BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20130000721 


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 her records to show she was not found liable for the loss of U.S. Government property in the amount of $2,000.00 and repayment in the amount of $2,000.00 for a debt incurred as a result of a Financial Liability Investigation of Property Loss (FLIPL).

2.  The applicant states:

	a.  She was erroneously charged $2,000.00 and she should not be held financially liable for any amount.  She does not contest her responsibility for the items at issue under the FLIPL nor does she contest that the items are currently lost, damaged, or destroyed.  The alleged liability in this case rests solely on the fact that she was negligent while accounting for the property which was the proximate cause of the loss.  The FLIPL fails to identify negligence on her part.

	b.  The investigating officer for the FLIPL acknowledges that there were no published standing operating procedures.  Instead, she was forced to rely on the verbal direction of her command to chain-lock vehicles and keep sensitive items with their associated vehicles.  The only officers immediately accessible to her for guidance were later punished for property-related integrity issues.

	c.  She was a newly-promoted first lieutenant with approximately 4 months in her position as a platoon leader in combat and she had no prior Army experience.  She had no peers at her location (a remote combat outpost at a forward support company).  Due to her lack of experience, she did not have a reason to deviate from the directions given to her by her commander or to assume that the precautions taken would not suffice.  Instead, she acted as a reasonable and prudent person of the same age, rank, and experience would under the circumstances.  For these reasons, she believes a finding of negligence is improper and the imposition of financial liability should be invalidated.

	d.  The FLIPL fails to prove her actions or omissions were the proximate cause of loss of U.S. Government equipment at issue.  Theft was the proximate cause of the loss, not negligence.  The vehicle was chain-locked and combat-locked in accordance with verbal guidance.  She maintained the only key to the chain-lock.  While she was on leave, the vehicle was broken into and the sensitive items were stolen.  The investigating officer for the FLIPL believed she was the proximate cause because she did not sub-hand receipt the items prior to going on leave.  This point is moot.  The outcome would simply have been assessing another person liable for the same stolen items.  The criminal actions of outside individuals cannot be assumed to be foreseeable or reasonably anticipatable.  Probable theft is an outside force breaking any "natural and continuous sequence" she had with the missing items.  For this reason, she is not the proximate cause of the loss and the imposition of financial liability should be invalidated.

	e.  Upon returning to Fort Campbell, KY, she requested a copy of the entire FLIPL packet from the battalion S-4 who notified her that her request for reconsideration had not been forwarded to the approving authority.  Upon reviewing the entire FLIPL, this fact was apparent as her request for reconsideration along with a critical sworn statement from her platoon sergeant at the time in question were not present.  She had submitted her request for reconsideration in accordance with the regulation and it is a procedural error that it was not included with the original FLIPL forwarded to the approving authority.  For this reason as well, the imposition of financial liability should be invalidated.

3.  The applicant provides:

* leave and earnings statements for 1-31 October 2011 and 1-30 November 2011
* FLIPL, dated 22 July 2011, with associated documents

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the Regular Army on 23 May 2009 and is currently serving on active duty in the rank of captain.

2.  A DD Form 200 (FLIPL) shows an investigation of property loss was conducted and the investigating officer found the applicant liable in the amount of $2,000.00 for the lost property.  On 22 July 2011, the approving authority signed the DD Form 200 and approved the recommendation.

3.  On 22 July 2011, she was notified that an approved charge of financial liability in the amount of $2,000.00 was assessed against her by the U.S. Government for the loss of U.S. Government property.

4.  She provided copies of two LES's which show $1,000.00 were deducted from her pay for October 2011 and November 2011.

5.  In the processing of this case, a staff advisory opinion was obtained from the Director of Supply, Department of the Army Office of the Deputy Chief of Staff, 
G-4.  The opinion recommends reversing the financial liability assessed against the applicant, refunding the amount of $2,000.00 – or all monies deducted from her pay as a result of the FLIPL, and correcting her records to show she was not financially liable.  The opinion states:

	a.  After conducting research in the Logistics Information Warehouse, it was discovered that the Global Positioning System (GPS) the applicant was charged for had been recovered and a "found on installation" transaction was processed in the unit's property book.  On 20 January 2012, 11 months after the FLIPL was initiated, another unit picked up the GPS under unit identification code (UIC) W6JX37.

	b.  It was also discovered that the two receiver transmitters, serial numbers 14909 and 13677, were being reported under the same UIC to which the applicant was assigned when the FLIPL was initiated.  The receiver transmitters were reported in the unit's Standard Army Maintenance System-Enhanced on 14 November 2012.

	c.  The applicant was charged for one GPS and two receiver transmitters.  This equipment is no longer missing and the applicant should be reimbursed $2,000.00.

6.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She did not respond.

7.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes basic policies and procedures in accounting for Army property and accounting for lost, damaged, or destroyed Army property.  It states that an investigating officer's responsibility is to determine the cause and value of the loss, damage, or destruction of U.S. Government property listed on the FLIPL and to determine if assessment of financial liability is warranted.  Individuals may be held financially liable for the loss, damage, or destruction of U.S. Government property if they were negligent or have committed willful misconduct and their negligence or willful misconduct is the proximate cause of that loss, damage, or destruction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was erroneously found liable for missing property and she should not be held financially liable for any amount.

2.  The evidence shows the applicant was found liable for the loss of U.S. Government property (one GPS and two receiver transmitters).

3.  The Director of Supply, Department of the Army Office of the Deputy Chief of Staff, G-4, states the property in question is no longer missing and the applicant should be reimbursed $2,000.00.  Therefore, it appears that there was no negligence or willful misconduct on the applicant's part and she was unfairly or erroneously assessed liability for the loss of U.S. Government property.

4.  Based on the foregoing, it would be appropriate to grant the applicant's request for relief.

BOARD VOTE:

_x____  _x_______  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to show she was not found financially liable for the lost property and to refund to her any 


monies deducted from her pay (up to $2,000.00) as a result of the erroneous FLIPL determination.



      ___________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)                                         AR20130000721



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ABCMR Record of Proceedings (cont)                                         AR20130000721



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