IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140008452 


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 reconsideration of his previous request for relief from financial liability in the Financial Liability Investigation of Property Loss (FLIPL) (W17MAAXXXX-10) decision.

2.  The applicant states he has exhausted all administrative remedies.  The enclosed police report furthers his contention that no evidence used in the U.S. Government's case indicated or would lead to a finding of negligence.  He further states:

	a.  He was operating a U.S. Government-owned vehicle (GOV) in the course of his duties as he approached the highway off ramp.  He was driving at or below the posted speed limit of 25 miles per hour, keeping a proper lookout, and exercising proper care to keep the GOV under control.  The weather conditions were driving rain and extremely high wind gusts.  The weather conditions caused the truck to become unbalanced, thereby causing the accident.

	b.  The command did not prove that he acted negligently.  Army Regulation 
735-5 (Property Accountability Policies), paragraph 13-29b(1), states, "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."  Paragraph 13-29b(2) defines negligence as the absence of "… 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."  It does not require the highest degree of care possible.  The command has the burden of establishing his negligence; he does not have the burden of proving the lack of negligence.  The command relied on the fact that he was issued a citation by the responding police officer for allegedly violating Ohio Code 4511.20.2 (Operating Vehicle without Reasonable Control).  The officer was not present at the accident scene and did not see what happened and there is no evidence in the FLIPL documentation to indicate the police officer is a trained accident reconstructionist.  The police officer did not cite him for driving at an excessive rate of speed for the conditions or failing to exercise proper care for his safety and/or others using the roadway.  Since the command did not meet its burden of proof on the issue of negligence under the provisions of Army Regulation 735-5, assessing financial liability against him constitutes substantial legal error.

	c.  The command did not prove that his actions or omissions constituted the proximate cause of the loss.  Army Regulation 735-5, paragraph 13-29c defines proximate loss as actions "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."  He did not cause the subject loss.  He exercised proper caution at all times leading up to the accident.  The accident occurred due to poor weather conditions on the road and in the air.  Under the heightened burden of proof required by Army Regulation 735-5, it cannot be stated that he "clearly" caused the loss.

	d.  The failure to appoint an investigating officer constituted substantial legal error.  Army Regulation 735-5, paragraph 13-23b, permits the appointing authority to conduct a "short financial liability investigation" of property loss without appointing an investigating officer only when blocks 9 and 10 of the DD Form 200 (FLIPL) and the accompanying exhibits show his negligence was the proximate cause of the loss.  The FLIPL documentation does not establish this.  An investigating officer should have been appointed so a proper investigation could have been conducted.  Questioning important witnesses at the accident scene, such as the responding police officer, and inquiring as to whether the accident could have been avoided would have avoided the incorrect conclusion regarding financial liability.

	e.  The administrative hearing conducted by the Defense Finance and Accounting Service (DFAS) violated Department of Defense Financial Management Regulation 7000.14-R.  Army Regulation 735-5, paragraph 13-45, states requests for hearings by civilian employees will be dealt with under the provisions of Department of Defense Financial Management Regulation 
7000.14-R, volume 5 (Disbursing Offices, Officers, and Agents), chapter 28 (Management and Collection of Individual Debt), and volume 8 (Civilian Pay Policy).  Volume 5, paragraph 281001F, states, "When a debtor has requested and is entitled to a hearing in conjunction with an administrative offset, the DCMO [Debt and Claims Management Office] shall determine whether an administrative or oral hearing is appropriate.  An oral hearing is not required with respect to determinations of indebtedness that do not involve issues of credibility or veracity and when the DCMO has determined that review of the written record is an adequate means to discover and correct any prior mistakes…."  The hearing officer conducted an administrative hearing and not an oral hearing where he would have been permitted to appear and present matters in his own behalf.  The hearing officer had issues with his credibility and veracity.  The hearing officer went beyond the written record to make his decision.  The hearing officer conducted his own Internet research and relied heavily on the website "smartmotoring.com."  No one referred to this website in the FLIPL process.  Since the hearing officer went beyond review of the written record to make his decision, conducting an administrative hearing violated Department of Defense Financial Management Regulation 7000.14-R.  His basic due process rights were violated because he was not given notice of the hearing officer's additional research or given an opportunity to respond to it.

	f.  At multiple steps along the way, there have been inexcusable delays or total ignorance of his rights in the process.  Even if the aforementioned matters did not rise to the level of legal error, these facts show that permitting the assessment of financial liability to stand would be a grave inequity.  The command and DFAS have shown a cavalier attitude toward his basic due process rights.

3.  The applicant provides two pages of a police report of a vehicular accident, dated 2 December 2009.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120010382 on 2 May 2013.

2.  The applicant provided two pages of a police report of a vehicular accident, dated 2 December 2009, which were not previously considered by the Board.  This constitutes new evidence which warrants consideration at this time.

3.  The applicant is currently serving as a Department of the Army Civilian employed by the U.S. Army Recruiting Battalion, Columbus, OH.

4.  The police report provided by the applicant shows the responding police officer noted the applicant was traveling northbound on U.S. Route 23 from the Interstate 270 entrance ramp on 2 December 2009 when he ran off the road to the left, striking the guard rail.  The following conditions were cited:

* Manner of Collision or Impact – not collision between two vehicles in transport
* Weather – rain
* Light Conditions – dusk
* School Bus Related – no
* Work Zone Related – no
* Type of Unit – pickup
* In Emergency Response – no
* Damage Scale – disabling damage
* Most Damaged Area – left front
* Point of Impact – left front
* Action – non-collision
* Pre-Crash Actions – movements essentially straight ahead
* Contributing Circumstances – failure to control
* Sequence of Events –

* ran off road left
* guardrail face

* Speed Detected – stated
* Speed – 45
* Posted Speed – 50
* Traffic Control – pavement markings
* Direction – south to north
* Condition – apparently normal
* Alcohol/Drug Suspected – none
* Alcohol Test Status – none
* Alcohol Test Type – none
* Drug Test Status – none
* Drug Test Type – none
* Type of Intersection – not an intersection
* Occurrence – in median
* Road Contour – straight level
* Road Conditions – wet

5.  On 6 December 2009, a DD Form 200 was initiated which stated the applicant was traveling north on State Road 23 (U.S. Route 23) from the Interstate 270 entrance ramp in Ohio in a GOV on 2 December 2009 when he ran off the road to the left, striking a guard rail.  It was raining and there was standing water at the bottom of the ramp.  He was cited by the responding police officer for failure to control the vehicle.  The U.S. Army Recruiting Battalion investigating property record officer indicated copies of the Standard Form 91 (Motor Vehicle Accident Report), police report, damage estimate, and photographs were attached as exhibits.  However, the attachments were not filed in the applicant's records.  The vehicle was described as a U.S. Government pickup truck with front end, driver's side front quarter panel damage valued at $4,736.34.  The investigating property record officer indicated negligence or abuse was evident/suspected.  He stated the applicant appeared to be traveling too fast for road conditions.

6.  The DD Form 200 shows that on 26 January 2010, the U.S. Army Recruiting Battalion appointing authority stated further investigation was not required and indicated no financial liability officer was appointed.  He recommended holding the applicant financially liable for vehicular damages in the reduced amount of $3,552.25 after considering his incident-free driving record over the past 8 years and his citation by local authorities for failure to control the vehicle during inclement weather.

7.  On 26 January 2010, the applicant submitted a rebuttal to the recommendation of financial liability wherein he presented the same arguments and objections stated in his current application for reconsideration.

8.  The DD Form 200 shows that on 25 February 2010, U.S. Army 3rd Recruiting Brigade Commander recommended holding the applicant financially liable for vehicular damages in the amount of $3,552.25.

9.  Headquarters, U.S. Army 3rd Recruiting Brigade, memorandum, dated 26 February 2010, subject:  Financial Liability, FLIPL Number XXXX-10, notified the applicant that the U.S. Government assessed financial liability against him in the amount of $3,552.25 for losses investigated under the subject FLIPL.

	a.  He was advised of his rights to:

		(1)  inspect and copy Army records relating to the matter;

		(2)  obtain legal advice relating to assessment of financial liability per Army Regulation 27-3 (The Army Legal Assistance Program);

		(3)  request reconsideration of the assessment of financial liability.  A request for reconsideration can be submitted only on the basis of legal error;

		(4)  request a hearing concerning the amount of the debt, or the terms of any proposed repayment schedule.  A request for a 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;

		(5)  request remission or cancellation of indebtedness under the provisions of Army Regulation 600-4 (Remission or Cancellation of Indebtedness).  This action is separate from the appeals process.  If action is taken, he should initiate the request immediately after notification of financial liability.  Any monies collected prior to the date subject request is verified by the unit commander will not be considered, nor reimbursed, if subject request is approved;

		(6)  request an extension of the collection period;

		(7)  submit an application to the ABCMR under the provisions of Army Regulation 15-185 (Army Board for Correction of Military Records).  Submitting such an application is not proper until all other avenues of redress have been exhausted; and

		(8)  enter into a written agreement with the Finance and Accounting Office to repay the debt by installment.

	b.  He was advised that submission of a request for reconsideration, a hearing, or remission or cancellation of indebtedness stops all collection action pending a decision made by the appropriate official.

10.  On 9 April 2010, he requested reconsideration of the decision to assess financial liability based on legal error.  He stated that assessing financial liability without the command meeting its burden of proof that he acted negligently constitutes legal error.  He maintained that the police officer's citation for violating Ohio Code 4511.20.2 did not prove he acted negligently and cited the same arguments and objections stated in his current application for reconsideration.

11.  Headquarters, U.S. Army Recruiting Command, memorandum, dated 2 September 2010, subject:  Request for Reconsideration, FLIPL Number 
W17MAAXXXX-10 ($3,552.25), denied his request for reconsideration.

12.  Headquarters, U.S. Army 3rd Recruiting Brigade, memorandum, dated 17 September 2010, subject:  FLIPL Number W17MAAXXXX-10 ($3,552.25), notified him that his FLIPL was considered closed at the brigade level and was sent to his servicing Finance and Accounting Office.

13.  On 14 October 2010, he requested a hearing to refute financial liability based on legal error and requested rescission of financial liability.

14.  A DD Form 2481 (Request for Recovery of Debt Due the United States by Salary Offset), dated 24 May 2011, shows the right to collect the debt based on FLIPL Number W17MAAXXXX-10 accrued on 17 September 2010 in the amount of $3,552.25 to be collected in 51 installments of $69.00.

15.  In a self-authored memorandum for record, dated 26 September 2011, subject:  Request for Hearing, FLIPL Number W17MAAXXXX-10, $4,736.34 (Reduced to $3,552.25), (Applicant), he requested a hearing and stated the Army had not submitted evidence that would hold him accountable under the definition of "gross negligence."  He further stated the Army had not provided him with access to inspect and copy records relating to this matter in accordance with Army Regulation 735-5, chapter 13, whereby denying him due process.  He stated he was not informed of proper procedures for filing his request for a hearing and had money taken from his pay without prior notification.  He stated the weather conditions were atrocious; he did everything humanly possible to avoid the accident and the Army did not prove otherwise.  He requested a determination of nonnegligence and reimbursement for funds taken from his pay.

16.  On 14 October 2011, he requested a hearing to refute his financial liability based on legal error and rescission of financial liability.

17.  An email message from the USAREC budget analyst to a DFAS official, dated 6 January 2012, subject:  Civilian Payroll Debt Deduction, stated the DD Form 2481 requesting involuntary collection of a $3,552.25 debt was falsified and done without his knowledge or consent.  Upon talking to the applicant, it appeared that he was not provided the legal right to an appeal hearing in accordance with Department of Defense Financial Management Regulation, Volume 8, chapter 8.  The budget analyst requested suspension of this collection until a hearing could take place.

18.  In a letter, dated 30 March 2012, DFAS advised him that his request for a hearing to contest the validity of the debt was completed.  An administrative hearing was determined to be appropriate.  The hearing was accomplished by reviewing the records presented to validate the debt for the purpose of salary offset.  The summary of the record and hearing decision determined the applicant received due process rights in accordance with Army Regulation 735-5.  Although the applicant requested waiver of financial liability, it is not within the purview or authority of an administrative hearing to waive or cancel debt.  The hearing determined the financial liability accessed against the applicant in the amount of $3,552.25 was valid and collection by salary offset was proper.  The decision was final with no further appeal allowed.  He was advised of his right to seek relief by applying to the ABCMR.  A copy of the decision was enclosed and also provided to Headquarters, U.S. Army 3rd Recruiting Brigade, for action.  The summary record and hearing decision noted a hearing decision should be issued within 60 days from the date the debtor submits a hearing request.  Due to current hearing receipts and transfer of work, the decision was not provided to the applicant in a timely manner.

19.  On 8 May 2012, he submitted an application to the ABCMR for relief from financial liability for FLIPL Number W17MAAXXXX-10 wherein he presented the same arguments and objections stated in his current application for reconsideration.

20.  On 2 May 2013, after careful consideration of the available evidence, the ABCMR determined the overall merits of his case were insufficient to grant him relief from financial liability and denied his request.

21.  Army Regulation 735-5 provides that the purpose of a FLIPL is to document the circumstances concerning the loss, damage, or destruction of U.S. 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.

	a.  Chapter 13 specifies guidance for FLIPLs and provides that:

		(1)  The appointing authority, when designated, has the option to shorten the FLIPL process when the facts and circumstances permit.  Financial liability can be assessed when the appointing authority can establish from the information contained in blocks 9 and 10 of the DD Form 200 and the attached exhibits that negligence or willful misconduct was the proximate cause of the loss or damage of U.S. Government property.

		(2)  Before holding a person financially liable for a loss to the U.S. Government, the facts must clearly show 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.

		(3)  Whether a Soldier's acts or omissions constitute negligence depends on the circumstances of each case.

		(4)  Before individuals are held financially liable, they must receive notice and the opportunity to exercise their rights.  Notification of the respondent will be accomplished by the approving authority using a memorandum.  The individual has the right to inspect and copy Army records relating to the debt, obtain free legal advice from the servicing legal assistance office, request reconsideration of the assessment of financial liability based on legal error.

	b.  Paragraph 14-32 states upon completion of a FLIPL for accidents involving GOV and leased vehicles that finds a U.S. Government employee, through simple negligence, caused an accident involving a GOV or leased vehicle, the approving authority may waive financial liability or may reduce the amount of financial liability assessed against a member or employee.  The decision to waive or reduce the amount of financial liability charged will be based on the approving authority's review of all the pertinent information concerning the accident.

	c.  The glossary defines the following terms:

		(1)  Simple Negligence – the failure to act as a reasonably prudent person would have acted under similar circumstances.

		(2)  Gross Negligence – an extreme departure from the course of action to be expected of a reasonably prudent person, all circumstances being considered.  The act is characterized by a reckless, deliberate, or wanton disregard for the foreseeable consequences.

		(3)  Willful Misconduct – any intentionally wrongful or unlawful act dealing with the property concerned.

		(4)  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.

22.  Department of Defense Financial Management Regulation 7000.14-R, volume 5, paragraph 281001F, states, "When a debtor has requested and is entitled to a hearing in conjunction with an administrative offset, the DCMO shall determine whether an administrative or oral hearing is appropriate.  An oral hearing is not required with respect to determinations of indebtedness that do not involve issues of credibility or veracity and when the DCMO has determined that review of the written record is an adequate means to discover and correct any prior mistakes.  When a debtor has requested a hearing and the DCMO determines that an oral hearing is not required, the DCMO must provide an administrative hearing."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the police report submitted with his request for reconsideration supports his claim that no evidence used in the U.S. Government's case indicated or would lead to a finding of negligence on his part.  He stated he was driving at or below the posted speed limit of 25 miles per hour, keeping a proper lookout, and exercising proper care to keep the GOV under control.

2.  Contrary to his claims, the police report of the vehicular accident does not offer proof of lack of negligence on his part.  The police report stated he was traveling northbound on U.S. Route 23 from the Interstate 270 entrance ramp on 2 December 2009 when he ran off the road to the left, striking the guard rail.  It was raining and there was standing water at the bottom of the ramp.  He was traveling at a speed of 45 miles per hour in a maximum 50 miles per hour posted zone.  The contributing circumstances listed the applicant's failure to control the vehicle.  By his own admission, the responding police officer cited him for failure to maintain control of his vehicle.  In this regard, the evidence clearly shows his conduct (acts or omissions) was the proximate cause of the loss or damage to the GOV.

3.  In addition to the police report, he presented the same arguments and objections stated in his previous application for relief from financial liability.

4.  He contends the Army did not provide him with access to inspect and copy records relating to this matter in accordance with Army Regulation 735-5, chapter 13, thereby denying him due process.  He stated he was not informed of proper procedures for filing his request for a hearing and had money taken from his pay without prior notification.

5.  Contrary to his claims, the memorandum from Headquarters, U.S. Army 3rd Recruiting Brigade, dated 26 February 2010, notified him that the U.S. Government assessed financial liability against him in the amount of $3,552.25 for losses investigated under the subject FLIPL.

	a.  The memorandum advised him of his rights to:

		(1)  inspect and copy Army records relating to the matter;

		(2)  obtain legal advice relating to assessment of financial liability per Army Regulation 27-3;

		(3)  request reconsideration of the assessment of financial liability on the basis of legal error;

		(4)  request a hearing concerning the amount of the debt or the terms of any proposed repayment schedule;

		(5)  request remission or cancellation of indebtedness under the provisions of Army Regulation 600-4;

		(6)  request an extension of the collection period;

		(7)  submit an application to the ABCMR under the provisions of Army Regulation 15-185 after all other avenues of redress have been exhausted; and

		(8)  enter into a written agreement with the Finance and Accounting Office to repay the debt by installment.

	b.  He was advised that submission of a request for reconsideration, a hearing, or remission or cancellation of indebtedness stops all collection action pending a decision made by the appropriate official.  This action is separate from the appeals process.  If action is taken, he should initiate the request immediately after notification of financial liability.  Any monies collected prior to the date subject request is verified by the unit commander will not be considered, nor reimbursed, if subject request is approved.

6.  He further contends he was denied due process under the provisions of Department of Defense Financial Management Regulation 7000.14-R, volume 5, paragraph 281001F, which states, "When a debtor has requested and is entitled to a hearing in conjunction with an administrative offset, the DCMO shall determine whether an administrative or oral hearing is appropriate.  An oral hearing is not required with respect to determinations of indebtedness that do not involve issues of credibility or veracity and when the DCMO has determined that review of the written record is an adequate means to discover and correct any prior mistakes…."

7.  Contrary to his claims, he omitted the final sentence of paragraph 281001F which clearly states, "When a debtor has requested a hearing and the DCMO determines that an oral hearing is not required, the DCMO must provide an administrative hearing."  The DCMO determined sufficient information existed to provide a clear understanding of the circumstances surrounding the loss or damage of U.S. Government property and to determine the proximate cause.  DFAS advised him in a letter, dated 30 March 2012, that his request for a hearing to contest the validity of the debt was completed.  An administrative hearing was determined to be appropriate.  The hearing was accomplished by reviewing the records presented to validate the debt for the purpose of salary offset.  The hearing determined the financial liability assessed against the applicant in the amount of $3,552.25 was valid and collection by salary offset was proper.  A copy of the decision was enclosed and also provided to Headquarters, U.S. Army 3rd Recruiting Brigade, for action.

8.  The evidence of record shows the FLIPL was conducted in accordance with all applicable regulations.  All requirements of law and regulations were met and the applicant's rights were fully protected.  He provided neither sufficient evidence nor probative argument to overcome the decision of the ABCMR set forth in Docket Number AR20120010382, dated 2 May 2013.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120010382, dated 2 May 2013.



      ______________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)                                         AR20140008452



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ABCMR Record of Proceedings (cont)                                         AR20140008452



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