPT H__________, authorized this method of accountability through verbal conversation with 2LT S________.  Each time HHC required a 100 percent sensitive items check from the medical platoon a different noncommissioned officer gained access to the unsecured tuff box and provided the report and at no time did anyone say, "why is this equipment unsecure."  

	m.  Equal responsibility for this loss by the applicant, SFC M_____, and 
SSG V____.

	n.  Equal responsibility for the COMSEC violation by the applicant,
SFC M_____, and PFC J______.

6.  At the conclusion of his investigation LTC F_______ recommended:

	a.  HHC/2-5 IN conduct a thorough review of its sensitive item storage procedures and that sensitive items currently stored using the discretion of its hand receipt holders be formalized by creating a unit sensitive item storage plan.

	b.  Battalion-run COMSEC training for HHC/2-5 IN and specifically the medical platoon.

	c.  The entire Medical Platoon receive training on command supply discipline and proper storage of sensitive equipment, key control, and leader responsibility.

	d.  The applicant, SFC M_____, and SSG V____ be referred to the chain of command for appropriate action which should include, but not limited to, administrative punishment and possible relief for gross negligence and complacency.

	e.  The applicant, SFC M_____, and SSG V____ share liability for the loss of one SKL and one DAGR.

	f.  The HHC Commander, CPT H__________, be referred to the chain of command for appropriate action which should include, but not limited to, administrative punishment and possible relief for gross negligence.  Although his actions did not directly contribute to the loss of the SKL and DAGR, his authorization of blatant violations of sensitive item accountability procedures should not be ignored.  

	g.  2LT S________ should receive training on appropriate accountability procedures and should be reprimanded for his role in improperly accounting for unit sensitive items.

7.  On 8 August 2010, the Brigade Judge Advocate reviewed the AR 15-6 investigation regarding the lost SKL and DAGR, including the findings and recommendations submitted by the IO, LTC F_______.  He concluded the findings and recommendations met with legal requirements and that no substantive errors exist within the investigation.  He found the findings were supported by the evidence in the investigation, were factual in nature, and the recommendations flowed logically from the findings.

8.  A Memorandum for Record, dated 2 September 2010, was submitted by 1SG A________, HHC 1SG.  The 1SG stated the commanding officer of HHC 2-5 IN, directed certain accountable/sensitive items be hand receipted to the respective platoons and sections.  There was no written policy, but only the directive given by the commander that platoon equipment and storage of such equipment between uses would be the responsibility of each section and specialty platoon.  This was against the advice of the company 1SG to keep everything in the arms room vault in order to keep all of the equipment centrally located for accountability.

9.  On 23 September 2010, the applicant submitted a request for reconsideration and statement of rebuttal to the findings and recommendations concerning the loss of one SKL and one DAGR as follows:

	a.  Prior to the redeployment to Fort Bliss, all sensitive items including, but not limited to, SKLs and DAGRs were maintained in the arms room vault by the armorer for HHC.  Following redeployment to Fort Bliss, the HHC commander instructed each section within HHC that their section would now be responsible  for the security and accountability of assigned sensitive items including radios, SKLs, and DAGRs.  Only NVGs (night vision goggles) and weapons for each section would be stored in the arms room.

	b.  When SGT V____ attempted to turn in the medical platoon's DAGRs and SKL to the armorer, he was told that it was now each section's responsibility to store and secure their sensitive items.  The HHC commander ordered all sensitive items be put away that day without the HHC XO conducting an inspection of all sensitive items that had been laid out for the XO's inspection.  The HHC commander instructed all sections to store and secure their gear and head home.  The inspection would be done the next day.  The sensitive items of the Medical Platoon were placed in a "Tuff Box" and then locked in a wall locker in the BAS.  The BAS was locked and the outer door to Building A404 was locked.

	c.  On 24 June 2010, SFC M_____ completed another 100 percent inventory of the medical platoon's sensitive items and reported to the HHC XO that the platoon had 100 percent accountability.  The sensitive items were then placed into the "Tuff Box" which was then placed into the locked wall locker.  At the completion of the duty day the BAS was locked and then the outer door to Building A404 was locked.

	d.  On 25 June 2010, SFC M_____ conducted another 100 percent inventory with 2LT S________ as other sections in HHC could not account for their equipment.  Again, 100 percent accountability was confirmed and given to the HHC XO and 2LT S________.  After the completion of the inventory, the sensitive items were placed into the "Tuff Box."  Again the "Tuff Box" was locked in the wall locker in the BAS.  The BAS and the outer door to  Building A404 were locked at the end of the day.

	e.  On 28 June 2010, at approximately 0559 the outer door to Building A404 and the door to the BAS were found to be unsecured.  

	f.  The IO failed to establish how he was responsible for this missing equipment.  The facts of this case do not support any finding of negligence on his part.  He is responsible for various equipment signed for by members of his platoon including the missing SKL and DAGR.  However, the double lock rule was in place in order to secure sensitive equipment consistent with Army policy and HHC direction.  The facts in this case indicate the stolen equipment was secured and locked in an appropriate container.  In order to establish negligence, his acts or omissions must be shown to be unreasonable using the "reasonable and prudent man" standard.  The two-lock rule meets the reasonable man standard which was carried out by his platoon.  His actions and those of his subordinates were not negligent.

10.  An initial U.S. Army Criminal Investigative Command (CID) report, dated       6 July 2010, concerning the theft of the SKL and DAGR did not address whether there was evidence that the BAS or Building A404 were broken into.  The final CID report was not available for review.

11.  On 7 October 2010, MAJ A______ was appointed the IO to conduct an investigation of property loss for HHC FLIPL WJTVJJ 2-x-xx-xxx.  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 was appropriate to recommend assessment of financial liability against that individual.

12.  A continuation sheet for Block 15d (Recommended Financial Liability) of the DD Form 200 indicates the applicant's financial charge as $2456.01.  

13.  On 1 November 2010, MAJ A______ submitted his findings and recommendations in a memorandum, continuation of Block 15a (Findings and Recommendations).  He found:

	a.  SGT V____ was directly responsible for the equipment in question at the time of loss.  The applicant and SFC M_____ had supervisory responsibility for the equipment in question at the time of the loss.

	b.  There was negligence on the part of the applicant and SGT V____ for failing to properly secure and store (or supervise such actions) the SKL and DAGR.

	c.  The predominate cause for the loss of the SKL and DAGR was due to the failure of the hand receipt holder and his supervisors to maintain property accountability/physical security within the unit.

	d.  If it is determined by the approval authority that the SKL and the DAGR were not lost or stolen then the above-named service members are recommended to be held financially liable.

	e.  Block 15d of the DD Form 200 contains the entry "See Block 15a."  In his memorandum, MAJ A______ recommends the applicant's financial liability be 
$1228.00.

14.  The FLIPL IO recommended:

	a.  50 percent of the total cost of the SKL and DAGR be distributed between the applicant, SFC M_____, and SGT V____ for failure to properly secure government equipment.

	b.  The evidence does not confirm that the BAS was in fact broken into, nor does it show it was not broken into.  It could be interpreted that by storing the items behind two locked doors (the outside door to Building A404 and Room 110) that the company commander's guidance was being followed.  The FLIPL IO believes a reasonable and prudent person would understand the two-lock minimum should have been, the items locked inside the footlocker and the footlocker secured inside a wall locker as had been the previous normal practice. This was not the case on 25 June 2010.  The BAS may have been broken into over the weekend of 23-24 June 2010, but the fact remains that the two missing items were not properly secured inside the aid station.

15.  On 5 November 2010, the applicant was notified by the FLIPL IO he was being recommended for charges of financial liability to the United States Government in the amount up to $2,456.01 for the loss of Government property investigated under HHC FLIPL WJTVJJ 2-x-xx-xxx.

16.  On 22 November 2010, the applicant submitted a rebuttal statement to FLIPL #2-x-xx-xxx.  He states the evidence does not support the recommendations and the IO's findings fail to show his actions or omissions were the proximate cause of the loss.  He provided the following in support of his rebuttal:
	a.  Following redeployment to Fort Bliss, the HHC Commander instructed each section within HHC they would now be responsible for the security and accountability of assigned sensitive items, including SKLs and DAGRs.  The HHC Commander's guidance was that all sensitive items be maintained under two levels of locks.  

	b.  He had the medical platoon secure all sensitive items in "Tuff Boxes" and lock the boxes in wall lockers in the BAS, secure the door to the BAS as well as Building A404, where the BAS is located.  In addition, all keys were locked in key locks.  These security measures were maintained at all times and the medical platoon ensured that the wall lockers, BAS, and Building A404 were secured and locked at the end of each day.

	c.  On 28 June 2010, at approximately 0559, the outer door to Building A404 and the door to the BAS were discovered to be unsecured.

	d.  The theft of the SKL and DAGR from their secured positions is an intervening cause of the loss.  When the unknown person or persons broke into Building A404 and stole the items, this action became a new cause of the loss.  Without that criminal act, the loss of the SKL and DAGR would not have occurred.  

	e.  He followed the HHC Commander's guidance and the common practice of the section within the HHC to ensure the security of all the medical platoon's equipment.  He acted reasonably under the circumstances, following command guidance and company practice, ensuring the security of the medical platoon equipment at all times under three levels.

	f.  He states the FLIPL IO recommended he be held financially liable in the amount of $1228.  However, in the memorandum of notification, dated 
5 November 2010, the figure is erroneously recorded as $2,454.01.  He requests if he is held financially liable the correct amount recommended by the FLIPL IO be assessed.

17.  On 12 January 2011, MAJ M________, Brigade Judge Advocate, provided a legal review of FLIPL WJTVJJ 2-x-xx-xxx.  The FLIPL was determined to be legally sufficient for the following reasons:

* the findings and recommendations complied with applicable legal requirements
* no significant errors appeared in the report of investigation
* sufficient evidence supported the findings of the investigation
* the recommendations were consistent with the findings
18.  On 4 April 2011, the FLIPL was approved by the approving authority, Major General (MG) P_______, to hold the applicant, SFC M_____, and SGT V____ financially liable.  The applicant's amount was $2,456.01.

19.  An undated letter notified the applicant an approved charge of liability had been assessed against him by the U.S. Government in the amount of $2,456.01.

20.  On 29 April 2011, he submitted a request for reconsideration of FLIPL 
WJTVJJ 2-x-xx-xxx.  

	a.  He states the evidence does not demonstrate he acted negligently.  He followed guidance from his commander regarding property security.  He ensured the equipment was stored under three levels of locks and the keys secured in key boxes.  He did not fail in his duty or care for the equipment, but acted as a reasonably prudent person would have in his position.  Therefore, the evidence is not sufficient to hold him financially liable. 

	b.  The evidence does not demonstrate he was the proximate cause of the loss.  The facts show that sometime between close of business on 25 June 2010 and 0559 on 28 June 2010, person or persons unknown broke into the locked Building A404, the locked BAS, and the locked wall lockers and stole the equipment.  This theft by person or persons unknown is the proximate cause of the loss.  Therefore, the evidence is not sufficient to hold him financially liable.

21.  On or about 22 September 2011, after he personally reviewed the new evidence submitted by the applicant in conjunction with the investigation of property loss, MG P______ determined that the assessment of financial liability should continue.  

	a.  He stated it is the obligation of a supervisor to ensure all Government property issued to or used by his subordinates is properly used and cared for and safekeeping is provided.  It is inherent in all supervisory positions and not contingent on signed receipts or responsibility statements.  

	b.  The IO found the items were frequently left unsecure in the BAS, allowing easy access by platoon members which was supported by the applicant's statement on 3 August 2010.  The applicant acknowledged the platoon often left the storage box in the open.  There were also no signs of tampering of the BAS, wall locker, or storage box, supporting the theory the items were left unsecure and easily accessible.

	c.  The investigation of property loss with all exhibits and new evidence were submitted to the appeal authority.
22.  On 1 December 2011, Lieutenant General B_______, Deputy Commanding General/Chief of Staff, Headquarters, United States Army Forces Command, Fort Bragg, NC, reviewed and denied the applicant's request for reconsideration of FLIPL WJTVJJ 2-x-xx-xxx in the amount of $2,456.01.

23.  During the processing of this case and advisory opinion, dated 25 April 2012, was received from the Department of the Army, Office of the Deputy Chief of Staff, G-4.  The G-4 recommended the financial liability assessed be reversed; reimbursement of $2,456.01, or all monies deducted from his pay as a result of the FLIPL; and correction of his records.  The G-4's recommendation was based on the following procedural flaws:

	a.  The company commander took all sensitive items to include COMSEC equipment out of the arms room and required all hand receipt holders to maintain and secure them in the section.  The commander did not provide any guidance or training on the proper way to secure and safeguard this type of equipment.

	b.  The company commander authorized those individuals tasked to inventory the sensitive items to use hard copy hand receipts instead of the required physical inventory.  In accordance with AR 710-2, paragraph 2-12j and table 2-2i, the sensitive items inventory is a physical inventory, not a hand receipt verification.

	c.  The legal review is not in accordance with AR 735-5 (Policies and Procedures for Property Accountability), paragraph 13-38.

24.  On 3 May 2012, the applicant concurred with the findings of the advisory opinion.

25.  AR 735-5 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 13-29 (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.

	b.  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.

	c.  Paragraph 13-29b (Culpability) states:

		(1)  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.

		(2)  Simple negligence is the absence of due care, by an act or omission of a person which lacks that degree of care for the property that a reasonably prudent person would have taken under similar circumstances, to avoid the LDD of Government property.

		(3)  Gross negligence is an extreme departure from due care resulting from an act or omission of a person accountable or responsible for Government property which falls far short of that degree of care for the property that a reasonably prudent person would have taken under similar circumstances.  It is accompanied by a reckless, deliberate, or wanton disregard for the foreseeable loss or damage to the property.

	d.  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.  The applicant's company commander took all sensitive items to include COMSEC equipment out of the arms room, against the advice of his 1SG, and required all hand receipt holders to maintain and secure them in the section.  The commander did not provide any guidance or training on the proper way to secure and safeguard this type of equipment.

2.  The applicant's initial course of action was to secure the platoon's sensitive equipment in the arms room.  This would have been the most secure means to store the sensitive equipment.  However, the SPC in the arms room was unable to accept the equipment due to previous orders to only accept NVGs and 
weapons.  He then took action to store the sensitive items under three locks, the lock on the wall locker, the lock on the BAS, and the lock on Building A404.  Therefore, there was no gross negligence and he did take action that a reasonably prudent person would have taken under similar circumstances.

3.  In order to show the applicant's conduct was the proximate cause, the evidence must show that his acts or omissions in a natural and continuous sequence, unbroken by a new cause, produced the LDD.  

4.  The NCOIC personally ensured that all doors, the common entry door and the BAS door, were secured before he left for the weekend.  The applicant had followed procedures in securing the sensitive items.  His actions continued in a natural and continuous sequence until broken by a new cause.  The new cause in this case was the unauthorized access to the building and the BAS.  He had no control over these events and therefore cannot be held accountable for the loss of the sensitive items.  An additional lock on the "Tuff Box," which was mobile, would not have prevented the loss once an individual had penetrated at least two locks, the building and the BAS, to gain access.  The "Tuff Box" would have simply been carried away.

5.  In his rebuttal, dated 22 November 2010, he states the FLIPL IO recommended he be held financially responsible for the amount $1228.00 and the figure in his memorandum of notification was $2456.01.  The reason for this discrepancy is unknown, however, it becomes mute in that full relief in the amount of $2456.01 is being recommended.

6.  Therefore, in view of the above, and in conjunction with the opinion provided by the 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 of the FLIPL.


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 $2,456.01, as indicated in FLIPL WJTVJJ 2-x-xx-xxx; and 

	b.  reimbursing him any monies already collected from his pay as a result of this 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)                                         AR20120002976



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ABCMR Record of Proceedings (cont)                                         AR20120002976



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