IN THE CASE OF:	  

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130015963 


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 his DD Form 200 (Financial Liability Investigation of Property Loss), Number WAJFAA-11-BXXX-642, dated 4 May 2011 (hereinafter called the FLIPL), be overturned and that he be reimbursed the $2,231.00 that was wrongfully withheld from his taxes.

2.  The applicant states:

* he recently received a letter from the Internal Revenue Service (IRS) stating his refund for the 2012 tax year had been taken to offset a debt he owed to the Defense Finance and Accounting Service (DFAS)
* this was the first time he had heard of a debt and he discovered DFAS sent debt notification letters to an address in South Carolina that he lived at when he first joined the Army
* he has lived in Illinois since the date of his separation from the Army
* he contacted DFAS after receiving the letter from the IRS and he was told the debt was due to property loss
* he was honorably discharged on 4 February 2011 from Fort Carson, CO
* he was unable to clear entirely before leaving post
* his commander told him to turn in all his remaining equipment and property to the Supply and Administration office and they would finish clearing for him
* he had already turned in some of his equipment to the Central Issuing Facility (CIF) prior to that day but he was told some of the items needed to be cleaned before he could turn them in
* he turned in his remaining property as instructed and gave his military identification and his room key to the Supply and Administration office
* his company failed to turn in all of his property to the CIF because he is now being charged over $2,000.00 for missing items
* his entire CIF file was faxed to him and he noticed that his property was not turned over to CIF until 10 weeks after he left Fort Carson, CO
* his job while in the Army was unit supply and he is aware of the financial consequences that result from failing to turn in the required property
* he had no missing items and his property was lying around for nearly 2 1/2 months before being turned in and there is no telling what might have happened to the missing pieces of equipment
* he did not have physical possession or control of the equipment for over 10 weeks prior to the date it was finally turned over to CIF and he should not be held financially accountable for the debt incurred from the missing items
* he was never given the opportunity to give a statement for the FLIPL regarding the debt

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* memorandum from the manager, Fort Carson CIF, dated 1 April 2011
* FLIPL, dated 4 May 2011
* two DA Forms 3645 (CIF Turn-in Work Sheet)
* letter from the Department of Treasury, dated 13 February 2013
* Memorandum for Record, dated 14 April 2011
* two DA Forms 2062 (Hand Receipt/Annex Number)

CONSIDERATION OF EVIDENCE:

1.  On 31 May 2006, the applicant enlisted in the Regular Army.  

2.  On 4 February 2011, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).

3.  On 1 April 2011, a memorandum was sent to the applicant's former commander notifying him of the applicant's delinquent temporary loan.

4.  On 4 May 2011, a DD Form 200 was initiated.  An enlisted supply Soldier, Specialist (SPC) B, was appointed as the investigating officer (IO).


5.  The DD Form 200 states, in effect:

	a.  During the 2009-2010 deployment, the applicant signed a DEC (Declaration) Statement that his expiration of term of service (ETS) was 16 January 2011.  Upon return from Fort Carson, CO, in July 2010, he was instructed to begin preparing to ETS including, specifically, to clear CIF.

	b.  The applicant had been working to receive an earlier ETS date due to school enrollment which was approved in early January for a new date of 4 January 2011.  However, the applicant was on leave for a family funeral at the time his early ETS was approved and he did not return from leave until just before his revised ETS date.

	c.  As a result, on 3 January 2011, the applicant went to the CP (command post) with some of his Table of Allowances (TA)-50, left it on the floor by the training room, and stated that his ETS date was the following day and that the TA-50 was their problem now.  

   d.  The supply sergeant turned in as much of the left-behind TA-50 that CIF would accept; the remainder is what is documented on the FLIPL.

	e.  The applicant's commanding officer stated that after having battery Soldiers thoroughly clean his equipment and re-attempt turn-in, there was nothing the unit could do to minimize the FLIPL any further.  It was, therefore, time to push the FLIPL through according to the recommendations given in the previous DD Form 200 (the previous DD Form 200 is not available for review).

	f.  The appointing authority recommended approval and stated the Soldier should be held liable for his losses, the battery did a horrible job tracking the status of this Soldier, and the Soldier was the one who lost accountability of his equipment.

6.  Item 14 (Approving Authority) of the applicant's DD Form 200 shows his commanding officer concurred with the recommendation and that a legal review was completed.  The legal review is not available for review.

7.  On 20 July 2011, the financial liability officer (FLO) signed the DD Form 200 indicating the recommended financial liability amount was $2,231.00.

8.  There is no indication the applicant authenticated the DD Form 200.

9.  On 30 October 2013, an advisory opinion was requested.  On 22 November 2013, the Director of Supply, Office of the Deputy Chief of Staff, G-4, Washington, District of Columbia, returned the request and stated the case was being returned without action due to an incomplete FLIPL.

10.  On 27 November 2013, the applicant was provided a copy of the response from the Director of Supply, Office of the Deputy Chief of Staff, G-4.

11.  On 14 December 2013, the applicant provided an email response stating:

	a.  He was advised that a copy of the complete FLIPL package was not available and the package should have included an appeal letter from him to the Army.  Additionally, the FLIPL package should have contained a statement from the IO. 

	b.  He contacted Fort Carson CIF and was advised his FLIPL only contained 2 pages.

	c.  He was never given the opportunity to appeal the FLIPL which was created months after he was already separated from the military.

	d.  He was never notified of the debt by the Army or by DFAS.

12.  On 7 January 2014, the applicant provided self-authored statements detailing issues with the FLIPL.  He stated:

	a.  The FLIPL appeared to be missing pages and FLIPL documents typically contain 15 pages or more and include multiple evidence based on documents as well as memoranda and sworn statements.

	b.  It is clear to him that the FLIPL was done improperly and did not comply with Army regulations.  There were many errors made by the person who created and approved the FLIPL.  The following is a detailed explanation of the issues and errors with the FLIPL:

		(1)  The most critical issue is the Soldier who was appointed as the FLO.  According to the Department of Defense (DoD) Financial Management Regulation (FMR), Volume 12, chapter 7, states, "any person who is accountable or is responsible for, or in any way directly interested in the property being investigated shall not be appointed as the FLO."  The Soldier appointed was responsible for the equipment once it was turned it over to him.  Responsibility is 



defined in the DOD FMR, Volume 12, chapter 7 as "an obligation for the proper custody, care, and safekeeping of property or funds entrusted to the possession or supervision of an individual."  He also fits the definition of Responsible Officer which is "an individual appointed by proper authority to exercise custody, care and safekeeping over property entrusted to his or her possession or under his or her supervision."  However, he was not a responsible custodian of the equipment and his appointment created a conflict of interest.

		(2)  The statement in Item 9 of the FLIPL which states, "…once I returned from deployment…" is false.  Adequate time was not allowed for him to prepare for his ETS date or even ETS completely from Fort Carson because the company was so busy with personnel coming and going.  The explanation given by the FLO as to why he was not granted the early release is false as well.  The applicant states he was never on leave for a family funeral but rather on leave for Christmas break and he did not return until 8 January 2011.  However, the FLO stated in Item 9 of the DD Form 200 that the applicant dropped off his TA-50 on 3 January 2011, the day before he left.  The applicant states this would have been impossible as he was in Illinois visiting his fiancé from 22 December 2010 through 8 January 2011.

		(3)   The applicant states he did not ETS until 4 February 2011 from Fort Carson, CO, and he turned in all his equipment to his company on the same date.  Further, he was told his company had to finish clearing the gear and it belonged to them since he was not given adequate time to do so and he had to leave post immediately because it was his ETS date.

		(4)  When he turned the equipment over to the company it was all accounted for and there is no evidence the company provided that proves otherwise.  The FLIPL fails to detail how the equipment was missing and fails to state the type of negligence that is being claimed against him.  The only evidence attached to the FLIPL is the copy of the equipment/gear turn in sheets from CIF.  The evidence only proves the company had the gear, was responsible for its turn in, and was in possession of it for a lengthy time.

		(5)  The CIF exhibits also show what was missing and does not prove negligence by the applicant because when he gave the gear to the company he was cleared by the supply office and the company.  Had items been missing, he would have had to fill out at least a DA Form 2062 stating what was missing and be accountable.

		(6)  The governing regulation states, "the appointing and approving authorities must act on the DD Form 200 once an individual has been properly notified and given the opportunity to respond to the findings.  Failure of involved individuals to respond to the recommendations of financial liability is not a sufficient reason to delay the approval process if the individuals were given a reasonable opportunity to reply."  The applicant was never contacted and did not find out about the debt until 2 years later.

		(7)  The FLIPL was conducted poorly and the applicant questions how it was able to pass through the chain of command.  The applicant states that while he was in the Army with the military occupational specialty 92Y (Unit Supply Specialist) he completed hundreds of FLIPLs and even received an award for his excellence in performing his duties.  He worked hard to make sure he had zero losses during his tenure and he provided the same amount of care and responsibility when it came to his own equipment/gear.

		(8)  The company is also trying to hold him accountable for gear such as canteens he signed out from the CIF as the supply sergeant for his company for men going to the noncommissioned officer (NCO) school.  He ETS'd before these Soldiers returned and this equipment belongs to the supply sergeant of the company.  The supply sergeant, SPC B, was to ensure those items were returned to CIF upon the NCO's return to post.  These items became his responsibility along with the rest of the applicant's property book and such things as they were signed over to him prior to the applicant's ETS.  SPC B became the acting responsible supply sergeant for the company and the property and equipment assigned to the applicant in the company's name.

		(9)  The applicant believes that the reason the FLIPL was initiated against him with no evidence is because the evidence would have been in contradiction to SPC Bell's statements and he would have had to take responsibility for the missing items.

14.  Army Regulation 735-5 (Policies and Procedures for Property Accountability), in effect at the time, prescribed the basic policies and procedures in accounting for Army property and set the requirement for formal property accounting within the Army.  It implemented specific property accounting procedures; defined accountability and responsibility; identified the categories of property and the accounting procedures used with each; and identified the basic procedures for operating a property account.  The regulation also prescribed the accounting procedures used when DA property was discovered lost, damaged, or destroyed through causes other than fair wear and tear.  It provided authorized methods to obtain relief from property responsibility and accountability.  It also prescribed the DA policy on such losses and financial liability.  Army Regulation 735-5, chapter 13, detailed the FLIPL process and stated the Government may impose a finding of pecuniary liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage, or destruction of Government property.

15.  Army Regulation 735-5, chapter 13, states that a FLIPL documents the circumstances concerning the loss, damage, or destruction (LDD) 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.  FLIPL are initiated and processed within a specific number of days, following the discovery of the LDD of U.S. Government property.  When delayed beyond the prescribed processing times, the person responsible for the delay will prepare a written statement explaining the reason for the delay and attach it to the FLIPL as an exhibit.  

     b.  The initiator of a FLIPL will normally be the hand receipt (HR) holder or the accountable officer.  When the HR holder or the accountable officer is not available, the person with the most knowledge of the incident will serve as the initiator.

     c.  The approving authority is defined as an Army officer, or DA civilian employee authorized to appoint a financial liability officer and to approve the FLIPL.  For Army garrisons, garrison commanders will be the approving authority for a FLIPL arising within their command or under their supervision.

     d.  Before a person can be held financially liable, the facts must show that he/she, through negligence or willful misconduct, violated a particular duty involving the care of the property.  It also states, in effect, 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 loss.  That is, the person's acts or omissions were the cause that produced the loss and without which the loss would not have occurred.

     e.  The Government may impose a finding of pecuniary liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage or destruction of Government property.  The total amount of pecuniary liability for Soldiers will be established as the equivalent of 1 month’s basic pay at the time of the loss, or the actual amount of the loss to the Government, whichever is the lesser amount.  Civilian employees’ maximum exposure is 1/12 of their annual salary.  Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss or damage would not have occurred.
     f.  Paragraph 13-29 (FLO's responsibilities) states a FLO's responsibility is to determine the cause and value of the 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.

16.  The DoD FMR, Volume 12, chapter 7 provides for the implementation and responsibilities relating to financial liability of Government property that is lost, damaged, destroyed or stolen.

DISCUSSION AND CONCLUSIONS:

1.  The IO's investigation was deficient and the FLIPL is fatally flawed.  The applicant's negligence was never established, nor were his acts or omissions established as the proximate cause of the loss.

2.  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 commander considered any of these factors.  

3.  While it is unclear who was the proximate cause of the Government's loss, it is clear the applicant was deprived of his due process rights in defending himself against such an allegation.  First, he was relieved of liability when he was cleared to ETS.  Then, he was found liable some two years later.  This flip-flop and delay eviscerated his ability to effectively respond.  Accordingly relief from all liability is appropriate. 

4.  In view of the foregoing, the applicant is entitled to the relief as outlined 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 to:

     a.  show he was not held financially liable by FLIPL # WAJFAA-11-BXXX-642, initiated on 4 May 2011; and 

     b.  refunding him any monies already collected 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)                                         AR20130015963



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ABCMR Record of Proceedings (cont)                                         AR20130015963



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