BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140001794 


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 of financial liability #WAXXXX-13-CA-0XX, imposed against him on DD Form 200 (Financial Liability Investigation of Property Loss (FLIPL)) initiated on 3 May 2013.

2.  The applicant states:

* The investigation failed to prove negligence
* Every request for extension was denied and a decision to hold him liable was made long before the investigation was completed
* Multiple attempts to rectify and explain the circumstances were denied during the process

3.  The applicant provides:

* Self-authored statement dated 16 January 2014
* FLIPL Notification Memorandum, dated 23 September 2013
* FLIPL Acknowledgement Memorandum (Undated)
* Documents as listed in the FLIPL Table of Contents

CONSIDERATION OF EVIDENCE:

1.  The applicant, a chief warrant officer two (CW2) was assigned to Headquarters Service Company, 96th Aviation Support Battalion, 101st Combat Aviation Brigade (CAB), Fort Campbell, Kentucky.  His military occupational specialty was 154F0 (CH-47F Pilot).

2.  In a narrative summary of events leading up to the loss of accountability of Operation Camouflage Pattern (OCP) issued flight equipment from the 101st CAB Aviation Life Support Equipment (ALSE) the applicant stated:

	a.  In December 2011 he, the officer-in-charge (OIC) of the ALSE shop, began to request the Operation Enduring Freedom pattern flight issue from Product Manager Air Warrior.

	b.  He and his contacts discussed options for acceptance of the equipment due to manufacture shortages and they agreed that the best method would be to issue by battalion.

	c.  He and his contacts began to accept equipment and inventoried it upon arrival.  They identified shortages and received replacements per email traffic between himself and his contacts.

	d.  Based on mission needs, they began fielding while they were still accepting flight equipment.  The battalion ALSE OIC was to bring a small element at a time and personally fit each Soldier with their flight issue.

	e.  The entire transaction took place on a DA Form 2062 (Hand Receipt) and was placed in piles by company until they could be compiled into a battalion hand receipt binder.  They were still open as a fully-functional ALSE shop, where they serviced, inspected, and repaired flight equipment.

	f.  The battalions were deploying as task forces which were compiled of elements from various units.  They were understaffed and constantly requesting assistance from the 96th ASB.  What he received for help were substandard, untrained, and undisciplined Soldiers.  They did not follow instructions and they did not keep accountability of hand receipts.  By the time they realized they had an accountability problem, parts of the brigade had already began to deploy.  He sent a number of emails forward to attempt to account for the equipment but received nothing in response.

	g.  He was able to locate one of his technicians and he found out he had been moved out of the ALSE shop into another shop.  He was not notified of this change until he was told online.  The technician did what he could to get contact information for the other shops at the various forward operating bases which was accomplished via "Facebook."  He instructed each of his technicians to have every Soldier who had their equipment inspected to re-sign a DA Form 2062 and to send a scanned copy to him.  Not a single DA Form 2062 was sent back though multiple requests had been made.

	h.  He and other Soldiers in the shop conducted multiple inventories and compiled spreadsheets of items unaccounted for.  They were not and they had no way of enforcing the accountability procedures down range.  The only accountability they were able to rely on was what they had in the shop to include physical property and original DA Forms 2062.  They were forced to wait upon a redeployment to gain 100 percent accountability.

	i.  He began the medical board process in December 2012.  In January 2013, he began the process of attempting to identify a replacement and also to identify turn in procedures that would best account for the property.  The plan was emailed to appropriate personnel and a fragmentary order was produced to send forward.

	j.  They had a warehouse set up to receive the equipment during the 7-day reintegration process, and a plan to hold the Soldier turning in equipment responsible for missing pockets or items.  There had been little compliance with the procedure with only one person bringing in equipment.  There had been no coordination between the 101st CAB and his shop when incoming flights were scheduled to arrive, nor were they part of the reintegration process as they had originally planned.

	k.  He was 2 days away from clearing the division and he still had no OIC replacement.

3.  On 18 April 2013, the 96th ASB S-4 office was notified of missing/ unaccounted equipment that belonged to the 101st CAB ALSE section.  The items were signed for by the applicant on 21 October 2011 and he was transitioning out of the Army.  The notification shows that the applicant stated the items were unaccounted for due to the OPTEMPO of the ALSE shop which resulted in poor accountability procedures prior to and during the deployment of the 101st CAB.

4.  On 2 May 2013, an investigating officer (IO) was appointed to conduct an investigation of property loss.  The IO was told that his task in conducting the investigation of property loss was to determine whether someone's negligence or willful misconduct was the proximate cause of the loss.  He was told that if an individual was negligent, and that negligence was the cause of the loss, it was appropriate to recommend assessment of financial liability against that individual.

5.  The applicant retired by reason of physical disability (temporary) on 20 June 2013.

6.  After obtaining an extension, the investigation was completed on 13 August 2013.  The IO found:

	a.  The applicant assumed responsibility of the brigade's ALSE equipment on 21 October 2011 and at the time, he assumed responsibility of all equipment that was currently in the ALSE shop.

	b.  The applicant's replacement conducted inventories upon which he identified end-item shortages.  His replacement also refused to count a DA Form 2062 as an accountable item.

	c.  Upon completing his initial investigation, he found additional delinquencies in the accountability of issued and on-hand equipment.  The additional delinquencies along with adding the DA Forms 2062 significantly raised the value of the FLIPL from the initial amount of $42,273.25 to over $600,000.00.

	d.  None of the equipment on the FLIPL was on the original property book that the applicant signed for.  All equipment that was currently on the FLIPL was added in the months of March through April 2012 and was OCP in design/color that was ordered strictly for deployment.

	e.  There were some date discrepancies on the sworn statement from the applicant.  The applicant's statement described receiving equipment listed on the document #030112AW1 on 9 March 2013 when in fact it was listed as 9 March 2012, which was believed to be a simple typographical error and not intentional fabrication.

	f.  The gear was received from manufacturers and issued to the users simultaneously.   Soldiers were also turning in all Army Combat Uniform pattern gear while being issued all OCP gear.

	g.  Documentation on when the OCP flight gear was ordered was provided.  The plan to distribute the flight gear was developed between the applicant and a civilian employed in the ALSE shop.  They determined that DA Form 2062 would suffice for proper accountability when issuing equipment to individual Soldiers.  A procedure was put in place to issue equipment while maintaining records.

	h.  There was no plan to renew accountability down range whenever a DA  Form 2062 changed or expired.

7.  The IO found that the applicant could not be charged the full amount of which he is liable ($44,464.28) equal to the value of lost equipment minus 0 percent depreciation (new equipment).  This amount exceeds one month's base pay of $4,353.90.  The IO recommended that the applicant be liable to the U.S. Government for the total amount of $4,353.90, equal to one month's base pay.  The IO found that the applicant had command responsibility for the proper custody, care, use, accountability, safekeeping, and disposition of all property within his property book and that he failed to exercise reasonable and prudent actions to proper use, care for, and issuance of all Government property for which he signed.  All equipment for which he was being charged, he was personally accountable for and did not sub-hand receipt the equipment to anyone.  The IO found the applicant to be negligent in the care of the items and that the proximate cause for the loss of the equipment was due to lack of care and responsibility from the applicant.  The IO recommended assessment of financial liability against the applicant and that a new process be implemented which utilized Aircrew Training Program Commanders and Company Aviation Life Support Officers.

8.  On 14 August 2013, the applicant was notified that he was being recommended for charges of financial liability to the U.S. Government in the amount of $4,353.90 for the loss of Government property.  In the notification, he was advised of his rights under the provisions of Army Regulation 735-5 (Property Accountability Policies).  He was also told that there were time constraints for submission of a rebuttal contained in Army Regulation 735-5.

9.  In a Memorandum for Record dated 29 August 2013, the applicant's commanding officer stated that effective 29 August 2013 he had failed to submit an official rebuttal by the end of the 15-day period allotted to him.  He stated that the appointing authority denied an extension of the 15-day period and that the initial findings remain valid and are supported by the appointing authority.

10.  The applicant submitted a rebuttal to the FLIPL dated 9 September 2013.  In the rebuttal he stated that he should not be found liable because the IO's assessment of liability was legally insufficient and failed to provide the requisite evidence under Army Regulation 735-5.  He stated that the equipment was not lost due to his negligence and he was not the proximate cause of the loss.  He stated that negligence and proximate cause are two of the four key elements that the Government is required to provide in order to find him liable under Army Regulation 735-5.  He stated that because the Government did not prove by a preponderance of the evidence that his actions were negligent and that his actions amounted to the proximate cause of the loss the FLIPL was meritless.  He requested that the collection of the debt be cancelled or be extended over a period of 12 months.

11.  On 11 September 2013, the company commander reviewed the applicant's rebuttal and did not find any evidence to support his conclusion that "accounting for a majority of equipment shows he was not negligent."  Losing equipment with zero attempts to recover equipment does not show proper accountability.  Equipment recovered by the IO, S-4, and others after the fact does not show favorable credit upon the applicant.

12.  On 17 September 2013, the Brigade Judge Advocate (JA) reviewed the IO's findings and recommendation of financial liability.  The JA stated that the investigation substantially complies with the legal requirements of Army Regulation 735-5.  He stated sufficient evidence supports the conclusion of the IO and the greater weight of the evidence supports the IO's conclusion that the applicant was negligent in executing his responsibilities to ensure proper custody, safekeeping, and disposition of the ALSE equipment and that the applicant was the proximate cause of the loss of the ALSE equipment.  However, as an accountable officer for the property, the applicant may be held liable for the full amount of the value of the equipment at the time of the loss.  The JA stated that although the applicant did not submit his rebuttal within the required timeframe permitted by regulation, his rebuttal matters were received and were taken into account in preparing his legal review.

13.  The JA recommended that the approving authority approve the IO's findings and as a result of finding him liable, he be held financially liable for the loss of the ALSE equipment at issue.  However, the JA recommended that the approving authority consider holding the applicant liable for the full amount of the loss to the Government in the amount of $44,464.28.

14.  On 23 September 2013, he received notification of FLIPL #WAXXXX-13-CA-0XX in the amount of $44,464.28.  In the notification he was told that an approved charge of financial liability had been assessed against him by the U.S. Government in the amount of $4,353.90 for loss of government property.  He was advised of his rights and he was told that he had 30 calendar days from the date of the notification to submit a request for reconsideration of assessment of financial liability.  He was told that he could also submit a request for remission or cancellation of indebtedness.

15.  During the processing of this case an advisory opinion was requested from the Office of the Deputy Chief of Staff, G-4.  The Director of Supply states that the FLIPL was conducted in accordance with the Department of the Army Pamphlet 735-5 and the recommendation to hold the applicant liable should be upheld.  He stated that the applicant did not fulfill his direct responsibility of ensuring proper care, custody, safekeeping and disposition of the equipment noted.  The Director of Supply recommended that the financial liability assessed be sustained as recommended by the approving authority for the FLIPL.

16.  A copy of the advisory opinion was sent on 14 April 2014 to the applicant for his information and opportunity to respond.  No response was received.

17.  Army Regulation 735-5 is the authority for property accountability policies.  Paragraph 2-8 (Responsibility) states responsibility is the obligation of an individual to ensure Government property and funds entrusted to their possession, command, or supervision are properly use and cared for, and that proper custody, safekeeping, and disposition are provided.  Paragraph 2-8a(4) (custodial responsibility) states the obligation of an individual for property in storage, awaiting issue, or turn-in to exercise reasonable and prudent actions to properly care for, and ensure proper custody, safekeeping, and disposition of the property are provided.  Custodial responsibility results from assignment as a supply sergeant, supply custodian, support clerk, or warehouse persons, and is rated by, and answerable directly to, the accountable officer of the individual having direct responsibility for the property.  Responsibilities include observing subordinates to ensure their activities contribute to the proper custody, care, safekeeping, and disposition of all property within the supply room and storage annexes and, when unable to enforce the responsibilities, to report the problem(s) to their immediate supervisor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The available evidence shows that the applicant did not fulfill his direct responsibility of ensuring proper care, custody, safekeeping and disposition of the equipment.  Even he admitted in his own statement that he was only able to account for equipment at the ALSE shop.  While he blames the Soldiers who were assigned to him, it was ultimately his responsibility as the OIC to make sure those Soldiers were properly performing their assigned duties.

3.  All equipment for which the applicant is being charged, he was personally accountable for and did not sub-hand receipt the equipment to anyone.  The IO found the applicant to be negligent in the care of the items and that the proximate cause for the loss of the equipment was due to lack of care and responsibility from the applicant.  

4.  The JA stated that the investigation substantially complies with the legal requirements of Army Regulation 735-5.  He stated sufficient evidence supports the conclusion of the IO and the greater weight of the evidence supports the IO's conclusion that the applicant was negligent in executing his responsibilities to ensure proper custody, safekeeping, and disposition of the ALSE equipment and that the applicant was the proximate cause of the loss of the ALSE equipment.  The JA recommended that he be held accountable for the full amount of the lost property.

5.  The available evidence shows that his request for an extension to submit his rebuttal was denied.  However, the JA noted in his review that the rebuttal had been received and considered.  The available evidence also shows that the applicant was provided the opportunity to "rectify and explain" the circumstances surrounding the missing property.  His contention that the IO failed to prove negligence is without merit.

6.  Taking into account all the facts and circumstances present, it is clear that the applicant failed to provide the degree of care for the property that a reasonably prudent, similarly-situated person would have taken, whether in a direct capacity or supervisory capacity.  Accordingly, he should not be relieved of financial liability.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140001794





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ABCMR Record of Proceedings (cont)                                         AR20140001794



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