BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130016312 


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) (EN-12-02) that was conducted by the Texas Army National Guard (TXARNG), and garnished the amount of $4,309.50, be reversed and found not supported by the evidence, with restoration of garnished pay.

2.  The applicant states he was held liable for the loss of Government property (military equipment issued by the Army and known as Table of Allowance 50 (TA-50) gear).  He argues that the FLIPL is legally insufficient and the evidence does not support the imposition of liability:

* he was neither negligent nor the proximate cause of the loss
* he did not have responsibility for the items at the time they were lost
* his conduct failed to rise to even the lowest level of culpability: simple negligence
* there is zero proof that his actions were the proximate result of the loss
* the FLIPL contains procedural deficiencies that render it flawed
* he was denied due process by the legal assistance officer who told him there was nothing he could do to appeal the FLIPL

3.  The applicant provides:

* DD Form 200 (FLIPL) and allied documents (findings, chain of command recommendation, and approving authority decision)
* U.S. Property and Fiscal Officer (USFPO) review of FLIPL
* Legal review of FLIPL
* Transmittal of FLIPL
* Two memoranda of support

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 Army Regulation (AR) 735-5:  

	a.  The FLIPL process starts when the appointing authority, usually a lieutenant colonel or above (most often a battalion or squadron commander), appoints a Financial Liability Officer (FLO) to investigate the facts surrounding the loss.  The FLO will be a commissioned or warrant officer, a noncommissioned officer (NCO) in the rank of sergeant first class 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 colonel (COL) or above, 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 (Property Accountability Policies).

	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.  ARNG Soldiers will have 60 days (ARNG units that have been mobilized will use the active Army constraints; i.e., 30 days).  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.

	f.  In the ARNG, the Adjutant General is the appeal authority for financial liability investigations or loss.  This authority may be delegated to the Deputy Adjutant General only.  In cases of State liability, the Chief, National Guard Bureau will act as the appeal authority.  

2.  Having had prior service, the applicant enlisted in the TXARNG on 22 August 2007.  He holds military occupational specialty 13B (Cannon Crewmember). 

3.  He was initially assigned to the 236th Engineer Company (Vertical Construction), Denton, TX; however, on 1 May 2008, he was transferred to the 949th Brigade Support Battalion (BSB), Lubbock, TX.  

4.  He was ordered to active duty on 30 November 2009 and subsequently served in Iraq with the 949th BSB.  He was honorably released from active duty on 8 December 2010 to the control of his State ARNG. 

5.  On 1 January 2010, he was transferred from the 949th BSB back to the 236th Engineer Company in Denton, TX.  

6.  On 26 March 2012, by certified mail, the Detachment NCO in charge (NCOIC), Staff Sergeant (SSG) D-----o G. R------z, 236th Engineer Company notified the applicant to return all military property for which he has signed.  He was also advised in the event he could not account for his gear, he could make a statement in his behalf. 

7.  The DD Form 200 he provides shows the following: 

	a.  the date of loss discovery, and initiation of the FLIPL, is listed as 27 March 2012.  The author, SSG D-----o G. R------z, Detachment NCOIC, 236th Engineer Company (Rear), 11th Engineer Battalion, indicated the "Service member was absent without leave (AWOL) and has failed to return the property despite numerous attempts made to recover the gear; attempted to contact service member through phone and mail."  
	b.  the responsible officer, listed as P-----k D. C---h, who at the time was a second lieutenant in the 236th Engineer Company, 11th Engineer Battalion, working as the Rear Detachment Commander (of the 236th Rear), placed an "X" in the "Yes" block that says "Negligence or abuse evident/suspected?" and placed the comment "Service member made no attempt to return gear to unit; service member is liable for all gear" and recommended to proceed with the FLIPL.

	c.  the approving authority, identified as COL J---s A. J---t, Deputy Commander, 176th Engineer Brigade, Grand Prairie, TX, approved the FLIPL on 23 April 2012, and commented that "I find [Applicant] financially liable for missing OCIE [Organizational Clothing and Individual Equipment] in the full amount ($4,788.35) less applicable depreciation; Soldier is AWOL."  

	d.  the back page of the DD Form 200 shows in the "Findings and Recommendations" block the entry "10 percent Depreciation = $4,309.50."

8.  On 19 May 2012, the Brigade Judge Advocate, 176th Engineer Brigade, TXARNG completed a legal review of the FLIPL and determined it was legally sufficient.  He stated the investigation contains sufficient evidence to discern the events related to the loss of property.  The investigating officer (IO) recommends finding the applicant liable for the loss of property.  The evidence is sufficient to support a finding that he intentionally failed to return the property, that his intentional act was the proximate result of the failure to return the initial TA-50, and that the evidence is sufficient to hold him liable for the loss of equipment through the FLIPL process.  

9.  On 7 June 2012, by memorandum to the Joint Force Headquarters, the TXARNG Financial Liability Coordinator, a COL, advised that the FLIP was ready for review by the USFPO.  The Approving Authority had recommended holding the applicant financially liable for $4,788.55. 

10.  On 27 June 2012, by memorandum to the 176th Engineer Brigade S-4, the USPFO for Texas stated that the Approving Authority's finding or supporting documents "do" support the recommended action.  The individual will be held financially liable for the loss or damage of Federally owned, funded, or leased property.  The USPFO concurs with the Approving Authority's recommendation.  

11.  On 11 September 2012, by certified mail, the TXARNG USPFO FLIPL Manager, a contractor, transmitted the FLIPL to the applicant notifying him that an approved charge of financial liability had been assessed against him by the U.S. Government, in the amount of $4,309.50 for the loss of Government property investigated under subject investigation of property loss.  AR 735-5, paragraph 13-42, lists his rights relative to this matter.  He has the right to:

	a.  Inspect and copy Army records relating to this debt.

	b.  Obtain legal advice relating to the assessment of financial liability per AR 27-3 (The Army Legal Assistance Program). 

	c.  Request reconsideration of the assessment of financial liability.  A request for reconsideration can be submitted only on the basis of legal error.

	d.  Request a hearing concerning the amount of the debt, or the terms of any proposed repayment schedule (applies to civilian employees only).  A request for hearing will not be considered until after a request for reconsideration concerning the existence of the debt has been submitted and denied by the appellate authority.  A respondent who wishes to challenge the existence of the debt must do so by submitting a request for reconsideration to the approving authority.

	e.   Request remission or cancellation of the indebtedness under the provisions of AR 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members).  A request for remission of cancellation of the indebtedness will not be considered until respondent has submitted a request for reconsideration and it has been denied by the approval authority and the appellate authority.

	f.  Request extension of the collection period.

	g.   Submit an application to the Army Board for Correction of Military Records under the provision of AR 15-185 (ABCMR).  Submitting such an application is not proper until other avenues of redress have been exhausted.

	h.  Enter into a written agreement with Finance and Accounting Officer (FAO)/USPFO to repay the debt by installment.

12.  There is no indication what action the applicant took upon receipt of the certified letter (the receipt shows it was delivered). 

13.  The applicant provides a statement, dated 19 August 2013, from a military attorney at Fort Bliss, TX, who provides additional facts relevant to the applicant's appeal of the FLIPL.  He states: 

	a.  He met with the applicant on 26 July 2013.  The applicant informed him that he had been seen by another attorney in this office before his appointment with him (the author).  He, the attorney, substantiated this by reviewing the office's internal records.  The applicant stated he had met with Ms. D---a H----on, a legal assistance attorney in this office, sometime in October.  By review of the records, he was able to substantiate that he did in fact meet with Ms. H---on on 19 October 2012.  The applicant further stated that during his consultation with Ms. H----on, she informed him that there was nothing he could do to appeal the FLlPL at issue, and the window for a request for reconsideration was closed.  The advice provided by Ms. H----on and received by the applicant was incorrect. 

	b.  The applicant's appointment at Legal Assistance on 19 October 2012 was only 38 days after he received notice of his right for a request for reconsideration on 11 September 2012.  Per AR 735-5, figure 13-1 and the notification letter he received, because he was in the ARNG at the time of the alleged loss, he had 60 days total to file the request.  Therefore, he had an additional 22 days before his period for a response ran out.  Accordingly, the advice he was provided was incorrect.  This advice significantly prejudiced him.  Had he been properly advised on his opportunity to present a request for reconsideration, he may have avoided the need for an ABCMR appeal altogether, and based upon this review of the file, it is likely that he would not have been held liable for the loss of his equipment at all.  

	c.  Accordingly, this incorrect advice has potentially cost him $4,309.50, and significantly complicated his appeal to the ABCMR.  He has, by any reasonable measure, pursued every sensible avenue to ensure that he properly responded to the allegations contained in the FLIPL.  Although it may appear that he has not exhausted his administrative remedies before seeking redress from the ABCMR, it is not by his doing.  It was only by his tenacity in making another appointment with this office that the issue was uncovered and prompted this statement.  

14.  He also provides a memorandum, dated 7 August 2013, from Master Sergeant (MSG) J-----y J. M------se.  MSG M------se states this memorandum documents that there were attempts made to contact the 949th BSB in Lubbock, TX.  The applicant was attached to Team Fox 3, 1st Battalion, 360th Regiment, 5th Armored Brigade, First Army Division West in Base Camp McGregor (Fort Bliss, TX).  He did bring to his attention that his TA-50 was originally stored in a Conex with his unit.  While he was mobilized to Fort Bliss, TX, the Conex arrived in Lubbock TX, after his deployment in August 2009.  He spoke to another Soldier and he was advised the Conex had returned.  He was working and not able to return for his equipment right away because the distance was outside the authorized pass range.  By the time he was able to get his equipment he was informed his personal gear was no longer there.  He attempted to contact his unit unsuccessfully.  He was unable to obtain TA-50 because he had outstanding equipment issued in his name.  Fort Bliss, TX, was able to issue a few items necessary to conduct training on training lanes.  He (the author) attempted to contact a few of the applicant's leaders, his lieutenant and unit first sergeant, to determine the whereabouts of his TA-50.  He also made several attempts by phone and email but did not receive any replies.  To the best of his knowledge this was in the winter of 2009 possibly around December/January.  He even tried to contact someone at his unit but only received voice mails.

15.  An advisory opinion was received from the Office of the Deputy Chief of Staff, G-4 on 15 November 2013, in the processing of this case.  The G-4 official stated: 

	a.  The enclosed application for relief of financial liability for the FLIPL initiated against the applicant is returned with recommended reimbursement of $4,309.50 and correction of his records.  The applicant did not receive due process afforded to him in accordance with AR 735-5 (28 February 2005).  His appointment at Legal Assistance on 19 October 2012 was 38 days after he received notice of his right for a request for reconsideration on 11 September 2012.  The legal advisor informed him that the window for a request for reconsideration was closed.  In accordance with AR 735-5, figure 13-1, the applicant, as a member of the ARNG, had 60 days total from time of notification to file the request.  Therefore, he had an additional 22 days before his period for a response expired.  

	b.  The USPFO violated AR 735-5, paragraph 13-17 and Table 13-9 by using a contractor to notify the applicant.  An Army officer or DA civilian employee authorized to appoint a FLIPL officer and approve the FLIPLs is required to conduct notifications.  

	c.  In accordance with AR 735-5, paragraph 13-22b, the approving authority must establish negligence or willful misconduct as proximate cause for loss when using the short FLIPL process.  The command legal review cited "proximate cause" due to the applicant being AWOL as the reason to hold him liable for the loss of equipment through the FLIPL process.  However, there is no documentation within this FLIPL to support he was AWOL at any time.  

16.  The applicant was provided with a copy of this advisory opinion but he did not respond.  

17.  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 Command Supply Discipline Program, 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.  

18.  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.

19.  Chapter 13 of AR 735-5 states that the purpose of a FLIPL 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.  An FLO’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 FLO 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.

20.  Figure 13-1 of AR 735-5 provides processing time segments for the DD Form 200.  For ARNG Soldiers, after notification, the ARNG Soldier will have 60 days before the USPFO begins the collection process.  

21.  Paragraph 13--17 and Figure 13-9 of AR 735-5 states the appointing authority is an officer or civilian employee designated by the approving authority with responsibility for appointing an FLO.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks relief from financial liability imposed against him by FLIPL Number 12-02.

2.  The applicant was held responsible for losing TA-50 incident to a mobilization and deployment.  When the financial liability was assessed against him, he contends his received flawed legal guidance regarding his right to appeal.  The initial legal advice provided to him was in error.  His appointment at the legal office was on 19 October 2012 which was 38 days after he had received notification (12 September 2012).  It is reasonable to presume if he had been given proper legal advice, there was a possibility his appeal would have been considered and acted upon by the TXARNG or the National Guard Bureau.

3.  Additionally, the TXARNG USPFO used a contractor to notify the applicant that financial liability was being assessed against him for the loss of TA-50.  This violates the regulation that requires an officer or a DA civilian conduct the appointment and notification of financial liability. 

4.  Although the investigating officer's findings and recommendations are not available for review with this case, and although it is impossible to determine how the TA-50 was lost, due to administrative errors committed by the TXARNG the applicant should be granted the requested relief.  

BOARD VOTE:

___x_____  __x______  _x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 and State Army National Guard records of the individual concerned be corrected by showing he was not financially liable for the $4,309.50, as indicated in FLIPL Number EN-12-02.

2.  The Board further requests that the Defense Finance and Accounting Service (DFAS) reimburse the applicant any amount of the $4,309.50 already collected his pay as a result of these Proceedings.




      _______ _   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)                                         AR20130016312



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ABCMR Record of Proceedings (cont)                                         AR20130016312



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