IN THE CASE OF:	   

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140000142 


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 his TA 50 (Field Gear) was turned in at Camp Shelby, MS, before he out-processed from Fort Gordon, GA in June 2011.  He also states the acting supply sergeant was not on duty at the time of the turn-in and his records were not properly filed.

3.  The applicant provides copies of the following documents:

* DA Form 3645 (Showdown:  Clothing Record – Automated)
* DD Form 200 (Financial Liability Investigation of Property Loss (FLIPL)) with enclosures
* Defense Finance and Accounting Service (DFAS) letter with enclosure

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard (ARNG) of the United States (ARNGUS) and Mississippi ARNG (MSARNG) from 12 May 1987 through 11 May 1993.  He had a break in military service from 
12 May 1993 through 28 August 2000.

2.  He enlisted in the ARNGUS and MSARNG on 29 August 2000 in the rank of specialist/pay grade E-4.    He was ordered to active duty on 12 January 2007.

3.  U.S. Army Human Resources Command, St. Louis, MO, Orders A-07-021283, dated 23 July 2010, retained the applicant on active duty for a period of 358 days for completion of medical care and treatment.  He was ordered to report to the Warrior Transition Battalion, Fort Gordon, GA, on 23 July 2010.

4.  On 3 May 2011, a Physical Evaluation Board (PEB) convened and found the applicant physically unfit due to Diabetes Mellitus (Type 2, Insulin required) and Gastro paresis (recurrent bouts of nausea and vomiting, secondary to Diabetes Mellitus).  The PEB recommended a combined rating of 70-percent and placement on the permanent disability retired list.  The results of the PEB were approved on 9 May 2011.

5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired from active duty on 31 August 2011 based on permanent disability and transferred to the U.S. Army Reserve Control Group (Retired).  It also shows he was separated at Fort Gordon, GA, and that he electronically signed the DD Form 214 on 10 June 2011.

6.  In support of his request the applicant provides the following documents:

   a.  DA Form 3645, dated 5 August 2009 (emphasis added), that shows the applicant was assigned to MSARNG Training Center, Camp Shelby, MS.  It lists a total of 45 Organizational Clothing and Individual Equipment (OCIE) items and shows the applicant acknowledged receipt of the items listed on the form, his responsibility to maintain the items in serviceable condition, and that he might be held financially liable for any items which were lost or damaged due to his negligence or misconduct.  It also shows the applicant and an inspector signed the DA Form 3645 on 12 May 2011 (emphasis added).  It further shows the automated form was produced for the purpose of "Financial Liability Investigation" on 14 July 2010 (emphasis added), 1342 hours.

	b.  FLIPL, Inquiry/Investigation Number MSA W8AGXXXX-JFH-XX Unit Identification Code (UIC):  W7LZAA, Date Loss Discovered:  28 February 2012, that lists a total of 45 OCIE items with a Total Cost of $1,623.09, were lost.  It also shows in item 9 (Circumstances Under Which Property Was), the applicant was "mobilized at Camp Shelby Joint Force Training Center (CSJFTC), sent to a medical treatment facility (MTF), processed out as a result of medical discharge, and did not report to out-process (clear) supply before going to the MTF."  It further shows:

* on 7 May 2012, the investigating official recommended financial liability in the amount of $1,623.09
* on 7 May 2012, the responsible (property record) officer indicated that all efforts to contact the applicant were unsuccessful; she recommended he take responsibility for the equipment not recovered and be held liable
* on 15 May 2012, the appointing authority approved the recommendation that the applicant be held financially liable
* on 28 May 2012, the approving authority approved the FLIPL

    	(1)  Exhibit D is a U.S. Postal Certified Mail Receipt, postmarked 
29 February 2012 and a label indicating, "Return to Sender, Not Deliverable as Addressed, Unable to Forward."

   	(2)  Exhibit E is a CSJFTC, Camp Shelby, MS, memorandum, dated
28 February 2012, subject:  Return of Government Property, that notified the applicant of his possession of certain items of government property, which must be returned to the unit immediately to avoid further action.

	c.  On 29 May 2012, the approving authority (COL K____) notified the applicant of the approved charge of financial liability assessed against him by the United States Government, in the amount of $1,623.09, for the loss of Government property investigated under FLIPL MSA W8AGXXXX-JFH-XX.  He was provided a copy of the FLIPL, advised of his rights, informed that a request for reconsideration could be submitted based on legal error, and he was offered information on procedures regarding the indebtedness.

   d.  DFAS letter, dated 29 August 2012, notified the applicant that he was indebted to the Department of Defense in the amount of $1,623.09 due to the loss of Government property.  He was informed of sources available to him to resolve his debt and advised of the process and procedures for payment or collection of the debt.

7.  In the processing of his case, an advisory opinion was obtained from the Director of Supply, Office of the Deputy Chief of Staff, G-4, Washington, DC.  The advisory official recommends the applicant's petition for financial relief be denied and that the financial liability assessed be sustained as recommend by the approving authority for the FLIPL.  The advisory official concludes that the FLIPL was conducted in accordance with Army Regulation 735-5 (Property Accountability Policies) and the recommendation to hold the applicant liable should be upheld.

8.  The applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  To date, he has failed to provide a response.
9.  Army Regulation 735-5, chapter 13 (FLIPL), shows that 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 Glossary, section II (Terms), shows:

a.  Negligence is defined as 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.  Willful misconduct is defined as any intentionally wrongful or unlawful act or omission relating to Government property, to include misappropriation of Government property.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be relieved from financial liability for the loss of equipment because he turned in his equipment at Camp Shelby, MS, but his supply records were not updated to show that he turned-in the equipment.

2.  The evidence of record shows the applicant signed for the Government property that is in question.

   a.  The DA Form 3645 the applicant provides offers conflicting evidence with respect to the purpose for which it was produced (FLIPL) and date (14 July 2010) in comparison to the signature dates (12 May 2011) of the applicant and inspector.  Thus, the validity of this document that the applicant provides is suspect.  In any event, it does not offer evidence that the applicant turned-in the 45 OCIE items.

   b.  There is no evidence of record and the applicant fails to provide any evidence (e.g., receipt for turn-in of property, statement from the supply sergeant, etc.) that supports his contention that he turned-in the equipment.

   c.  The evidence of record shows the Government attempted to notify the applicant of his possession of certain items of government property, which must be returned to the unit; however, the notice was returned.

3.  The evidence of record shows the applicant was held financially responsible in the amount of $1,623.09 for loss of Government property and a reasonable effort was made to notify him of the results of the approved FLIPL.  In addition, the evidence of record shows the FLIPL was conducted in accordance with the governing Army regulation.

4.  There is no evidence of record that shows the applicant submitted a request for reconsideration of financial liability to the appropriate authority; specifically, the appellate authority.

5.  The applicant's evidence has been thoroughly reviewed and is insufficient to justify granting his request.

6.  Therefore, there is no basis for granting 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)                                         AR20140000142



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ABCMR Record of Proceedings (cont)                                         AR20140000142



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