IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120017799 


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 reversal of a financial liability investigation of property loss (FLIPL) decision and reimbursement of all monies deducted from his pay as a result of the FLIPL.

2.  He states the property was maintained by others and not properly transferred from hand receipts upon Soldiers' clearing and reassignments to a new unit.  An  18-month time lapse occurred and he wasn’t properly notified of such actions in a timely manner.  In accordance with Army Regulation 735-5 (Policies and Procedures Accountability), assumption of property is assumed after 30 days of the departure of the original hand receipt holder with approved orders and clearing papers.

3.  He provides:
 
* DA Form 200 (FLIPL)
* FLIPL memorandum
* Findings and Recommendations Regarding the FLIPL memorandum
* FLIPL memorandum
* Additional Findings and Recommendations Regarding the FLIPL memorandum
* Memorandum for Record with enclosures (hand receipts)
* Appointment Authority Recommendation Regarding FLIPL memorandum
* FLIPL notification memorandum
* Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement for the period 1 to 31 January 2012
CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows he enlisted in the Regular Army on 30 March 2006.

2.  On 2 August 2011, an investigating officer (IO) completed an investigation in accordance with Army Regulation 735-5 into property loss noted when Sergeant Rxxxxxxx was performing inventories to take over the 264th Rear Detachment from the applicant.

3.  On 16 August 2011, the applicant was advised he was being recommended for the charge of financial liability to the U.S. Government in the amount of one month’s pay.  He was advised of his rights.

4.  In a memorandum, dated 19 September 2011, the IO, after review of the evidence and the applicant’s rebuttal, recommended the applicant be held liable for the missing equipment by forfeiting one month’s pay.

5.  On 11 October 2011, the applicant, through his command, was notified of approved charges of a FLIPL being assessed against him in the amount of $3,382.80.  He was advised of his rights.

6.  In an advisory opinion, dated 4 December 2012, the Director of Supply, Office of the Deputy Chief of Staff, G-4, recommended that the financial liability assessed against the applicant be reversed and the applicant be reimbursed $3,382.80 or all monies deducted from his pay as a result of the FLIPL and correction to his records.  The G-4 official stated:

   a.  The applicant signed a DA Form 3161 (Request for Issue or Turn-In) change document but he did not sign for the Cleaner Steam Pressure Jet Trailer. There were also two lateral transfers in the packet which were not filled out properly and there is no signature from the applicant signing for the equipment.  Since the lateral transfers were filled out incorrectly and the equipment was not signed for by the applicant these documents are erroneous and they cannot be used to find the applicant financially liable.
   
   b.  The applicant did sign his hand receipt and the Cleaner Steam Pressure was reflected.  However, it was insufficient because there was no legal document to justify adding the piece of equipment to his hand receipt.  

7.  The advisory opinion was provided to the applicant on 4 December 2012 for his acknowledgement/rebuttal.  He did not respond.

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 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.

9.  Army Regulation 735-5 defines the following term of personal responsibility as the obligation of a person to exercise reasonable and prudent actions to properly use, care for, safeguard and dispose of all U.S. Government property in his/her physical possession.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks relief and reimbursement from financial liability imposed against him by a FLIPL.

2.  The evidence of record shows the applicant was assessed by a FLIPL liability  in the amount of $3,382.80 for missing equipment.  The G-4 determined that since lateral transfers were filled out incorrectly and the equipment was not signed for by the applicant these documents are erroneous and they cannot be used to find the applicant financially liable.  The G-4 recommended the financial liability against the applicant be reversed with reimbursement of the $3,382.80 and correction of his records.

3.  For the purpose of financial liability, by regulation, personal responsibility is defined as the obligation of a person to exercise reasonable and prudent actions to properly use, care for, safeguard, and dispose of all U.S. Government property in his/her physical possession.  Based on the facts surrounding the incident, the applicant is not liable as a matter of regulation when applying the concepts of simple negligence and proximate cause as defined in Army Regulation 735-5.

4.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant's records to show he was not found liable and is entitled to reimbursement of all monies collected as a result of this correction.





BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 showing he was found not to be financially liable as indicated in the financial liability investigation of property loss in the amount of $3,382.80.

2.  The Board further requests that DFAS reimburse the applicant 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)                                         AR20120017799





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ABCMR Record of Proceedings (cont)                                         AR20120017799



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