IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120005226 


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, in effect, correction of her military records to show she is not liable for the loss of government property in the Financial Liability Investigation of Property Loss (FLIPL) Number WC**** 11-HHC-12.

2.  The applicant states, in effect, the initial findings against her were reconsidered and she was relieved of the debt that resulted from the above FLIPL; however, relief could not be granted because she had already been discharged from the military.

3.  The applicant provides copies of:

* Memorandum from counsel, dated 21 February 2012
* Memorandum from the Brigade Commander, dated 13 December 2011
* Memorandum from counsel to the Brigade Commander, dated 25 October 2011
* Email from counsel to the Training and Doctrine Command (TRADOC) G4 (Logistics Officer), dated 2 February 2012
* Letter from the Defense Finance and Accounting Service (DFAS) to the applicant, dated 20 July 2011
* Applicant's DFAS Military Leave and Earnings Statement (LES) for the period 1 to 13 May 2011
* Confirmation of Payment to DFAS, dated 16 August 2011
* FLIPL Packet WC**** 11-HHC-12 (69 pages)


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests on behalf of the applicant that she receive a full refund in the amount of $1,175.70, which was deducted from her final pay as shown on her LES.

2.  Counsel states:

	a.  The subject deduction from her pay/LES stemmed from a FLIPL assessed against her military service.  The applicant completed her military service obligation and was discharged before the approving authority had assessed financial liability.  Therefore, the applicant did not receive notice of the charges until after the money had been deducted from her final military pay.

	b.  The applicant petitioned the approving authority to reconsider his finding of liability.  She argued that the FLIPL lacked the legal justification necessary for an assessment of liability because it never offered evidence of negligence as required by Army Regulation 735-5 (Policies and Procedures for Property Accountability).  She further argued that her tenure as company commander was marked by a shortage of personnel qualified to be responsible for property.  She was saddled with the responsibility for merging two property books upon return from deployment, as well as a myriad of command responsibilities.  A shortage of $1,175.70 from a property book valued at $5 million is a testament to her diligence, not negligence.

	c.  In response to the applicant's request for reconsideration, the approving authority agreed with the applicant's arguments.  He reversed his finding of liability and requested the Army Board for Correction of Military Records (ABCMR) relieve her of all charges.

	d.  Counsel argues that the applicant has exhausted all administrative remedies.  He further states that a failure by the ABCMR to reverse the financial charges against the applicant would render the approving authority's relief of liability empty and be a tacit approval of the original injustice.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  On 12 May 2003, the applicant entered the Regular Army as a commissioned officer.  She served on active duty until her discharge on 13 May 2011.  She had attained the rank of captain, pay grade O-3.  She had completed 8 years and 
2 days of creditable active service.
2.  On 18 March 2011, the approving authority notified the applicant via a memorandum, that she had been assessed for the loss of government property identified under FLIPL WC**** 11-HHC-12.  The memorandum listed her rights relative to this matter.

3.  A DFAS on-line payment confirmation shows the applicant paid an "out of service" debt of $1,175.70 on 16 August 2011.

4.  On 25 October 2011, the applicant's counsel petitioned the approving authority for the subject FLIPL requesting that he reconsider the finding of financial liability.  Counsel argued that the findings of the FLIPL precluded a finding of negligence and that the failure to abide by the prescribed timeline and order of events in Army Regulation 735-5 denied the applicant's ability to exercise her rights in a meaningful way.

5.  On 13 December 2011, the approving authority responded to the applicant, stating that he reconsidered his decision and determined that she should be relieved of responsibility for the loss, damage, or destruction of government property.

6.  On 2 February 2012, the G4, TRADOC, notified the applicant's counsel that because the applicant was no longer in the military service, any relief for financial responsibility pertaining to the subject FLIPL had to be submitted to the ABCMR.

7.  In the processing of this case, an advisory opinion was obtained from the Acting Director of Supply, Office of the Deputy Chief of Staff, G-4 (Logistics), Washington, DC.  The opinion contends that the applicant is seeking a reversal of the decision to assess her with financial liability for the loss of government property due to a legal error.  The opinion recommended the financial liability assessed be reversed and that the applicant be reimbursed $1,175.70.  This recommendation was based on a procedural flaw in that the applicant had not been given notification of financial liability by the approving authority in accordance with Army Regulation 735-5, paragraph 13-42.  Furthermore, the applicant did not have the opportunity to submit a memorandum for reconsideration or an appeal to authorities for review or requests for reconsideration in accordance with paragraphs 13-43 and 13-51.

8.  Army Regulation 735-5 prescribes the basic policies and procedures in accounting for Army property and sets the requirements for formal property accounting within the Army.  It specifies that commanders at all levels will ensure compliance with all policies and procedures prescribed by this regulation that apply at their level of command.

	a.  Paragraph 13-42 provides that members of the U.S. Army may have approved charges of financial liability involuntarily withheld from their Federal pay.

	b.  Paragraph 13-43 provides that when an individual has been notified that financial liability has been approved, the individual should, with the advice of legal counsel, thoroughly review the financial liability investigation of property loss packet provided, then decide whether or not request reconsideration.

* Request reconsideration of the approving authority's decision
* Submit requests for reconsideration by memorandum through his or her immediate commander to the approving authority
* Submit requests for reconsideration only on the basis of legal error

	c.  Paragraph 13-51 provides that the term "request for reconsideration" refers to an application to the appeal authority challenging the decision of the approving authority in assessing financial liability.  Requests for reconsideration will be submitted to the approving authority that acted on the financial liability investigation of property loss.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her military records should be corrected to show she is not liable for the loss of government property in FLIPL Number WC**** 11-HHC-12 and that she should be reimbursed the $1,175.70 she paid to DFAS on 16 August 2011.

2.  The available evidence clearly shows the approving authority reconsidered his original decision and reversed the findings stating the applicant should be relieved of the responsibility for the loss of government property.  Accordingly, the subject debt should be voided and the full amount of monies collected refunded to her.

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 she was found to not be financially liable and therefore voiding the applicant's debt incurred as a result of FLIPL Number WC**** 11-HHC-12; and

	b.  auditing her military pay records and paying her all monies due 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)                                         AR20120005226



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ABCMR Record of Proceedings (cont)                                         AR20120005226



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