IN THE CASE OF:	  

		BOARD DATE:  4 February 2014

		DOCKET NUMBER:  AR20130009024 


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 the conclusion of the Financial Liability Investigation of Property Loss (FLIPL) (WOU5BL2032xxxxx) that was conducted by the U.S. Army Signal Center of Excellence (SIGCOE), Fort Gordon, GA, and garnished the amount of $4,209.30, be reversed and found not supported by the evidence, and restoration of her entitlement to the garnished pay.

2.  The applicant states that in 2012, after an inordinately lengthy FLIPL, she was found liable for missing computers and other sundry items located at Signal Towers (U.S. Army Signal Center Headquarters building) on Fort Gordon.  This FLIPL is legally insufficient to assess liability for numerous reasons:

	a.  The Approving Authority (SIGCOE Chief of Staff) should have been disqualified from acting in such a role in this case as his actions in dismissing her from her duties and ordering her out of Signal Towers made him a potentially responsible party for the property in question.  The FLIPL as processed placed the Approving Authority in a position to absolve himself from any liability and impose liability solely on her.

	b.  The conclusions of the Financial Liability Officer (FLO) were both legally unsupportable, factually inaccurate, and demonstrated an absolute abrogation of the requirements contained in Army Regulation (AR) 735-5 (Policies and Procedures for Property Accountability).

	c.  The legal review provided to the Appellate Authority does not sufficiently address the legal errors raised in her reconsideration request/appeal.
3.  She further states the Approving Authority in this FLIPL should not have been permitted to act in such a capacity in this matter as his direct involvement made him potentially liable for the lost property in question.

	a.  The facts in question demonstrate that prior to the loss of the property, she was ordered out of Signal Towers (the building where all the property was located) and told she was not allowed to re-enter the building per the order of the FLIPL Approving Authority.  

	b.  The facts enclosed in her request for reconsideration demonstrate by more than a preponderance of the evidence (and certainly at least establish a prima facie case) that she was involuntarily and permanently removed from the building where the property was located at the direction of some higher authority.  The individual responsible for such an order would unequivocally become responsible for the safekeeping of property for which she would have previously been responsible.  It would be a fundamental injustice to require someone to violate an order from a superior in order to maintain property accountability; rather, the individual issuing such an order must bear responsibility for the consequences of their command decisions.

	c.  The information contained in First Sergeant (1SG) J-----n Sc---n's (the 1SG of Headquarters and Headquarters Company (HHC), 15th Regimental Signal Brigade) email alone should have mandated the appointment of a new investigating officer (IO) of sufficient rank to determine if any higher authorities should be liable for the missing property as a result of the order to remove her from Signal Towers.  For reasons unknown, this never occurred.  Rather, the FLIPL continued as initially begun and the Approving Authority approved liability against her, despite the implication that he (the Approving Authority) was responsible for her removal from the location of the property.

	d.  Fundamental fairness and the propriety of the FLIPL system preclude individuals from sitting in judgment of themselves.  Furthermore, a different Approving Authority should have been appointed to avoid even the appearance of bias, as in this case the Approving Authority was responsible for spontaneously banning her from her place of duty and the location of property.

	e.  The appearance of bias further taints this FLIPL when the actions of the Approving Authority are examined in more detail.  The day before her initial rebuttal statement was due her legal assistance attorney contacted the Approving Authority to request a brief extension of only 3 business days.  Considering the fact that this FLIPL investigation had been ongoing for over 6 months, this request was more than reasonable.  The Approving Authority did not reply to his request until July 2012, denying such request citing the lack of "significant level of complexity to this FLIPL" and offering to assist in providing resources to meet the deadline.  This email from the Approving Authority reflects, at best, a shocking lack of attention to detail or, at worst, a lack of candor in that the Approving Authority had already approved liability.  The Board should see the enclosed email traffic between her attorney and Colonel (COL) M--c D. Ha--s, the Chief of Staff and also Approval Authority, and note the date on the approval memorandum.  Not only had the Approval Authority already acted prior to the offer to "call someone if additional support is required," but the Approval Authority made his final decision the exact same day the initial rebuttal was supposed to have been submitted.  Such immediate action, without apparent consultation or legal review, and the factually inaccurate statement to her legal counsel further erodes the appearance of impartiality by the Approving Authority.

4.  She further states that in accordance with the requirements of AR 735-5 the Appellate Authority must receive a written legal review prior to making a final decision.  The legal review in this case contains several errors that should preclude the approval of liability.

	a.  While the legal reviewer agreed with her that the FLO's legal conclusion that she was grossly negligent was in error, they concluded that this had no impact on the assessment of liability.  The failure of the FLO to grasp the fundamental concept of negligence is central to the investigation.  For a FLO to the completely misapply the integral legal standard calls into question the entirety of their conclusions.  For the legal review to concede such a fundamental error and then dismiss it as harmless error is to completely disregard the analysis mandated by AR 735-5.

	b.  The legal reviewer also attempts to explain away the facts presented that she was ordered out of Signal Towers.  As discussed above, this was a central legal issue in this investigation, as a higher authority issuing such an order would potentially be liable for the loss.  The legal review retreats slightly from the FLO's conclusion that "no such order" was issued and instead attempts to "split the baby" by arguing that she was "no longer working in the Towers," but there is "no evidence that she was relieved of her duties with regard to the accountability of the property."  This conclusion represents a disregard of the actual evidence presented.  The email from Ms. P---y Th------n, of the Signal Center Chief Information Officer (CIO)/G-6 Office, and the email from 1SG Sc---n cannot be reconciled with such a position.  The 1SG is explicit that he was told by the Brigade S-3 Sergeant Major that she was not allowed back in Signal Towers.  Ms. P---y Th------n's email is sent at the end of a duty day indicating that she (the applicant) will be changing jobs as of the next duty day.  Such a last-minute announcement of a change in duties is not reflective of a simple administrative decision to move her place of duty, but rather a swift decision to ban her from Signal Towers by a higher authority.  The position adopted in the legal review logically requires one to conclude that the 1SG is making a false statement, which seems unlikely in light of Ms. P---y Th------n’s email and other evidence.

	c.  The legal review also fails to properly assess the facts regarding property inventories.  As part of her reconsideration request, she submitted copies of some of the inventories conducted during her period of property responsibility.  Her submission of these inventories was not an attempt to provide the entirety of records related to the property, but rather to demonstrate that the FLO had not conducted a proper investigation.  The FLO argued there was no evidence she had conducted any inventories, a fact which is demonstrably false as evidenced by the inventories submitted.  Furthermore, Captain (CPT) A--m Ch---e - a funded legal education officer assisting her attorney - personally went to the property book officer and verified that inventories were conducted.  The evidence she presented clearly and demonstrably disproves an integral factual conclusion by the FLO and should render the FLIPL legally insufficient to assess liability.  Nonetheless, both the FLO and the legal review cite the fact that she didn't personally maintain records to prove her "innocence."  Such logic fails even rudimentary scrutiny that the Army does not maintain its official property records in the personal possession of individual Soldiers; rather, these records are maintained in the property book office (PBO).  The FLO in this case obviously did not make an attempt to review records in the PBO.  If he had done so, he would have uncovered records of inventories, as did CPT Ch----e.  To insist that she must produce all of the records of property accountability or face liability is to completely turn the system on its head and make all parties signed for property "guilty until proven innocent."

5.  The applicant provides a DD Form 200 (FLIPL) and allied documents (IO findings, chain of command recommendation, approving authority decision, appeal and denial of appeal, hand receipts, emails, and sworn statements).

CONSIDERATION OF EVIDENCE:

1.  As a matter of clarity and due to the complexity of this case, the following summary of the FLIPL process is from AR 735-5:  

	a.  The FLIPL process starts when the appointing authority, usually a lieutenant colonel (LTC) or above (most often a battalion or squadron commander), appoints a FLO to investigate the facts surrounding the loss.  The FLO will be a commissioned or warrant officer, a noncommissioned officer (NCO) the rank of sergeant first class (SFC), or above or a civilian employee GS-7 or above.  The FLO must be senior in grade to the individual subject to potential liability unless war or military exigency requires otherwise. 

	b.  The FLO investigates and makes initial findings as to what happened.  A copy of those initial findings is then given to the individual subject to potential liability.  That individual has 7 days to prepare and submit a rebuttal back to the FLO.  The person will have 15 days if the findings are mailed to him or her.  The FLO will consider the rebuttal along with the findings and make a recommendation about who should be held liable and in what amount.  The recommendation is made to the appointing authority. 

	c.  The appointing authority reviews the FLIPL, reviews the action taken by the FLO, and either requests further investigation or concurs in the FLO’s findings.  The appointing authority then forwards the FLIPL to the approving authority.  The approving authority, usually a COL or above (most often a brigade or regiment commander or a division or installation chief of staff), approves or disapproves the FLO’s recommendation.  Before making his decision, the approving authority receives a legal opinion that the findings are legally sufficient and that the FLIPL was completed in accordance with AR 735-5.

	d.  To assess liability, the approving authority must find (1) the person to be held liable had a duty/responsibility to take care of the property; (2) the person failed to carry-out that duty (negligence); and (3) the person's failure led to the loss (proximate cause).  The approving authority will notify the person to be charged that financial liability has been assessed.  The notification will be in memorandum format and will inform the person they have the right to request reconsideration of (appeal) the approving authority's decision.

	e.  A person held liable has 30 days to request reconsideration of the approving authority’s decision to assess liability.  The request goes back to the approving authority (the FLO and the appointing authority are not involved).  If the approving authority decides to continue liability, he or she will forward the request to the appeal authority.  The appeal authority, usually a general officer, is the next higher commander in the chain of command.  The appeal authority will examine all of the facts and the recommendations again.  The decision of the appeal authority is final.

2.  The applicant enlisted in the Regular Army on 4 May 1992 and held military occupational specialty 25B (Information Technology Specialist).  She served through multiple reenlistments in a variety of stateside or overseas assignments. She retired on 30 September 2012 and she was placed on the Retired List in her retired rank/grade of SFC/E-7 on 1 October 2012. 

3.  She was assigned as the Command Group NCO in Charge (NCOIC) for the Army SIGCOE and Fort Gordon Command Group.  She oversaw the functions of the Office of the Chief of Staff and was responsible for key control, correspondence, purchase orders, accountability of hardware and software, and maintenance and automation valued at $6M.  She also managed a budget of $68,000 for supply/automation and supervised 8 military personnel. 

4.  Her records do not contain a relief-for-cause NCO Evaluation Report, a letter of reprimand, reassignment orders, suspension of favorable personnel actions, or any derogatory information regarding dismissal from her duties.  However, it appears that in September or October 2011 she may have been reassigned from one position to another and/or was dismissed from her duties in the Signal Towers.  

	a.  According to an email, dated 29 September 2011, from Ms. P---y Th------n, of the CIO/G-6 Office, the applicant "had been released and would report to her office Friday, according to her and LTC K-m Br------aw, then the Deputy Chief of Staff, G-1." 

	b.  According to another email from Mr. W---e Ly--n to COL M--c Ha--s, the Chief of Staff, Mr. Ly-n stated "Request reassignment of [Applicant] to the G-6 office to provide assistance with Enterprise Email Migration, Life Cycle Replacement, and other projects; she is planning on retiring in June 2012."  The Chief of Staff responded with "Negative, she needs to go ahead and focus on her pending retirement."  Mr. Ly-n forwarded the mail to the applicant; the Deputy Chief of Staff, G-1; Mr. R----t Ne-----e; and Ms. P---y Th-----n with the comment "Ladies and Gentlemen, see the Chief of Staff decision below."   

	c.  According to a later email, dated 10 July 2012, from her former 1SG to the legal assistance attorney, CPT A--m Ch---e, she was dismissed and was told to not come back.  She was ordered out of the Towers and she was not allowed to return.  The 1SG understood that the brigade leadership had lost confidence in her abilities to execute her daily duties and told her to find a new job and that she was going to work in the Automation Section for the 15th Regimental Signal Brigade, and she was told to never come back. 

5.  On 6 February 2012, the Chief of Staff, SIGCOE appointed a FLIPL IO in accordance with chapter 13 of AR 735-5 to conduct an investigation into the loss of military property listed on a DD Form 200.  Specifically, the IO's task was to determine whether negligence or willful misconduct was the proximate cause of the loss.  The property in question included Radio Motorola, Micro Cassette Recorder, TV Monitor, Color, Telephone Answering Equipment, and VHS Video Recorder.
6.  The IO submitted a very detailed DD Form 200 that was signed by the IO on 14 March 2012 and by the applicant who indicated she submitted a statement of objection on 14 March 2012.  

7.  On 14 March 2012, by memorandum, the IO notified the applicant that she was being recommended for financial liability to the U.S. Government in the amount of $7,385.98 for the loss of property.  She acknowledged receipt of the memorandum on the same date.  The DD Form 200 states:

	a.  He finished conducting all inventories of hand receipt for Unit Identification Code (UIC) W0U5BL.  The items listed were not found during his inventory.  On 31 November 2011, he submitted a memorandum for record listing all the equipment that was not found prior to this date and his attendance of the Senior Leaders Course from 17 October 2011 to 7 December 2011.  This memorandum was sent to the applicant, the G-4, and the PBO.  On 8 December 2011, he, Mr. R----t N----se, and the applicant finished conducting inventories over at the Retention Office, the Knowledge Management Advisor/Office (KMO), the Quality Assurance Office (QAO), and the Command Group.  He updated the missing items’ hand-receipt, dated 11 December 2011, and sent it to the PBO, the G-4, First Lieutenant (1LT) B----e Jo-s, the applicant, and COL Ha---s (Chief of Staff).  The applicant tried to get Mr. G----e J-----n (an employee at the QAO) to sign his DA Form 2161 (Request for Issue or Turn-in) of all the equipment he had in his possession, and he did the inventory of his equipment, but since he was not present at the time he requested they do it again at the beginning of the year.

	b.  On 18 January 2012, he, Mr. G----e J-----n, and the applicant re-inventoried all the equipment at the QAO.  On 25 January 2012, the applicant sent out all the DA Forms 3161 for QAO to sign.  There were some discrepancies and had to be redone.  The very next day, the G-4 sent out an email saying that the DD Form 200 had to be initiated by 27 January 2012.  He received, fixed, and re-sent all the documents (the missing equipment hand-receipt) on 26 January 2012 to the PBO, the G-4, the applicant, 1LT B----e Jo--s, and Mr. G----e Jh-----n.  On 30 January 2012, he spoke with the applicant and explained to her all the things he had still not seen or that were missing.  He updated his missing equipment hand-receipts for the last time on 31 January 2012.  

	c.  He stayed in contact with the applicant as well as all parties involved throughout the inventory process.  He kept everyone abreast of what equipment was missing.  The purpose of the memorandum for record he authored on 31 October 2011 was to get a snapshot of the missing equipment before he left for school.  After the inventory on 8 December 2011, most of the equipment was found at QAO, but as of the date of this form, over 40 documents are still missing. 
8.  The IO also stated in the DD Form 200: 

	a.  In consideration of the applicant's rebuttal in reference to her being found to be grossly negligent in the loss of property that she was responsible for, he believed that any prudent SFC with 20 years of service would have ensured the equipment was accounted for by the individual who had the equipment.  An individual is taught from the time they enter the Army about accountability and hand receipted equipment.  Any SFC with the time in service as her, using any degree of sense, would have known better.

	b.  Her failure to have anybody sign for equipment is reckless and her wanton means for property accountability is the reason for the loss.  Her inability to show any history of when equipment was issued or when it was turned in spoke volumes on how she accounted for equipment under her responsibility.  While considering that some of the equipment in question could have been removed from the closet as she states when she was supposedly ordered from Signal Towers, with no chain of custody of the equipment leads to his (IO) decision that she doesn't know where or ever knew where the equipment was.  When he started his investigation and started looking for equipment, he immediately found equipment in plain sight such as a large safe that belongs to the Commanding General (CG). 

	c.  The entire time that she was the hand receipt holder for the Command Group since 24 September 2009 she didn't have any hand receipts or turn-in documents to provide a history trail of the movement of equipment.  While excess equipment does not require a hand receipt it is required that all excess equipment be turned in.  The SIGCOE had a clean sweep of all excess equipment in which she had a chance to turn in any excess equipment which she failed to do.  She also failed to add the excess property to the book if she was not going to turn the property in.  During Operation Clean Sweep classes were conducted on the proper procedures to turn in equipment that was on the property book and equipment that was not on the property book. 

	d.  While the amount of the equipment lost was $13,095.71, this amount was reduced to the market value of $7,385.98.  He recommend that [Applicant] be responsible for the entire amount of the $7,385.98.  This amount is reduced to her one month's base pay of$4,209.30.  This adjustment was based off his conclusion that the equipment had no value to the government.  The legacy equipment is not used within the Army now and would have been turned in for disposal instead of being redistributed throughout the Army.  His experience as a DA civilian, which is in the computer field, would justify this decision.  Similar items that were part of his inventory were turned in over four years ago.  Systems that still had value are submitted to the reutilization program for the Department of Defense.

	e.  He examined all the available evidence (shown as exhibits) and determined the total cost of the Government property loss is $8,209.16.  He also stated they were lost through the gross negligence of [Applicant].  [Applicant] negligently issued property without obtaining hand receipts.  The property cannot be located nor can it be determine to whom the property was issued.  Her negligence caused the loss of the property.  The property could not be located and there was no history of accountability documents indicating to whom the property was issued.  Her failure to obtain hand-receipts for the now-missing property, and because it cannot be determined to whom the property was issued, [Applicant's] negligence proximately caused the loss.  Since the listed items were not hand receipted out and the location of the property cannot be determined the applicant should be charged the entire amount of the loss to the Government per AR 735-5, paragraph 5-4b(2).  The IO recommended the applicant not be held financially liable in the amount of $665.97 for items accounted for.  

9.  The DD Form 200 further shows in the Findings and Recommendations block: 

	a.  He had examined all available evidence shown in block 9 of the DD Form 200 and are shown as Exhibits A through G, as indicated on the form.  He personally investigated the same and it is his belief that the articles listed here and on the attached sheets with a total cost of $8,209.16 were lost through gross negligence of the applicant and also the negligence of Mr. G----e Jo-----n.

	b.  The applicant negligently issued property without obtaining hand-receipts. The property cannot be located nor it can be determined to whom the property was issued.  The applicant's negligence caused the loss of the property.  The property cannot be located and there is no history of accountability documents indicating to whom the property was issued.  The applicant's failure to obtain hand-receipts for the now-missing property, and because it cannot be determined to whom the property was issued, the applicant's negligence proximately caused the loss. 

	c.  The listed items value was adjusted in accordance with AR 735-5, paragraph 5-1.  The total cost of the loss after the adjustment is $13,091.71.  Since the listed items were not receipted out and the location of the property cannot be determined, the applicant should be charged the entire amount of loss to the Government, per AR 735-5, paragraph 5-4b(2).  


	d.  The IO recommended the applicant be held financially liable in the amount of $7,398.98 of the total loss of $13,091.71.  She should not be held financially liable in the amount of $4,311.73, since this is the value of items that have no value to the Government and had been replaced with newer equipment in the inventory.  Mr. G----e Jo-----n also negligently disposed of property without obtaining the turn-in documents.  The property cannot be located but the form for coding out the equipment was conducted and processed.  He failed to obtain turn-in documents for the missing equipment and because it cannot be determined to whom the property was turned in, his negligence proximately caused the loss.  

10.  On 13 June 2012, by memorandum through the Chief of Staff, SIGCOE, to the Staff Judge Advocate, the FLO stated: 

	a.  During his investigation, he found the applicant to be financially liable for the loss of equipment under her control in the amount of $7,385.98.  In accordance with AR 635-5, figure 13-8, block 15d, financial liability is normally limited to one month's base pay at the time of loss, or the actual amount of the loss to the Government, whichever is less.  He has recommended that [Applicant] be held responsible for the amount of one month's pay ($4,209.30).

	b.  When conducting the investigation, he had made his findings in accordance with the governing regulations.  As the IO, he is allowed to make his recommendations in regard to the amount of the loss.  He understands that his recommendation is just a recommendation.  He could not recommend that a person be charged more than the loss that occurred, but he could recommend an amount less than the loss.

	c.  [Applicant] asserts that she had 100% accountability of all equipment before she was allegedly ordered to leave Signal Towers.  She could not show at anytime that she conducted inventories.  There were no historical files that showed any evidence that property was controlled.  She didn't have any sub-hand receipts or any periodic inventories during her tenure as the hand receipt holder.  The lack of this evidence led to his conclusion that she did not have a 100% accountability of her equipment.

	d.  She alleged that she was ordered out of Signal Towers by the Chief of Staff, but he found no evidence of such order.  When he questioned her about the order, she informed him (the IO) that this is what she was told.  This led him to ask numerous people if such an order was given and he concluded that this was hearsay and could not be proven.  Regardless of the order it was her job to ensure that she cleared her hand-receipts before leaving the building.  He read her statements and her rebuttal and did not find one statement that says she informed anyone that she must clear her hand-receipt.  He concluded that this was a pattern and that it was now evident that she showed no concern about the equipment that she was responsible for.

	e.  As the IO, he chose to locate the missing equipment that she was responsible for.  He looked in every area that was in her control.  He found a lot of the equipment that was listed as missing on people's desks.  This contributed to his conclusion that no supply discipline was established during her tenure.  He conducted a complete inventory of the tenth floor closet and she didn't have any documentation of what equipment was stored in the closet.  He cannot assume that all the equipment that came up missing was stored in the tenth floor closet.  With no evidence showing what equipment she moved to the closet and since the equipment was very old, he concluded that no control was established once she took the equipment out of service.

	f.  The equipment that was listed under Mr. Jo-----n was not calculated in her cost.  His was a separate recommendation.  He didn't recommend any liability toward him for the missing equipment in his sections because it was legacy equipment.  In order to remain consistent, he did not recommend anyone pay for equipment that had no value to the government at the time of the loss.  

	g.  After careful consideration, he concluded that any prudent SFC with 20 years of experience would have had better control measures in place.  Regardless if she received or did not receive orders, as a senior NCO in the Army it is her responsibility to act in the absence of orders.  It was her responsibility to conduct an inventory before she left the building.

11.  On 21 June 2012, by memorandum, the IO notified the applicant that she was being recommended for financial liability to the U.S. Government in the amount of $7,385.98 for the loss of government property investigated under subject investigation of property loss.  He also advised her if the approval authority approves this recommendation, she would be held financially liable for the loss.  She acknowledged receipt.

12.  On 28 June 2012, by memorandum, the Chief of Staff, SIGCOE, notified the applicant that an approved charge of financial liability had been assessed against her by the U.S. Government in the amount of $4,209.30 for the loss of Government property.  He advised her of her rights.  

13.  On 29 June 2012, a legal assistance officer submitted a memorandum for record.  He titled it "Legal Assistance Factual Investigation - [Applicant].  He stated: 

	a.  Summary of Investigative Efforts:  On 19 June 2011, he received the FLIPL packet number WOU5BL2032xxxxx and began assisting in her rebuttal.  On 22 June, he discovered an unsigned sworn statement purportedly from Mr.  R----t Ne---e, in the packet.  It had a sticky note stating "Do not include" on it, and was not mentioned in the FLIPL investigation.  He conducted phone interviews with Mr. R----t Ne----e, Ms. P---y Th-----n (CIO/G-6 Office), 1LT B---e Jo--s , Mr. R---r Wy--n, and SFC R-----d L. Ed----s (NCOIC Command Group).  He attempted to reach Mr. W---e L---n and LTC K-m Bu----w (Retired) through email and phone, but was unsuccessful.  He spoke with Ms. M----n L-e at the Installation PBO Supply and Services Division and obtained copies of [Applicant's] quarterly inventories.  He also acquired an email from Ms. P---y    Th-----n on dated 29 September 2011 and [Applicant's] DA Form 31 (Request and Authority for Leave) for convalescent leave from 20 July 2011 to 20 August 2011.  

	b.  Timelines of Events:  [Applicant] was the Primary Hand-Receipt Holder for two Property Books, WOU5BL and WOU5CB.  In February and March of 2011 she conducted a 100% inventory, followed by quarterly inventories in June and September 2011.  From 20 July 2011 to 20 August 2011, she was on convalescent leave.  When she returned at the end of August, she began changeover inventories.  At the end of September 2011, she was allegedly ordered out of Signal Towers, and on 30 September she reported to G-6 in Nelson Hall on one day's notice before inventories were complete.  SFC R-----d L. Ed----s, the Command Group NCOIC, continued the inventories on his own until he initiated the present FLIPL on 31 January 2012 and signed for the property at the PBO on 1 February 2012.

	c.  Order out of the Towers:  There is significant circumstantial evidence that she was in fact ordered out of Signal Towers at the end of September 2011, prior to the completion of hand receipt inventories.  In phone interviews conducted between June 25 and 28 September, Mr. R----t Ne----e, Ms. P---y Th-----n, 1LT B----e Jo---s, Mr. R---r Wy--n, and SFC Ed----s all stated that they had heard rumors of the applicant being ordered to leave the Towers.  Mr. Ne------e and Ms. Th-----n were interviewed by the IO and offered to give statements to that effect, but were not followed up with.  The unsigned sworn statement that was included in the packet stated that Mr. Ne---e had heard of the order directly from Mr. W---e Ly--n, who was never interviewed.  Other individuals who were identified in the investigation and might have more specific knowledge of the incident, such as Mr. W---e Ly--n and LTC K-m  Bu-----w (Retired), did not give a sworn statement at all.   His office was able to identify an email from Ms. P---y Th----n dated 29 September 2011 stating that the applicant was "released" on short notice from the Towers per LTC Bu------w, and would report to Nelson Hall the following day. It was such short notice that they had to scramble to find work for her.
	d.  Inventories:  [Applicant] did conduct her required cyclic and sensitive items inventories per the Installation PBO.  Quarterly 100% special inventories and 25% cyclic, along with semi­annual 100% inventories were done and were on file at the PBO.  The last 100% inventory was signed on 11 February 2011 and 4 March 2011, at which time all of the missing equipment was accounted for. She also conducted her 3rd quarter inventories in June 2011.  Her last inventory, 4th quarter 2011, was completed and signed on 30 September 2011.  The PBO was never notified that there was changeover in progress and SFC Ed----s never came in for the required handover brief, so the property books were not frozen and the 1st quarter 2012 inventories were not exempted or completed by 
31 December 2011. 

	e.   Command Responsibility. There was no property accountability oversight on the part of the command.  The changeover inventories began at the end of August 2011.  Under DA Pamphlet 710-2-1 (Using Unit Supply System (Manual Procedures)) inventories must be completed within 30 days.  SFC Ed----s did not sign for the property until 1 February 2012, almost 6 months later.  The supervisor point of contact listed at the PBO for all directorate hand receipts was the G-4 who had no command authority over the directorate hand receipt holders.  The G-4 was only notified of a problem if an inventory was missed, at which point their only course of action was to email the hand receipt holder's supervisor.  The HHC Commander has no oversight of the property in the Towers, and there is no other company commander that would fulfill his duties.  The supervisor for the applicant was a 1LT who was already dual-hatted as ADC and Secretary of the General Staff (SGS), and had no oversight on property book accountability.

14.  On 27 July 2012, the legal assistance attorney appealed the decision of financial liability by submitting a request for reconsideration to the next higher authority.  He contended that the financial liability of $4,209.30 levied against the applicant should be disapproved because the financial liability investigation was legally insufficient in several material aspects:

* The FLO's conclusion that the applicant exhibited gross negligence lacks the proper legal foundation to justify such a finding
* The FLIPL's legal conclusions about liability are based on numerous material findings of fact that are either demonstrated false or at best highly improbable
* The FLIPL is incomplete in accordance with AR 735-5, paragraph 13-38 regarding the requirement for a written legal review
* The FLO failed to properly apply the principles of valuation dictated in AR 735-5

15.  On 10 August 2012, the CG, SIGCOE, forwarded the FLIPL for a legal review.  He stated that the applicant had requested a reconsideration of the approving authority's assessment of financial liability in the amount of $4,209.30. The approving authority had determined that the assessment of financial liability should continue. 

16.  On 26 October 2012, the CG, SIGCOE, notified the applicant that her request for reconsideration of the approving authority's assessment of financial liability in the amount of $4,209.30 had been reviewed and is denied.  The decision is final and further requests for reconsideration would not be allowed.   

17.  On 31 October 2012, the Chief of Staff, SIGCOE, notified the applicant that the Appeal Authority denied her request for relief from financial liability in the amount of $4209.30.  She was advised of her rights to: request remission or cancellation of debt; request an extension of the collection period, or submit an application to this Board.

18.  An advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-4, on 11 September 2013 in the processing of this case.  The advisory official recommended the applicant be given relief.  He stated: 

	a.  The application for relief of financial liability in regard to the FLIPL initiated against the applicant is being returned with the recommendation that the financial liability assessed be reversed; reimbursement of $4209.30, or all monies deducted from her pay as a result of this FLIPL; and correction of her records.

	b.  The FLIPL officer did not establish culpability as required by the standards of AR 735-5, paragraph 13-29 (28 February 2005).  Before a person can be held financially liable, the facts must show that he or she, through negligence or willful misconduct, violated a particular duty involving the care of the property.  The applicant was given the order to leave her place of duty and "never return" by her leadership.  This order was validated by the Company 1SG.  This led to applicant not having physical custody and control of the equipment she was responsible for.  

	c.  The FLIPL officer states that through ''Gross negligence" [Applicant] issued property without obtaining hand receipts.  In accordance with the standards of AR 735-5 (28 February 2005), "Gross negligence is accompanied by a reckless, deliberate, or wanton disregard for the foreseeable loss or damage to the property."  Gross negligence was not established within the guidelines of AR 735-5 by the FLIPL Officer.  The applicant was ordered to leave her place of duty prior to completion of the joint inventory between her and her replacement.  In accordance with DA Pamphlet 710-2-1, paragraph 9-3, "30 days will be allotted to conduct the joint inventory."  

19.  The applicant was provided with a copy of this advisory opinion on 27 September 2013 but she did not respond within the allotted time. 

20.  AR 710-2 (Supply Policy Below the National Level) prescribes policy for supply operations below the national level.  Appendix B implements the Command Supply Discipline Program (CSDP).  It states the CSDP is a commander's program and that commanders will implement the CSDP by using their existing resources.  It further provides program guidance that includes enforcement of supply discipline methods, administrative measures, disciplinary measures, reaction to incidents of nonfinancial liability, and ensuring supply discipline and management controls.  

21.  AR 735-5 prescribes the basic policies and procedures in accounting for Army property and sets the requirements for formal property accounting within the Army, which includes but is not limited to defining the CSDP, its intent, and implementing procedures.  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.  

22.  AR 735-5 defines the following terms:

	a.  Negligence – The failure to act as a reasonably prudent person would have acted under similar circumstances.  An act or omission that a reasonably prudent person would not have committed, or omitted, under similar circumstances and which is the proximate cause of the loss of, damage to, or destruction of Government property.  Failure to comply with existing laws, regulations, and/or procedures may be considered as evidence of negligence.

	b.  Proximate Cause – The 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.  It is further defined as the primary moving cause, or the predominant cause, from which the loss or damage followed as a natural, direct, and immediate consequence.

23.  Chapter 13 of AR 735-5 states that the purpose of a financial liability investigation of property loss documents the circumstances concerning the loss or damage of Government property and serves as, or supports, a voucher for adjusting the property from accountable records.  It also documents a charge of financial liability assessed against an individual or entity, or provides for the relief from financial liability.  Chapter 13 also states:
	a.  A financial liability officer’s responsibility is to determine the cause and value of the loss or damage of Government property listed on the DD Form 200, and to determine if assessment of financial liability is warranted.  That determination must be determined from the facts developed during a thorough and impartial investigation.  However, before beginning the investigation the financial liability officer must have an understanding of the terms "responsibility, culpability, proximate cause, and loss"; each term impacts upon a determination of financial liability.  Individuals may be held financially liable for the loss or damage of Government property if they were negligent or have committed willful misconduct, and their negligence or willful misconduct is the proximate cause of that loss or damage. 

		(1)  Responsibility.  General responsibility: The type of responsibility a person has for property determines the obligations incurred by that individual for the property.  DA Pam 735–5 presents specific issues the financial liability officer must consider before recommending financial liability.   There are five types of responsibility: Command, Supervisory, Direct, Personal, and Custodial. 

		(2)  Culpability:  Before a person can be held financially liable, the facts must show that they, through negligence or willful misconduct, violated a particular responsibility or duty involving the property.  Simple negligence is the absence of due care, by an act or omission of a person which lacks that degree of care for the property that a reasonably prudent person would have taken under similar circumstances, to avoid the loss or damage of Government property.  Gross negligence is an extreme departure from due care resulting from an act or omission of a person accountable or responsible for Government property which falls far short of that degree of care for the property that a reasonably prudent person would have taken under similar circumstances.  It is accompanied by a reckless, deliberate, or wanton disregard for the foreseeable loss or damage to the property.  Whether a person’s acts or omissions constitute negligence depends on the circumstances of each case.  Negligence under some circumstances may not reflect negligence under other circumstances.  Therefore, fully consider the following factors, as a minimum, when determining the reasonableness of a person’s conduct: the person’s age, experience, physical condition, and special qualifications; the type of responsibility the person had toward the property; the type and nature of the property; the nature, complexity, level of danger, or urgency of the activity ongoing at the time of the loss or damage of the property; the adequacy of supervisory measures or guidance for property control; the feasibility of maintaining close supervision over the property, given the nature and complexity of the organization or activity supervised; and/or the extent supervision could influence the situation considering pressing duties or lack of qualified assistants.  Willful misconduct is any intentional wrongful or unlawful act or omission relating to Government property.
		(3)  Proximate Cause:  Before holding a person financially liable for a loss to the Government, the facts must clearly show that the person’s conduct was the “proximate” cause of the loss or damage.  That is, the person’s acts or omissions were the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the loss or damage, and without which the loss/damage would not have occurred.

		(4)  Loss:  Before holding a person financially liable for a loss to the Government, the facts must clearly show that the person’s conduct was the "proximate" cause of the loss or damage.  That is, the person’s acts or omissions were the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the loss or damage, and without which the loss or damage would not have occurred.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks relief from financial liability imposed against her by FLIPL Number WOU5BL2032xxxxx.

2.  The applicant was the Command Group NCOIC for the SIGCOE at Fort Gordon, GA.  An investigation determined the applicant to be financially liable for the loss of equipment under her control in the amount of $7,385.98.  By regulation, financial liability is normally limited to one month's base pay at the time of loss, or the actual amount of the loss to the Government, whichever is less.  Therefore, a recommendation was made to hold her responsible for the amount one month's pay ($4,209.30).

3.  The ABCMR is not an investigate agency.  Furthermore, absent the complete facts and circumstances, the ABCMR does not normally reexamine issues of financial liability.  This is the IO's and Approving Authority's function and it will not be upset by the ABCMR unless the determination is clearly unsupported by the evidence.  The applicant in this case was advised of the loss, given an opportunity to submit a rebuttal and, with legal representation, she did so.  Her rebuttal was considered and the Approving Authority concluded she was financially liable.  

4.  Furthermore, once the approving authority rendered his decision, the applicant was advised of her options to avoid losing pay.  These options included the right to request remission or cancellation of the debt, to request an extension of the collection, or to petition this Board to reverse the chain of command action. She was also afforded the opportunity to appeal the decision to the next higher commander and again with legal representation, she did so.  The appellate authority ultimately denied her request.  
5.  From a regulatory standpoint, there is no error in her case.  All requirements of the governing regulation were met and her rights were fully protected.  As for her arguments: 

	a.  There is nothing in the governing regulation that disqualified the Approving Authority (the Chief of Staff) from acting in such a role in this case.  His alleged actions of dismissing her did not make him a potentially responsible party for the property in question.  The issue of dismissal is not proven in her case.  The email, dated 29 September 2011, from the Chief of Staff to not reassign her contradicts the much later email, submitted by her former 1SG on 10 July 2012, wherein the 1SG stated he understood that the brigade leadership had lost confidence in her abilities to execute her daily duties and told her to find a new job and that she was going to work in the Automation Section for the 15th Regimental Signal Brigade, and she was told to never come back. 

	b.  But even if she had been reassigned or told to work somewhere else, regardless of the order, it was her job to ensure that she cleared her hand-receipts before leaving the building.  She had a supervisory, personal, and custodial responsibility for the equipment and as a Soldier, leader, and senior NCO, she was responsible for the accountability of the equipment she was entrusted in.  

	c.  Her contention that the conclusions of the FLO were both legally unsupportable, factually inaccurate, and demonstrated an absolute abrogation of the requirements contained in AR 735-5 is a general and speculative statement. She does not state what provision of the regulation was not followed.  Likewise, she does not state what law was violated and made the IO's conclusions "legally unsupportable." 

	d.  Her contention that the legal review provided to the Appellate Authority did not sufficiently address the legal errors raised in her reconsideration request/appeal is rejected.  The word "sufficiently" means "being what is needed without being in excess."  Her dissatisfaction with the outcome of her appeal to the next higher authority does not equate to a legal insufficiency.  She has neither stated where the legal insufficiency lies nor proven it even existed. 

6.  From an equity standpoint, individuals may be held financially liable for the loss or damage of Government property if they were negligent or have committed willful misconduct, and their negligence or willful misconduct is the proximate cause of that loss or damage.  There are four elements that must be evaluated and each element impacts the determination of financial liability: 

	a.  The elements of "responsibility" and "loss" have been clearly established.  The IO found there was equipment loss and she was responsible for the equipment.  

	b.  The element of "Proximate Cause" has also been established.  The IO established she negligently issued property without obtaining hand-receipts.  The property cannot be located nor it can be determined to whom the property was issued.  Her negligence caused the loss of the property.  The property cannot be located and there is no history of accountability documents indicating to whom the property was issued.  The applicant's failure to obtain hand-receipts for the now-missing property, and because it cannot be determined to whom the property was issued to, the applicant's negligence proximately caused the loss. 

	c.  As for the element of "Culpability”: 

		(1)   Before a person can be held financially liable, the facts must show the person, through negligence or willful misconduct, violated a particular responsibility or duty involving the property.  

		(2)  Contrary to her argument and notwithstanding the favorable advisory opinion, there insufficient evidence to confirm she was given an order to leave her place of duty.  There are no reassignment orders, relief-for-cause evaluation report, a memorandum of reprimand, or an attachment order that confirm she was given such order.  But even if she had been given such order, this did not relieve her from her responsibility to complete an inventory and account for her equipment.  By her own admission, she had previously conducted several inventories.  She knew or should have known the implications of not clearing her hand-receipts.  

		(3)  While it is true that she and the replacement NCOIC did not conduct a joint inventory within 30 days, it appears the replacement NCO was attending the Senior Leaders Course from 17 October 2011 to 3 January 2012.  She remained accountable for the property.  

		(4)  Any prudent NCO with 20 years of experience would have had better control measures in place regarding equipment.  Regardless if she received or did not receive orders, as a senior NCO in the Army it is her responsibility to act in the absence of orders.  It was her responsibility to conduct an inventory before she left the building.  She did not do so and as a result, the Government lost property.  This happened on her watch and while she was in charge. 


7.  After a comprehensive review of the applicant's case, notwithstanding the favorable G-4 opinion, the applicant is not entitled to 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)                                         AR20130009024



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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