IN THE CASE OF: 

		BOARD DATE:	    28 January 2014

		DOCKET NUMBER:  AR20130006916 


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 relief from financial liability for the loss of equipment.

2.  The applicant states he was a Federal civilian technician and worked as the Reset Team Property Book Officer (PBO) during the Financial Liability Investigation of Property Loss (FLIPL) conducted between 15 February 2011 and 30 October 2012.  He retired as a civilian on 30 November 2012 and is currently serving in the Washington Army National Guard (WAARNG) in the rank of chief warrant officer three as the PBO, 56th Theater Information Operations Group (TIOG) at Camp Murray, Washington.  He also states:

	a.  The appointing official, Lieutenant Colonel (LTC) Alexander C. W____ provided him the entire investigation conducted under Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).

	b.  The investigating officer (IO), First Lieutenant (1LT) Chad C. C____, was his Federal technician rater until May 2011.

	c.  The IO's investigation centered on night vision goggles (NVGs) that were repaired at Clackamas, Oregon, with serial number discrepancies that were ultimately corrected and were not actually part of the FLIPL.

	d.  In addition to the information that was provided when the FLIPL's were initiated the investigation contained only one additional sworn statement.  The lack of sworn statements from the principals involved indicates an inadequate investigation was conducted by the IO.  There is no unique write-up or summary of investigation for each FLIPL.

	e.  He states that Colonel (COL) Ronald M. K____, Commander, 81st Heavy Brigade Combat Team (HBCT), was the approving authority for the FLIPL's initiated in March 2011 and later the approving authority as Chief of Staff, WAARNG in March 2012.  He reviewed the applicant's request for relief of financial liability; however, he failed to forward the appeal to the next higher commander.  He adds that the FLIPL was signed by COL Alan K. D____ as the approving authority on 3 December 2012, after COL K____ retired.  The IO and appointing authority both worked for COL D____, and all of the officers involved worked in close proximity to one another.  As such, the applicant states the FLIPL process was biased and prejudiced.

	f.  He states that three officers from the Judge Advocate General's (JAG) Office, WAARNG, were involved in his case.  They were not always available, failed to identify regulatory violations, and did not adequately represent him.

	g.  On 9 February 2013, he attended a Logistics Maintenance Seminar conference for new commanders and first sergeants, hosted by COL D____, who expressed his opinion about Office of Compliance Inspections and Examinations FLIPL's stating, "Guilty until proven innocent."

3.  The applicant provides five binders of documents, as follows:

* his initial request for relief of financial liability
* his second request for relief of financial liability (legal and regulatory)
* the finding of financial liability
* five completed FLIPL's
* the Army Regulation 15-6 investigation

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service and commissioned officer service in both the Regular Army and U.S. Army Reserve from 22 May 1974 to 9 July 1995.

2.  He enlisted in the ARNG of the United States and WAARNG on 10 July 1995.  He was appointed as a Reserve warrant officer on 25 August 2000 in military occupational specialty 920AO (Property Accounting Technician) and promoted to chief warrant officer three (CW3) on 13 November 2006.  The 2012 Selective Retention Board selected the applicant for retention in calendar year 2014.

3.  A DA Form 67-9 (Officer Evaluation Report), covering the period 1 May 2010 through 30 April 2011, shows the applicant's principal duty was PBO with responsibility to "supervise the accountability and hand receipt process to ensure that all 56th TIOG equipment was accounted for and maintained by appropriate staff sections."  His rater was Captain (CPT) Luis A____, S4 Officer, and his senior rater was LTC Johnathan D____, Executive Officer.  He received an "Outstanding Performance, Must Promote" rating from the rater and a "Best Qualified" rating for promotion potential to the next higher grade from the senior rater.

4.  In support of his request the applicant provides the following:

	a.  A DA Form 1574 (Report of Proceedings by IO/Board of Officers) that shows the IO was appointed and commenced the investigation on 25 January 2011 and it was completed on 13 May 2011.

		(1)  After extensive research of Reset records of property accountability, a total of 31 items were found unaccounted for with a total dollar value of approximately $262,739.19.  Of the 31 items, a total of 22 were sensitive items.

		(2)  Based on testimony and evidence gathered, the IO determined that the applicant had overall responsibility for accountability and tracking of sensitive items while in the custody of Reset.  He noted the losses would have been discovered earlier or avoided with proper accountability of sensitive items by serial number between the organizations involved.  In addition, the applicant did not submit works orders by individual item and serial number for budget and item accountability.

		(3)  The IO recommended, in part, that the applicant be removed from the Reset/Officer in Charge (OIC) position because of systemic problems regarding supervisory controls of Reset operations and improper handling and accountability of sensitive items.  On an unspecified date, the appointing authority approved the findings and recommendations of the IO.

	b.  A MIL Form 430-1-E (Performance Appraisal Form), covering the period 1 March 2010 through 28 February 2011, that shows the applicant's principal duty was Equipment Specialist (GS-09).  It shows his rater was CPT Matthew N. C____ and his senior rater was MAJ Jack M. M____.  The applicant received "Fully Successful" ratings for five job elements and "Unacceptable" ratings for two job elements due to lack of property accountability and lack of oversight.  He received a rating of record of "Fully Successful."

	c.  FLIPL, Inquiry/Investigation Number 2011-0023S, Date Loss Discovered:  9 March 2011, that shows one (1) Monitor, Chem Agent, Improved, Serial Number:  Z16-C-03922, RICC A; Unit Cost:  $6,333.00 was lost.  It also shows:

* on 9 March 2011, the applicant initiated the FLIPL
* on 16 August 2011, the IO (1LT C____) found the item was lost due to negligence by the applicant and recommended financial liability ($0.00)
* on 7 March 2012, the appointing authority (LTC W____) approved the IO's recommendation that the applicant's negligence was the proximate cause of the loss and that the applicant be held financially responsible in the amount of $0.00
* on an unspecified date, the approving authority (COL K____) approved the FLIPL

	d.  FLIPL, Inquiry/Investigation Number 2011-0026S, Date Loss Discovered: 22 March 2011, that shows two (2) Battery Chargers, 60/100-AMP, Serial Number:  017934; Unit Cost:  $1,950.00; Total Cost:  $3,894.00 were lost.  It also shows:

* on 9 March 2011, the applicant initiated the FLIPL
* on 16 August 2011, the IO (1LT C____) found the items were lost due to negligence by the applicant and recommended financial liability ($0.00)
* on 7 March 2012, the appointing authority (LTC W____) approved the IO's recommendation that the applicant's negligence was the proximate cause of the loss and that the applicant be held financially responsible in the amount of $0.00
* on 8 March 2012, the approving authority (COL K____) approved the FLIPL

	e.  FLIPL, Inquiry/Investigation Number 2011-0033S, Date Loss Discovered: 28 March 2011, that shows one (1) Radiac Set, AN/VDR-2, Serial Number:  04455CC, RICC 2; Unit Cost:  $1,950.00 was lost.  It also shows:

* on 28 March 2011, the applicant initiated the FLIPL
* on 16 August 2011, the IO (1LT C____) found the item was lost due to negligence by the applicant and recommended financial liability ($0.00)
* on 7 March 2012, the appointing authority (LTC W____) approved the IO's recommendation that the applicant's negligence was the proximate cause of the loss and that the applicant be held financially responsible in the amount of $0.00
* on 8 March 2012, the approving authority (COL K____) approved the FLIPL

	f.  FLIPL, Inquiry/Investigation Number 2011-0034S, Date Loss Discovered: 28 March 2011, that shows a Net Operations Kit (zero quantity); Unit Cost:  $3,750.00 was lost.  It also shows:

* on 28 March 2011, the applicant initiated the FLIPL
* on 16 August 2011, the IO (1LT C____) found the item was lost due to negligence by the applicant and recommended financial liability ($0.00)
* on 7 March 2012, the appointing authority approved (LTC W____) the IO's recommendation that the applicant's negligence was the proximate cause of the loss and that the applicant be held financially responsible in the amount of $0.00
* on 8 March 2012, the approving authority (COL K____) approved the FLIPL

	g.  FLIPL, Inquiry/Investigation Number 2011-0028S, Date Loss Discovered: 9 March 2011, that shows one (1) All Source, Laptop, Serial Number:  
AL90-D0263/7RTM7D1; Unit Cost:  $21,700.00 was lost.  It also shows:

* on 9 March 2011, the applicant initiated the FLIPL
* on 16 August 2011, the IO (1LT C____) found the item was lost due to negligence by the applicant, recommended financial liability in the amount of the actual value of $16,275.00, and indicated the applicant's –

* monthly basic pay was $6,144.90
* recommended financial liability was $6,144.90

* on 7 March 2012, the appointing authority (LTC W____) approved the IO's recommendation that the applicant's negligence was the proximate cause of the loss and that the applicant be held financially responsible in the amount of $6,144.90
* on 8 March 2012, the approving authority (COL K____) approved the FLIPL

	h.  On 17 August 2011, the appointing authority (LTC W____) provided the applicant notice of recommendation for charges of financial liability in the amount of $6,144.90.  He was also provided copies of the five FLIPL's, advised of his rights and the procedures involved, and the time constraints for submission of a rebuttal.

	i.  On 1 November 2011, the applicant submitted a request for relief of pecuniary liability.

		(1)  He provided a summary of his work experience over the past 3 years and commented on the conduct of the FLIPL's and Army Regulation 15-6 investigation.

		(2)  He also provided a conclusion stating, "I was never the OIC of the Reset Team, I have been the PBO the entire time.  There have been three Reset OICs.  The Army Regulation 15-6 investigation does not have a statement from any of them referencing my duty performance as the Reset PBO.  Major C____ and 1LT C____ did my technician evaluation on 20 April 2011 and it basically said the same thing as the Army Regulation 15-6 investigation.  I elected to not sign it because it focused on the bulk work orders for equipment I sent to Camp Withycombe and loss of accountability because of serial number discrepancies."

	j.  On 8 March 2012, the approving authority (COL K____) notified the applicant that financial liability was assessed against him in the amount of $5,484.33 for the loss of Government property investigated under FLIPL's 2011-0023S, 2011-0026S, 2011-0028S, 2011-0033S, and 2011-0034S.  He was provided a copy of the Financial Liability investigation, advised of his rights, informed that a request for reconsideration could be submitted based on legal error, and he was offered information on procedures regarding the indebtedness.

	k.  On 24 May 2012, the applicant submitted a request for reconsideration of the assessment of financial liability based on legal errors and procedures.

		(1)  His request was based on a failure to comply with the regulatory time constraints for the investigation of property loss (45 days) and the investigation and recommendation process (75 days) within 120 days.  He offered two legal issues for consideration: (1) that the IO was not an unbiased IO, and (2) the lack of sworn statements from the principals involved in the FLIPL's indicates an inadequate investigation was conducted by the IO.  The applicant added statements from two noncommissioned officers (Sergeant First Class (SFC) William J____ and Staff Sergeant James M____) who should have been contacted by the IO.

		(2)  On 5 June 2012, in response to being contacted by the approving authority, the applicant provided another statement from SFC William J____ for consideration with his request.

	l.  On 18 June 2012, (then) LTC(P) D____, Director of Logistics, G4, and the approving authority for the FLIPL, forwarded the applicant's request for reconsideration of the assessment of financial liability to the Assistant Adjutant General - Army, WAARNG.  He offered information regarding the applicant's contention of bias on the part of the IO based on being his supervisor and rater on his civilian performance appraisal.  He also commented on the statements the applicant provided in support of his request.  He concluded that the applicant's request for reconsideration had no substantive basis.

	m.  On 26 September 2012, the JAG officer serving as Operational Law Attorney, WAARNG, reviewed the FLIPL's and the applicant's request for reconsideration.  

		(1)  He found the action legally sufficient, the evidence adequate, the findings supported by the evidence, and the recommendations logical and consistent with the findings.

		(2)  He acknowledged the applicant's contention that the FLIPL's are untimely.  However, he noted the applicant failed to establish any prejudice in his ability to defend, or any prejudice received from that inability caused by the passage of time, nor did the applicant state specific examples of evidence that he could no longer develop in support of his response.  In addition, the applicant was not able to establish bias by 1LT C____, particularly since the Army Regulation 15-6 investigation was initiated before any performance evaluation was performed.

	n.  On 30 October 2012, the appellate authority, Major General Bret D. D____, The Adjutant General, WAARNG, denied relief of financial liability to the applicant.

5.  On 3 December 2012, the approving authority (now COL D____) notified the applicant that his request for reconsideration was denied by the appellate authority.

6.  In the processing of his case, an advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4, Washington, DC.  The advisory official recommends partial relief with the recommendation that the financial liability assessed be partially reimbursed in the amount of $660.57.

	a.  The advisory official states, in March 2011, the applicant's command erroneously merged and processed all five FLIPL's.   The governing Army regulation instructs to prepare only one FLIPL when an incident of loss, damage or destruction of property involves property that is on the property records of the same account, the same Department of Defense Activity Address Code, and same document register.

	b.  The applicant was found financially liable in only one of the FLIPL's (i.e., 2011-0028S) and the approving authority determined that the applicant should be held financially liable for $5,484.33.  This amount is $660.57 less than the $6,144.90 he was charged.  The governing Army regulation provides that the approving authority may reduce the amount based on the nature and circumstances surrounding the damage or loss.  Thus, the applicant should be reimbursed $660.57, the amount he was overcharged based on the only FLIPL in his application where he was held financially liable.

7.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.

	a.  The applicant states that the dollar amount that the advisory official recommends for partial relief (i.e., $660.57) is the difference between one month of (W-3) active duty pay ($6,144.90) and one month of (GS09, Step 10) Federal technician pay ($5,484.33).  Since he was a full time technician the entire time that he worked as the Reset PBO for the 81st HBCT, the WAARNG State JAG office determined that his technician pay (not his active duty pay) was the appropriate pay scale to use.

	b.  He states the advisory official failed to identify regulatory violations, as follows:

* a thorough investigation was not completed
* COL K____ failed to forward his appeal to the next higher commander
* COL D____ signed as the approving authority after COL K____ retired
* there was bias in the investigation because the IO worked for both the appointing and approving authorities

	c.  He adds that he believes the assignment of financial liability against him was punishment because all NVGs were accounted for.

	d.  He concludes by stating there must be evidence of negligence in order to be held financially liable for anything.  He was not negligent in his duties, there was no investigation on any of the FLIPL's, and no one was found negligent.  He requests full relief of the finding of financial liability.

8.  Army Regulation 735-5 (Policies and Procedures for Property Accountability), chapter 13 (FLIPL), shows that the Government may impose a finding of pecuniary liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage, or destruction of Government property.

* Negligence is defined as simple or gross, with simple negligence being the failure to act as a reasonably prudent person would have acted under similar circumstances
* Gross negligence is defined as an extreme departure from the course of action to be expected of a reasonably prudent person, all circumstances being considered, and accompanied by a reckless, deliberate or wanton disregard for the foreseeable consequences of the act
* Willful misconduct is defined as any intentionally wrongful or unlawful act dealing with the property concerned
* Direct responsibility is defined as the obligation of a person to ensure that all Government property for which he has receipted for is properly used and cared for and that proper custody and safekeeping is provided
* Command responsibility is the obligation of a commander to ensure that all Government property within his command is properly used and cared for, and that proper custody and safekeeping is provided
* Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss or damage would not have occurred

	a.  Paragraph 13-6 (Time constraints for processing financial liability investigations of property loss) instructs to initiate and process DD Forms 200 within a specific number of days….[w]hen delayed beyond the below 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 FLIPL as an exhibit."  It also states for the ARNG, "under normal circumstances, do not exceed 240 calendar days total processing time."

	b.  Paragraph 13-8 (Time constraints for initiation of financial liability investigations of property loss) provides that the ARNG will initiate and present financial liability investigations of property loss to the appointing authority or approving authority as appropriate not later than 75 calendar days after the date of discovering the discrepancy.

	c.  Paragraph 13-17 (Criteria) provides that the approving authority is defined as an Army officer or Department of the Army Civilian (DAC) employee authorized to appoint a financial liability officer and to approve financial liability investigations of property loss.  For the ARNG, commanders in the grade of COL (federally recognized) are authorized to be appointed as the approving authority for financial liability investigations of property loss arising within their command.  The Director, ARNG or designated representative may authorize an adjutant general to delegate or appoint in writing a COL assigned to a command billet awaiting federal recognition to be appointed as an approving authority.

	d.  Paragraph 13-18 (Conflict of interest) provides that no person may act as an appointing authority or the approving authority who has had personal responsibility or accountability for the property listed on the DD Form 200 at the time the property became lost, damaged or destroyed.  In such cases, the next higher commander or DAC employee in the chain of command or supervision will act as the appointing authority or the approving authority, as appropriate.

	e.  Paragraph 13-32 (Financial liability officer's findings and recommendations) provides that the financial liability officer will give any individual, against whom he or she makes a recommendation to assess financial liability, a chance to examine the FLIPL after the findings and recommendations have been recorded on the DD Form 200 and the opportunity to make a rebuttal statement in his or her own behalf.  A copy of the memorandum explaining the individual's rights will be attached to the FLIPL as an exhibit.

	f.  Paragraph 13-51 (Information regarding requests for reconsideration) 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.  The approving authority will, after review and determination that liability will continue, forward requests for reconsideration to the next commander in the chain of command.  This will be accomplished within 15 calendar days of receipt by the approving authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be relieved from financial liability for the loss of equipment because the FLIPL's were inadequate and incomplete, there was no negligence on his part, and there was bias and prejudice as a result of the duty positions and closeness in proximity of the officers involved in his case.  He also contends he was provided inadequate legal assistance, and the approving authority failed to forward his request for relief of financial liability to the appeal authority.

2.  The available evidence shows: 

	a.  An Army Regulation 15-6 investigation was initiated on 25 January 2011, completed on 13 May 2011, and the IO was the applicant's Federal technician rater up until that time.  The appointing authority approved the IO's recommendation that the applicant be removed from the Reset/OIC position because of systemic problems regarding supervisory controls of Reset operations and improper handling and accountability of sensitive items.

	b.  After the Army Regulation 15-6 investigation was initiated for the loss of property, the applicant initiated five DD Forms 200 in March 2011.  In August 2011, the IO (who was not the applicant's rater) completed his portion of the five FLIPL's and the applicant was provided the opportunity to submit a request for relief of pecuniary liability.

		(1)  On 1 November 2011, the applicant submitted his request for relief for pecuniary liability and it was considered by the approving authority.

		(2)  In March 2012, the five FLIPL's were approved by the appointing authority and forwarded to the approving authority.  In all five instances, the approving authority found the applicant's negligence was the proximate cause of the losses and he held the applicant financially responsible in the amount of $5,484.33.  The applicant provides insufficient evidence to refute the findings of the IO.

	c.  On 24 May 2012, the applicant submitted a request for reconsideration of the assessment of financial liability.  Included in his request were statements from two NCO's whom the applicant believed should have been interviewed by the IO because their information was essential to the investigation.

	d.  The approving authority considered the statements and afforded the applicant the opportunity to obtain additional statements from the NCO's that contained specific material information.  In response, the applicant provided an additional statement from one of the NCO's.

		(1)  Thus, the evidence of record shows that despite the applicant's contention that the IO should have obtained additional statements during the investigation the applicant was actually afforded the opportunity to obtain statements in his own behalf.

		(2)  The approving authority reviewed all the information the applicant provided in support of his request for reconsideration of assessment of financial liability and his contentions.  Nonetheless, he found that the applicant's request for reconsideration lacked any substantive basis and he forwarded the action to the appellate authority.

3.  A legal review by the Operational Law Attorney, WAARNG, found the FLIPL to be legally sufficient and that the findings were supported by the evidence.  He also found that the applicant's request failed to establish any prejudice or bias by the IO, appointing authority, or approving authority in his case.  Moreover, the applicant failed to establish any prejudice caused by the passage of time.

4.  The evidence of record shows the applicant was held financially responsible in the amount of $5,484.33; 1 month of his DAC technician pay (rather than $6,144.90; 1 month of his W-3 pay).  This amount is to the applicant's advantage and the evidence of record shows this was the appropriate pay scale to use.

5.  The evidence of record shows that the applicant's request for reconsideration of financial liability was acted upon by the appropriate authority; specifically, the appellate authority.  Thus, a thorough review of the evidence of record shows the applicant's contention that the approving authority did not forward his request for reconsideration of the assessment of financial liability to the appeal authority is not based on fact.

6.  Therefore, in view of the available evidence and all of the foregoing, and as a result of the aforementioned conclusions, there is no basis to grant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20130006916



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ABCMR Record of Proceedings (cont)                                         AR20130006916



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