IN THE CASE OF:	

		BOARD DATE:	    11 February 2014

		DOCKET NUMBER:  AR20130010850 


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 deprived of the opportunity to fully exercise his rights to appeal the Financial Responsibility Investigation into Property Loss (FLIPL).  He kept getting new legal advisors because of transfers.  He contends the lengthy drawn out process, in and of the itself, is an injustice.  He created his rebuttal to the finding of financial responsibility about 16 October 2008 and heard nothing until the Defense Finance and Accounting Service (DFAS) letter of July 2012.

3.  The applicant provides copies of:

* Memorandum for Military Pay Office, dated 3 June 2010
* Legal Review, dated 23 June 2010
* Memorandum for applicant, dated 12 March 2010
* Memorandum for applicant, dated 25 June 2010
* DFAS letter to applicant dated 29 July 2012
* DFAS Indebtedness Claim, dated 30 July 2012
* Memorandum for DFAS, dated 20 June 2013
* DFAS Certificate for Income Tax Adjustment





CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 June 2000.  He completed training, including basic airborne training and military occupational specialty (MOS) training as a unit supply specialist.

2.  On 13 November 2006, the applicant, then a specialist (E-4), reported to the 10th Special Forces Group in Germany.  He assumed duties as supply sergeant for A Company, 1st Battalion in September or October 2006 after the former supply sergeant, SGT M____, was removed for cause.  

3.  The applicant was promoted to sergeant (E-5) on 1 March 2007.

4.  On 3 October 2008, the applicant was counseled about failure to obey a direct order, failure to comply with Army regulations, and failure to maintain accountability.  

5.  On 9 October 2008, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for two specifications of willful disobedience of a 26 August 2008 order of a warrant officer to have the rear property book ready for inventory and ready to sign and one specification of making a false official statement to the effect that the property book was ready. 

6.  The applicant was discharged, on 10 November 2008, with an honorable discharge due to the completion of required service.

7.  On 10 July 2009, the 1st Battalion Commander appointed Major (MAJ) F____ to be the investigating officer (IO) to conduct a FLIPL investigation under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  He was directed to determine the facts and circumstances surrounding the suspected loss of accountability discovered in A Company, 1st Battalion, 10th Special Forces Group (A) during redeployment inventories in the fall and winter of 2008.

8.  A 15 August 2009 email message from the IO inquired as to whether Master Sergeant (MSG) C____ held or had any knowledge concerning a Garmin Etrex (global positioning system (GPS)) unit that he had hand receipted for on 11 December 2006.  MSG C____ responded that he had turned in his personal equipment when he returned from Afghanistan in December 2006 and knew nothing about the Garmin.

9.  On 16 October 2009, the applicant was notified by email that he was suspected of criminal conduct.  He invoked his rights to counsel and to remain silent.

10.  The IO's 24 November 2009 initial report (FLIPL #r 09-0011, dated 22 August 2009) shows he was appointed in October 2008 to examine shortages from an August change of command inventory that totaled over $1 million.  Due to the majority of the company being deployed the investigation really didn't get started until December.  It also reports that:

	a.  MAJ B____ assumed command on 20 July 2007 while most of the company was deployed to Africa.  Due to difficulties in returning from Africa, most
of the company's equipment was not available until MAJ B____ had been in command for over 30 days, making him the de-facto custodian.

	b.  MAJ B____ , in a sworn statement, related that, "…during deployment to Afghanistan from April to December 2008 it became apparent that (the applicant) had created a commander/supply sergeant hand receipt to which he secretly transferred equipment he was unable to account for…MAJ B____ was unaware of these 'ghost' hand receipts…and conducted his 100% inventory without checking the status of the items…the property was unaccounted for at the beginning….first by the mission driven deviation…from ordinary…procedures and then by the actions of the applicant..."

	c.  In July 2008, the applicant received a negative noncommissioned officer (NCO) evaluation report and was sent home from Afghanistan and SGT W___-G____ replaced him as the company supply sergeant.

	d.  In August 2008, accountability was reestablished for over 20 previously un-accounted for items.  The IO relates, "…Since the property accountability issues…began the company has deployed to Africa, returned to Germany, deployed to Afghanistan…returned and deployed (again)…as well as supported several dozen smaller elements in Africa and Europe…Each of these add an additional layer of complexity to the puzzle…"  Ultimately, no documentation could be found on 14 items worth $8541 (these included three pairs of binoculars which had no serial number).”

	e.  He concluded:

(1)  "MAJ B____ attempted, within the constraints of physical separation…to account for the government property under his charge.  MAJ B____'s effectiveness at this task was hindered by a succession of supply sergeants who were not capable…my interpretation of the evidence is that the applicant withheld this information from the commander in the hopes that he would be able to re-locate missing equipment over time."

(2)  "Once the problems…were identified…the chain of command took action…"

(3)  Concerning the undocumented items, he had no way of determining when or how they were lost.  "…They may have been missing since the company mission to Africa that experienced documented difficulties to get equipment out of Mali but (went) unreported by the individuals…They may be unaccountable due to SGT M____, or even SGT W____-G____..."

	f.  The IO presented the following specific findings and recommendations regarding the applicant's activities:

		(1)  "…there was a 'ghost' hand receipt which proves a failure to accurately track property, but does not shed light on the specific events surrounding the loss of any particular item, or even prove that (the applicant) proximately caused the items to be lost from accountability…I cannot determine negligence on the part of any one individual…"

		(2)  The IO recommended that the applicant be held liable for "$0.00" and noted that he had already received a negative evaluation and an NJP.  He also recommended that elimination from the Army be considered.

	g.  The IO offered as a general recommendation, "that personnel serving as supply sergeants in 1/10 SFG (A) be of the grade of E-6 or higher at the company level and must have prior experience with SOF units when possible."

11.  In a preliminary legal review, dated 4 December 2009, the Battalion Staff Judge Advocate (SJA) concluded that sufficient evidence supports the finding.  He also noted that the IO was, by then, the company commander which suggested a possible conflict of interest, but acknowledged that none was apparent.  Finally, the SJA noted that the IO's findings and recommendations were not binding on the approval authority, but recommended approval. 

12.  The battalion commander recommended approval of the IO's findings and recommendations.




13.  A 17 February 2010 legal review by the 10th Special Forces Group's SJA:

	a.  noted that to be financially liable the applicant had to :

* have had some responsibility
* been negligent in act or omission of meeting that responsibility 
* caused (by said negligence) the loss

	b.  observed that the applicant had created a fraudulent property book and that this unreasonable action had concealed the need to search for the missing property until December 2008;

	c.  recommended the applicant be held financially liable for 75 percent of the loss which amounted to $6405.75; and

	d.  noted that, if the applicant were held financially liable, the investigation report must be returned to the IO for compliance with the provisions of Army Regulation 735-5 that provided the applicant with an additional chance to submit matters in rebuttal.

14.  The applicant was notified, in a 25 June 2010 memorandum from the Commander, 10th Special Forces Group, that he was being held financially liable for $2135.40 for  the loss of government property.  The applicant is identified as being with A Company, 1st Battalion, 10th Special Forces Group.

15.  On 15 October 2010 the applicant's assigned military counsel submitted a request that the Commander, 10th Special Forces Group reconsider his decision to asses financial responsibility against the applicant.  He briefly noted the exculpatory information from the IO's report and concluded that, '…no assessment of financial responsibility against (the applicant) can survive scrutiny by higher authority."  He then exhaustedly recapitulated the evidence and arguments that led to the approving authority’s actions.  In particular he noted:

	a.  that, "…CPT Marcus M____, a JA officer with the Group Judge Advocate, disagreed with the IO, CPT H____, (the IO's appointed legal advisor) and LTC T____ (battalion commander) in a short memorandum of less than one and a half pages, only 5 lines of which analyzed (the applicant's) liability concluded that 
(the applicant) as a supply sergeant had direct responsibility for the property on his hand receipts.  CPT M____ did not examine or address the evidence (or lack thereof) relating to the circumstance or the fact that (the applicant) was not (actually) the supply sergeant until September 2007…or the ultimate requirement that (the applicant's) actions constitute the proximate cause of the loss…CPT M____ opined that (the applicant's) 'unreasonable actions led to the belief that there was no need to search…despite there being no evidence that all personnel held this belief…"

	b.  applicant's counsel went on to detail the technical deficiencies in the approving authority’s handling of both the original assignment of financial liability against the applicant and in the handling of the applicant's request for reconsideration;

	c.  he also pointed out that Army Regulation 735-5  required a showing of either negligence or willful misconduct.

	d.  counsel noted that the IO had indicated that his own investigation was hampered by the operational tempo and that while deployed the applicant had no control of the items that were later determined to be missing.

	e.  finally, counsel noted that the IO had observed that, "…the 'cause' of the losses cannot possibly be determined."

16.  A 24 May 2012 memorandum from DFAS informed the applicant that he owed $2134.90.

17.  During the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff of the Army, G-4.  The Acting Director of Supply concluded that, "Full administrative relief is not appropriate in this case.”  

18.  A copy of the advisory was provided to the applicant for his response and/or comment.  No response has been received.  

19.  Army Regulation 735-5 (Property Accounting Policies) prescribes the basic policies and procedures in accounting for Army property and sets the requirements for formal property accounting within the Army.  Specifically it provides in paragraph 13–29 that:

	a.  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, the following factors at a minimum must be considered 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, damage or destruction (LDD) 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
* The extent supervision could influence the situation considering pressing duties or lack of qualified assistants

	b.  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 LDD.  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 LDD, and without which the LDD would not have occurred.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his record to show he was not legally liable for the loss of Government property at Company A, 1st Battalion, 10th Special Forces Group.

2.  The IO was not appointed until July 2009 and related that he was unable to make significant progress with the investigation before December 2009.  However, in October 2008 the applicant was counseled and received NJP, but that was for not having the property book ready for inspection and saying that it was when it wasn't.  

3.  The IO related that since the property losses started Company A had deployed to Africa, returned to Germany, deployed to Afghanistan, returned, deployed  again and supported dozens of smaller elements in Africa and 
Europe.  He noted that each movement added an additional layer of complexity to the puzzle.  He concluded:

* no documentation could be found on 14 items worth $8541 (these included three pair of binoculars which had no serial number)
* accounting for the government was hindered by a succession of supply sergeants who were not capable
* the evidence is that (the applicant) withheld this information (on the Ghost receipt book) from the commander in the hopes that he would be able to re-locate missing equipment over time
* there was no way of determining when or how any given item or accountability for it was lost
* items may have been missing since the company mission to Africa that experienced documented difficulties to get equipment out of Mali but (went) unreported by the individuals
* they may be unaccountable due to the sergeant the applicant relieved or even the one who relieved him

4.  The IO further concluded:

* the ghost hand receipt book proved a failure to accurately track property, but neither shed any light the loss of any particular item, nor proved the applicant proximately caused the loss from accountability
* he could not determine negligence on the part of any one individual

5.  The IO recommended that the applicant not be held financially liable, but essentially concluded that he was not blameless by noting that he had already received a negative evaluation and an NJP and the IO suggested elimination be considered.  He also recommended that only experienced supply sergeants in pay grade E-6 or higher and with Special Forces experience be assigned to such positions.

6.  The appointing authority, battalion SJA, and battalion commander recommended approval of the IO's findings and recommendations.
 
7.  The 10th Special Forces Group's SJA concluded that the applicant had caused the loss and that the applicant's "fraudulent property book" had concealed the need to search for the missing property.  The group commander agreed and assigned financial responsibility to the applicant. 

8.  The governing directive, Army Regulation 735-5, explains that a determination of liability must consider approximately a dozen different factors in determining negligence.  Having determined negligence then a liability determination that said negligence is the proximate cause (the person’s acts or omissions without which the loss would not have occurred) is required.  There is no available evidence that the group commander considered any of these factors.  

9.  The IO, who spent months investigating the facts and circumstances, concluded that no such determination was possible.

10.  While it is unclear who was the proximate cause of the Government's loss, it is crystal clear the applicant was deprived of his due process rights in defending himself against such an allegation.  First, he was relieved of liability.  Then, he was found liable some two years later.  Next, his appeal went without response for another two years.  This flip-flop and delay eviscerated his ability to effectively respond.  Accordingly relief from all liability is appropriate. 

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 showing that the applicant was not financially liable for the loss of any government property at Company A, 1st Battalion, 10th Special Forces Group and that any funds paid or forfeited by him as a result of FLIPL 09-0011, dated 22 August 2009 be refunded. 




      _______ _  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)                                         AR20130010850



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ABCMR Record of Proceedings (cont)                                         AR20130010850



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