IN THE CASE OF:	  

		BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130008989 


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 of financial liability #WSXXXX-RD-21XX-00XX, imposed against him on DD Form 200 (Financial Liability Investigation of Property Loss (FLIPL)) initiated on 10 July 2012.

2.  The applicant states:

	a.  She was found financially liable for the alleged loss of 14 multi-cam holsters and 29 pistolman sets valued at $800.00.

	b.  The proper application of the evidentiary and legal standards set out in Army Regulation 735-5 (Property Accountability Policies) indicates that this erroneous finding should be corrected.

	c.  Army Regulation 735-5 holds that the imposition of liability under a FLIPL can only be found when the investigation establishes four factors:

* Responsibility
* Culpability
* Proximate cause
* Loss

	d.  Unless all four factors are present, a FLIPL cannot be used to form the basis for financial liability.

	e.  The financial liability officer (FLO) and all subsequent reviewing authorities failed to properly abide by the four required elements.

	f.  Army Regulation 735-5 is careful to define "direct responsibility" as the obligation of a person to ensure all government property for which he or she has receipted is properly used and cared for and that proper custody, safekeeping, and disposition are provided.

	g.  The appointing authority stated she was being recommended for liability because she had direct responsibility for the loss of the equipment.  She cannot be held directly responsible for the equipment when it was hand receipted to another individual.

	h.  Army Regulation 735-5 defines "negligence" as the absence of due care by an act or omission of a person that lacks the degree of care for the property that a reasonably prudent person would have taken under similar circumstances to avoid loss.  

	i.  The FLO asserted that she failed to supply her supply section with concise guidance and ensure implementation of a clear line of custodial responsibility for all unit rapid field initiative (RFI) equipment.

	j.  In reaching his determination the FLO failed to consider the nature or urgency of the activity ongoing at the time of the loss of the property.  The FLO did not recognize that the holsters and pistolman sets in question were issued on 21 October 2011, 11 days after she had deployed.

	k.  Army Regulation 735-5 specifically directs the FLO to seek out all the facts and interview and obtain statements from all individuals whose testimony may assist in deciding the cause of, or responsibility for, the loss, damage, or destruction (LDD) of the property listed.

	l.  The FLO did not see fit to interview any Soldiers who may have been issued the holsters and pistol sets without hand receipt.  If he had done so he would have found that the equipment is presently being utilized by Soldiers in the unit and can be recovered.

	m.  Army Regulation 735-5 defines "proximate cause" which in a natural and continuous sequence of events unbroken by a new cause, produced the loss or damage.  Without this cause, the loss or damage would not have occurred.


	n.  There was indeed a new cause that produced the loss of the holsters and pistol sets.  The loss cannot be said to have been the natural, direct, and immediate consequence of not hand receipting the item, but rather the absence of direct supervision brought on by her responsibility to deploy early.

	o.  The holsters and pistolman sets are not lost as contended by the FLO.  They are presently being utilized by the Soldiers in Headquarters and Headquarters Company (HHC), 7th Engineer Battalion.

	p.  She is confident that if an inspection of the holster and pistolman sets within "this unit" was made, all of the improperly-issued equipment would be received.

3.  The applicant provides:

* FLIPL Packet, dated 10 July 2012
* Rebuttal of FLIPL, dated 14 August 2012
* FLIPL Findings, dated 05 September 2012
* Request for Reconsideration of FLIPL, dated 2 October 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army staff sergeant (SSG)/E-6.  In 2009, she was assigned to HHC, 7th Engineer Battalion.  She served as the battalion rear detachment supply sergeant and she was responsible for the accountability of all installation, organizational, and medically-evacuated Soldier Organizational Clothing and Individual Equipment (OCIE) totaling $1.8 million.

2.  Between 5 October and 6 October 2011, HHC, 7th Engineer Battalion was to conduct an RFI draw in preparation for the battalion's upcoming deployment.  The applicant was the supply sergeant at that time, and on 6 October 2011 she assumed direct responsibility for 37 tactical holsters and 37 pistolman sets by signing her name on a DA Form 3161 (Request for Issue or Turn-In) from RFI.

3.  The applicant deployed to Afghanistan in support of Operation Enduring Freedom on 15 October 2011.

4.  On 10 July 2012, a FLIPL was initiated.  The DD Form 200 states that on       5 July 2012, Sergeant J___s discovered an additional attachment (DA Form 2062 (Hand Receipt/Annex Number)) to his Central Issue Facility (CIF) Clothing Record of Equipment he had 

no knowledge of signing.  Sergeant J___s also discovered a DA Form 3161 signed by the applicant for the same equipment.  The applicant and Sergeant J___s both had hand receipts from the Program Executive Office Soldier for the same items.  Sergeant J___s conducted an inventory of the items listed in his clothing record.  After the inventory was complete, there were 14 OCIE holsters and 29 pistolman sets missing.  These items were an RFI draw in late October 2011.  Some of the same items are currently signed and accounted for.  HHC supply has contacted the rear detachment and has checked out all areas of responsibility within HHC and the missing holsters and pistolman sets have not been accounted for.

5.  On 17 July 2012, a FLO was appointed to investigate the facts and circumstances surrounding the equipment.  The FLO stated:

	a.  Originally, the applicant signed for 37 holster and 37 pistolman sets on 6 October 2011.

	b.  On 21 October 2011, the same equipment was posted as an attachment to Sergeant J___s' CIF OCIE hand receipt but wasn't noticed by Sergeant J___s until 30 June 2012, at which time he notified his chain of command.

	c.  HHC was able to account for 23 out of 37 holsters and 8 out of 37 pistolman sets.

	d.  At the time 14 holsters and 29 pistolman sets were considered lost.

	e.  The applicant was the supply sergeant and Sergeant J___s was the supply clerk.

	f.  At the time of the loss HHC had a moderate operations tempo.  The applicant was an experienced supply sergeant.  By virtue of her rank, experience, and the operations temp, she should have been able to compensate for any stressors and account for all RFI unit-drawn equipment without incident.

	g.  Sergeant J___s, then Specialist J___s, had been a unit supply specialist for approximately 1.5 years and would have considerably less experience than his supervisor (the applicant).

6.  During the investigation, the FLO found that by signing for the missing equipment on a DA Form 3161, the applicant assumed direct responsibility as written in Army Regulation 735-5.  It was her obligation to ensure proper custody and safekeeping of the holsters and pistolman sets.  Direct responsibility was established by her signing of the DA Form 3161 and a sworn statement she provided.  While it was claimed by her that Sergeant J___s was the one to have custodial responsibility, as the HHC supply sergeant she had inherent supervisory responsibility over all classes of supply directly processed by her supply office as written in Army Regulation 735-5.  As such, she was obligated to provide proper guidance and direction to subordinate personnel, enforcement of all security, safety and accounting requirements, and maintain a supervisory climate that facilitates and ensures the proper use and care of government property.

7.  The FLO found that initial accountability of the lost equipment never took place and the approximate time of the loss was at the time of issue on 6 October 2011.  The applicant signed the DA Form 3161 because she believed Sergeant J___s had custody of the missing equipment and she claims to have verbally checked with Sergeant J___s later that day in the arms room where Sergeant J___s secured the lost equipment.  She admitted to seeing two boxes containing the lost equipment in the arms room but at no time did she ever physically lay eyes on, lay out, or count the contents in the boxes.  A reasonable person would have confirmed the safe custody of equipment signed under their name, even if it was believed under good faith that another Soldier had physical custody.  Sergeant J___s had no knowledge of a requirement to transfer the missing equipment under a custodial responsibility and he never received concise guidance from the applicant.  Her failure to initially account for RFI-issued unit equipment is the proximate cause for the loss.

8.  The FLO recommended that the applicant be held financially liable for the loss of the 14 holsters and the 29 pistolman sets.  He recommended that more oversight for unit RFI issue be implemented and posted in an operations order for the company prior to any major draw of personnel and unit equipment.  He stated that it was in the best interest of the company not to place supply personnel on ADVON detail during the critical time prior to deployment.  He stated that the applicant should be charged with the full amount for the missing equipment ($1,743.08) less 10 percent depreciation allotted for lost OCIE ($1,568.77).

9.  On 21 July 2012, the applicant was notified that she was being recommended for assessment of financial liability to the U.S. Government in the amount of $1,568.77 for loss of government property investigated under the FLIPL.  She was informed of her rights and she had 30 days to submit a statement or other evidence before the FLIPL be would be forwarded to the approval authority.  She acknowledged receipt of the notification.


10.  On 22 July 2012, the FLO prepared a memorandum for record (MFR) outlining a timeline of his actions during the course of the investigation.  In the MFR he states he sought legal advice from the brigade legal office and he spoke with the brigade Judge Advocate (JA).

11.  On 14 August 2012, the applicant forwarded through her chain of command a request to be relieved of all financial liability associated with FLIPL #WSXXXX-RD-21XX-00XX.  In her request, she basically reiterates what she states in her application to this Board.

12.  The applicant was notified on 5 September 2012 of an approved charge of financial liability to the U.S. Government, in the amount of $800.00, for loss of government property.  In the notification, she was advised of her rights and she was told that after she exhausted all of the rights her last avenue of redress was to apply to this Board.

13.  On 2 October 2012, the applicant submitted a request for reconsideration of the decision to impose the FLIPL against her; however, the commanding general denied her request on 3 October 2012.

14.  During the processing of this case an advisory opinion was requested from the Office of the Deputy Chief of Staff, G-4.  The Director of Supply states that the package provided is not sufficient to fairly provide an advisory opinion.  He states the legal review is not in the packet and it is needed to determine if the investigating officer's recommendation is legally sufficient.

15.  An attempt was made to obtain a copy of the legal review from the 1st Engineer Property Book Officer (PBO); however, the legal review has not been received.

16.  The applicant provides a memorandum from her Legal Assistance Attorney, dated 16 April 2013.  He states:

	a.  He contacted the FLO on 14 April 2013 regarding his FLIPL investigation.

	b.  While the FLO may have received legal advice from individuals, he had no firsthand knowledge on whether a formal documented legal review was ever conducted.  

	c.  According to the FLO, a formal written review may have been done, but he is not sure.

	d.  It is his position that a legal review was never conducted in this case and for that reason, the applicant should have never been found liable in the first place.

	e.  The applicant contacted the 7th Engineer PBO, who contacted the 1st Engineer PBO to find a copy of the legal review.  No response was received. 

17.  Army Regulation 735-5 is the authority for property accountability policies.  Paragraph 13-39 (Legal Review of a FLIPL) states:

	a.  Upon receiving a DD Form 200 on which the approving authority believes financial liability is appropriate, the approving authority will obtain a legal opinion, if not already obtained by the appointing authority, as to the legal sufficiency prior to determining whether to access financial liability.

	b.  A legal advisor will provide a written opinion as to the legal sufficiency of the FLIPL.  If in the legal advisor's opinion the FLIPL is not legally sufficient, the opinion will state the reason why and make appropriate recommendations.  The opinion will be attached to the financial liability investigation prior to the approving authority's review and decision.  The approving authority will ensure corrective actions are taken before taking final action to assess financial liability.

	c.  A lawyer other than the one who advised the respondent in the preparation of the respondent's rebuttal statement must perform the legal review required by the approving authority.

	d.  Time constraints for the legal review of a FLIPL are included in the adjudication process.  However, if the legal opinion will take more than 10 days (Active Army) or 40 days (Army National Guard and U.S. Army Reserve), extensions will be granted in 10-day intervals until the legal review is received.  When extensions are granted, the amount of time over 10 days or 40 days will not be included in the calculation of total processing time.

	e.  The approving authority cannot assess financial liability against individuals for the loss or damage to government property if the findings and recommendations are found to be legally insufficient.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  Her supporting evidence has been considered.


2.  Based on the current record, it is unclear whether or not a legal review of the FLIPL was in fact conducted.  However, whether it was never conducted or is simply missing, its absence is not fatal nor does its absence prevent the Board from reaching a reasonable conclusion regarding the legal sufficiency of the property accountability issue presented.  

3.  The holsters and pistolman sets involved in this FLIPL were hand receipted to both the applicant and her supply clerk at the same time and there is conflicting evidence regarding the conversations between the two.  However, based on the statements of disinterested Soldiers, it appears that the items were in fact present in the unit and issued to various individuals in the lead-up to deployment.

4.  While it is clear that supply procedures could have been handled more smoothly, it is also clear that applicant’s status as a member of the ADVON adversely impacted her ability to perform her supervisory duties.  Further, though the FLO recommended the applicant be held financially liable, he also recommended that supply personnel no longer be included as part of the ADVON in future deployments.  This recommendation concedes that the degree of difficulty attendant in maintaining supply discipline is greatly increased in the days immediately prior to deployment and undercuts his determination that the applicant was negligent.    

5.  Taking into account all the facts and circumstances present, it is not clear that applicant failed to provide the degree of care for the property that a reasonably prudent, similarly-situated person would have taken, whether in a direct capacity or supervisory capacity.  Accordingly, she should be relieved of financial liability.   

6.  In view of the foregoing, the applicant's records should be corrected as recommended below.

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 not held financially liable by FLIPL #WSXXXX-RD-21XX-00XX, initiated on 10 July 2012; and

	b.  refunding to her any monies already collected from her as a result of the FLIPL.



      _______ _   _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)                                         AR20130008989



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ABCMR Record of Proceedings (cont)                                         AR20130008989



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