IN THE CASE OF:	  

		BOARD DATE:  18 February 2014

		DOCKET NUMBER:  AR20130013609 


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, in effect, that the finding of financial liability for the loss of government property made against him in Financial Liability Investigation of Property Loss (FLIPL) Numbers WZ1AA-xx-xxx, WZ1AA-xx-xxx-x, and WZ1AA-xx-xxx be reversed.

2.  The applicant states he was found liable for $7,121.90 after a FLIPL investigation was conducted.  He submitted a reconsideration based on FLIPL exhibits found during the FLIPL investigation revealing that the Headquarters and Headquarters Company (HHC) supply custodian, Sergeant First Class (SFC) PM, 402nd Civil Affairs Battalion (CA Bn), S4, provided false information to him in regard to inventories.  Also, the storage building was found unsecure on several occasions by [full-time] Active Guard Reserve (AGR) personnel and no action was taken to secure the equipment held in that building.  His rebuttal and evidence were not taken into full consideration during the course of the investigation nor the reconsideration.

3.  The applicant provides:

* an index listing 10 exhibits (sworn statements and hand receipt)
* three DD Forms 200 (FLIPL)
* investigating officer (IO) appointment memorandum
* notification of recommendation for assessment of liability
* rebuttal statement 
* FLIPL legal review
* notification of approved charge of financial liability
CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the U.S. Army Reserve as a major (MAJ).  At the time the FLIPL was initiated he was commanding HHC, 402nd CA Bn.

2.  On 4 March 2012, the applicant completed a sworn statement indicating that on 10 January 2012 he was notified by the incoming supply sergeant that after he did the 100 percent inventory of HHC, 402nd CA Bn property there were some missing items.  Before assuming command of the unit he along with the outgoing supply sergeant conducted a change of command inventory and every item was accounted for.  MAJ LP found building 1307 totally unsecured on several occasions.  While attempting to locate some of the missing items Staff Sergeant (SSG) AES and the applicant found six lensatic compasses inside an unsecured drawer without the proper hand receipt.

3.  Three FLIPLs were initiated in May to July 2012 as a result of discrepancies following a 100 percent inventory of the unit's equipment.  These 3 FLIPL's were combined together as one FLIPL for purposes of investigation and liability as all 3 were from the same unit and same timeframe.  These FLIPLs show numerous missing magnetic compasses, modular sleep systems, parkas, barracks bags, elbow pads, helmet covers, field packs, spectacles, goggles, entrenching tools, binoculars, and other equipment.  The total cost of the unaccounted for equipment was $176,207.15.

4.  On 5 September 2012, Lieutenant Colonel (LTC) CMJ was appointed the FLIPL IO pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) and Army Regulation 735-5 (Policies and Procedures for Property Accountability), to conduct an informal investigation of the circumstances connected with the loss, damage, or destruction of the property listed on the subject financial liability investigations of property loss and to determine responsibility for the loss, damage, or destruction of said property.

5.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows the IO completed the IO Report on 18 October 2012.  The IO stated that based on the preponderance of evidence, it was his belief the missing items were lost as a result of simple negligence on the part of the applicant due to the following evidence:

* applicant had the command responsibility to provide for proper custody, safekeeping, and disposition of the missing property
* he failed to meet command responsibility by not ensuring each item was present when conducting his inventories and by signing for the property
* the missing items were signed for by the applicant after he assumed command on 6 March 2011
* also sworn statements exhibits A and G
   
6.  The IO stated he found that the applicant's acts or omissions were the proximate cause of the loss: first by signing for the missing property on 25 August 2011, then neglecting to sub-hand receipt the excess property to other Soldiers within the company, and not tasking another Soldier to take over the custodial responsibilities for the property during the period from August to December 2011 in which HHC had no AGR supply sergeant assigned due to a permanent change of station (PCS) lapse.  He recommended that:

   a.  The battalion conduct formal command and supply discipline and accountability training for all Soldiers with a focus on leaders to ensure everyone understood their responsibilities; and
   
   b.  The applicant be held financially liable in the amount of $7,161.30 and all others be relieved from accountability and responsibility for the missing items.  The total cost of the loss was $176,207.15.

7.  On 9 September 2012, the applicant indicated in a sworn statement that:

* when he assumed command and the unit moved to building 1302 all property was moved to and stored in building 1302 except for the equipment remaining in building 1307 due to space constraints in building 1302
* building 1307 was found unsecure on several occasions
* SFC PM was directed to assume responsibilities for HHC supply until the incoming HHC Supply Sergeant arrived at the unit
* SFC PM was also instructed to conduct a handover with the outgoing supply sergeant, but it never took place because SFC PM took 30 days of leave upon arriving in Puerto Rico

8.  He provides a copy of an organization property hand receipt signed by him on 26 August 2011.

9.  He provides several sworn statements regarding the HHC inventory and missing items.

	a.  On 6 April 2012, Sergeant (SGT) LMPB stated in a sworn statement that he had secured some items that HHC was unable to account for.

	b.  On 7 September 2012, SSG LMR (the previous HHC Supply Sergeant) stated that prior to his PCS departure on 13 August 2011 a 100 percent inventory was conducted with the HHC Commander (the applicant).  All equipment was accounted for.

	c.  On 8 September 2012, SSG AES, the AGR incoming HHC Supply Sergeant, indicated a 100 percent inventory was completed upon his assignment to HHC, 402nd CA Bn.  After contacting the previous supply sergeant (SSG LMR) and other personnel for assistance he concluded since he could not physically locate any of those property items, nor was he given any supporting documents showing the status of the missing equipment, he initiated a FLIPL to reflect those missing items.  He briefly discussed the missing items with the applicant and battalion commander before he initiated the FLIPL to reflect his findings from the 100 percent inventory of organization property.

	d.  On 8 September 2012, SSG AES completed a second sworn statement wherein he stated that after he arrived at the unit in January 2012 he conducted HHC's 100 percent inventory.  He stated the facility situation and condition for storing HHC property was not fully secure.  One location he identified had many cracks, rust, was old, and had easily-manipulated caging which anyone could have climbed over once inside the rusted door.  HHC was still in the process of moving one building over from building 1307 to building 1302 and both locations had serious property-storage issues.  Building 1307 was never fully secure in terms of all doors being locked.  Anyone from any location could have walked in to the area with property and retrieved it for themselves.  Building 1302 lacked adequate storage space and structure to truly keep property secure.  He stated none of the unit property had been sub-hand receipted to other Soldiers other than some to the S-6 section.

	e.  On 10 September 2012, 402nd CA Bn Command Sergeant Major (CSM) DAD stated the unit's storage facilities were not adequate to meet property storage requirements.  Building 1307 and 1302 could easily be broken into.  CSM DAD stated, however, that the battalion met its responsibilities of providing for the proper care and custody of the property as best as could be expected under the circumstances.

	f.  On 12 September 2012, SFC PM (AGR) stated he arrived at the 402nd CA Bn in December 2009.  One of the first things he noticed was the lack of storage space needed to store all authorized equipment.  The front roll-up door at one location was broken and would not secure properly.  It could easily be pushed open.  Inside, all five companies' equipment was stored together in an open bay area.  He stated the applicant and SSG LMR completed a 100 percent inventory prior to SSG LMR's departure from the unit.  All equipment was accounted for.  The HHC Standing Operating Procedures stated that all equipment must be hand receipted out by section in accordance with the current Modified Table of Organization and Equipment. 

	g.  	On 23 September 2012, LTC ECM (402nd CA Bn Commander) stated he didn't know the exact timeline of property accountability issues.  However, he knew that many property accountability issues dated back to when the unit relocated from New York to Puerto Rico because he found property still in boxes from New York that had been unopened during his inventory (May 2012).  Property was discovered missing in January 2012 with inventories signed showing no discrepancies in December 2011.  Though the storage facilities were not ideal, no attempt was made since the battalion moved to Puerto Rico to segregate their property by company.  Company property was intermixed throughout the building.  He stated that although conditions were far less than ideal, the battalion had met its responsibility and that there was no excuse to have no accountability of property that was signed for.

10.  On 18 October 2012, the FLIPL IO, through the 402nd CA Bn Commander, notified the applicant that he was being recommended for assessment of financial liability to the U.S. Government, in the amount of $7,161.90 for the loss of Government property investigated under the subject FLIPL.  The notification listed his rights relative to the subject matter.  He was given until 18 November to provide a rebuttal statement or other evidence, before the IO would forward the subject FLIPL to the approving authority.

11.  On 27 November 2012, the applicant provided a rebuttal statement to the IO's recommendation that he be found liable for the FLIPL.  He stated that SFC PM was instructed to conduct a battle handover with SSG LMR (outgoing supply sergeant) before SSG LMR PCS'd to the continental United States.  Instead SFC PM departed for a 30-day leave and the transition never happened.  He stated that SFC PM provided him with documents for inventories that were never conducted, misleading the applicant to believe they were properly conducted and for him to sign the documents.  As per conversations with SSG AES, a "SATS Base Mobile" was never at the unit and HHC received a "SATS Base" trailer in August 2012, but the "SATS" on the FLIPL was signed for in August 2011.  He also stated that active duty Soldiers were assigned and tasked to safeguard the property and conduct those inventories.  The fact that they could have misled the commander (applicant) into signing the inventories when they well knew items were missing caused irreparable harm.  He requested relief of financial liability in this case for the reasons above.

12.  On 4 January 2013, the Office of the Command Judge Advocate completed a legal review of FLIPL Numbers WZ1AA-xx-xxx, WZ1AA-xx-xxx-x, and 
WZ1AA-xx-xxx and determined the investigation to be legally sufficient.  The reviewing officer stated the IO's ultimate findings and recommendations were supported by the evidence.

	a.  The reviewing official stated that throughout the FLIPL investigation the applicant did not dispute signing the hand receipt which memorialized that all the property book items were present and accounted for.  However, the applicant stated in his defense that he was misled by others when he was told all of the property was inventoried and present.  He should not have relied on others and should not have signed off on the inventory without verifying the presence of the property he signed for in the hand receipt.

	b.  The reviewing official further stated the IO recommended the applicant be assessed the liability for the missing equipment and found that his actions were the proximate cause of the loss of property through simple negligence.  The evidence collected during the IO's investigation supported the IO's findings and recommendations and the investigation provided the proper basis to substantiate that the applicant should be found liable.  Specifically, the IO found the applicant was negligent in his actions in regard to the change of command inventory when he signed the hand receipt without actually ensuring the property was on hand during initial change of command inventory in August 2011.  Although the applicant attempted to deflect liability for the loss of property accountability to others, the IO determined the applicant did not ensure each item was present when conducting his change of command inventory and then he signed for the property as if the property was actually present.

13.  On 12 January 2013, the 350th CA Command Deputy Commander notified the applicant that an approved charge of financial liability had been assessed against him by the U.S. Government, in the amount of $7,161.90, for the loss of Government property investigated under FLIPL WZ1AA-xx-xxx, 
WZ1AA-xx-xxx-x, and WZ1AA-xx-xxx investigations of property.  The commander informed him of his rights relative to the matter according to Army Regulation 735-5, paragraph 13-42.  He acknowledged receipt of the charges against him, his rights relative to this matter, and was informed that he may submit a request for reconsideration of the approved assessment. 

14.  In the processing of this case, an advisory opinion was requested of the Deputy Chief of Staff, G4.  An advisory opinion was provided on 1 November 2013.  The G4 stated that based on the information provided the applicant failed to maintain accountability entrusted to him while serving as company commander.  In accordance with Army Regulation 735-5 commanders are obligated to ensure all Government property within their command is properly used and cared for, and that proper custody, safekeeping, and disposition are provided.  G4 recommended that the financial liability assessed against the applicant be sustained as recommended by the approving authority.

15.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not submit a response.

16.  Army Regulation 735-5, in effect at the time, prescribed the basic policies and procedures in accounting for Army property; defined accountability and responsibility; and defined the command supply discipline program, its intent, and implementing procedures.

	a.  Paragraph 13-29 states a financial liability officer’s responsibility is to determine the cause and value of the loss, damage, or destruction (LDD) of Government property listed on the financial liability investigation of property loss, 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 LDD of Government property if they were negligent or have committed willful misconduct, and their negligence or willful misconduct is the proximate cause of that LDD.

	b.  The above paragraph also states it is the obligation of a commander to ensure all Government property within his or her command is properly used and cared for, and that proper custody, safekeeping, and disposition are provided.  Command responsibility is inherent in command and cannot be delegated.  It is evidenced by assignment to a command position at any level and includes position at any level and includes the following:

* ensuring the security of all property of the command, whether in use or in storage
* observing subordinates to ensure their activities contribute to the proper custody, care, use, safekeeping, and disposition of all property within the command
* enforcing all security, safety, and accounting requirements
* taking administrative or disciplinary measures, when necessary

   c.  Paragraph 13-29 further states 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.  It states 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 LDD of Government property.
   
   d.  Paragraph 13-29c states that 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 evidence shows the applicant signed the hand receipt for his unit's equipment based on the change of command inventory without actually ensuring the property was on hand.  He indicates he believes the full-time staff was responsible for accountability of the unit's property and that he was misled by SFC PM who persuaded him that all items on the inventories that he signed for were present. 

2.  The FLIPL IO recommended the applicant be assessed the liability for the missing equipment because his actions were the proximate cause of the loss of property through simple negligence.  An approved charge of financial liability was assessed against him by the US Government, in the amount of $7,161.90, for the loss of Government property investigated under FLIPL WZ1AA-xx-xxx, 
WZ1AA-xx-xxx-x, and WZ1AA-xx-xxx investigations of property.  The legal review determined the investigation to be legally sufficient and that evidence supported the IO's findings and recommendations.

3.  Therefore, in view of the above, and in conjunction with the opinion provided by the Office of the Deputy Chief of Staff, G-4, there is an insufficient evidentiary basis for granting the applicant 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 that 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)                                         AR20130013609



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ABCMR Record of Proceedings (cont)                                         AR20130013609



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