IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140016470 


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 finding of financial liability made against him in the Financial Liability Investigation of Property Loss (FLIPL) Number WAXXXA-12-0417 be reversed and reimbursement of the $1,312.33 he already paid.

2.  The applicant states:

	a.  After examining all of the evidence in the FLIPL and the Army Regulation (AR) 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers) investigation, as well as the subsequent rebuttal and request for reconsideration, a preponderance of the evidence does not support the findings for at least one of the elements of liability.  Furthermore, the approved FLIPL improperly assessed liability against him in an amount greater than authorized by the regulation. 

	b.  The AR 15-6 investigation and corresponding FLIPL originated in January 2013 after a change of command for Headquarters and Headquarters Company (HHC), 3rd Battalion, 187th Infantry Regiment, 3rd Brigade Combat Team (BCT), 101st Airborne Division, where he served as the executive officer (XO).  As the evidence shows, the outgoing commander, Captain (CPT) CL, did not practice adequate command supply discipline and was not personally involved with remedying supply issues within the company.  As his XO since May 2012, it primarily fell to him to try and correct the myriad of supply issues that existed within the company during the initial stages of deployment, all while undergoing final training, the subsequent pack-out and property book split, and the eventual deployment to Afghanistan in September 2012. 
	c.  Despite their efforts, both at Fort Campbell and while forward, his supply sergeant and he were unable to remedy all of the issues by the time CPT CL left command.  Several items were still missing during the change of command inventories, two of which were an optical character recognition unit (scanner), and a digital computer system.  In his findings, the IO determined that he (the applicant) was simply negligent due to his conduct in overseeing the property book split prior to deployment, and that negligence was the proximate cause of the loss.  He was initially recommended for liability in the amount of $1,798.47 after the IO calculated the actual loss using the depreciated value method in AR 735-5 (Policies and Procedures for Property Accountability), appendix B-2b, and was notified of the IO’s findings and recommended liability on or about 6 February 2013.  

	d.  On 12 February 2013, he submitted his rebuttal and included several pieces of new evidence, including statements from individuals that the IO had not interviewed.  He disputed the IO’s determination that the loss of the optical scanner could be attributed to his actions since evidence showed the loss occurred in March 2012, 2 months before he was assigned to HHC.  He also disputed the IO’s findings that he had been simply negligent, and he highlighted the degree that CPT CL’s complete lack of effort as commander contributed to an environment where he was serving as both the de facto commander and XO.  Therefore, he was not able to properly manage the Command Supply Discipline Program (CSDP).  His argument was supported by evidence he submitted in the form of statements from his first sergeant (1SG), supply sergeant, and one of the platoon leaders, and he disputed that his actions were the proximate cause of the loss.

	e.  In a memorandum, dated 5 March 2013, the IO stated, "the evidence does not definitively show when the scanner was lost."  This was despite multiple statements stating the scanner was last seen in March 2012.  On 18 April 2013, the approving authority assessed him liability of $1,798.47.  On 14 May 2013, he submitted a request for reconsideration and again he argued the loss of the scanner occurred in March 2012 before he joined HHC, that his actions were not negligent given the lack of support from his commander during the deployment cycle, and that all of his actions as both an XO for a rifle company and HHC supported the conclusion that he acted in a manner that a reasonably prudent person would in the execution of those duties.  On 19 August 2013, his request was denied and forwarded to the appeal authority for review and action. 

	f.  On 11 September 2013, after legal review, the appeal authority maintained liability against him in the amount of $1,312.33.  This was the original amount of liability less the depreciation value of the laptop that he had found after redeploying and $1,312.33 was docked from his September 2013 pay.  He believes he should be relieved of full liability for this loss and, if full relief is not granted, he requests the FLIPL be returned and the loss calculated using the fair market value method in AR 735-5, appendix B-2a.  Statements from him, Staff Sergeant (SSG) CT, and Specialist (SPC) ME, all show the scanner in question was broken and turned in to the S-6 shop in March 2012.  These were the individuals that had daily, working knowledge of the scanner’s whereabouts, and they can best account for it until March 2012.  At that point, accountability was lost and any of his subsequent actions could not be the proximate cause of the loss under the criteria of AR 735-5, paragraph 13-29c.  

	g.  Furthermore, even if his actions could be seen as the proximate cause of the loss, the evidence shows that they were not negligent under AR 735-5, paragraph 13-29b(4).  The scanner was identified as missing before they deployed.  Despite AR 735-5 mandating that he initiate a FLIPL for the loss of the scanner and his (the applicant's) strong recommendation to do so, CPT CL decided not to initiate a FLIPL until the scanner again came up as missing during his change of command inventories.  Therefore, contrary to the IO’s findings, his actions were not those of an irresponsible XO unable to manage a property book split as he specifically identified the loss to his commander in August 2012 and reminded him how he was required to proceed by regulation, actions he didn't take until January 2013 and the FLIPL initiation. 

	h.  The evidence also does not support the broad findings that he was irresponsible in his management of the CSDP.  To the contrary, he was put in a near impossible situation as he was appointed as the HHC XO right after the brigade's Joint Readiness Training Center (JRTC) rotation and as they began the final train up and pack-out for their deployment to Afghanistan.  Immediately prior, he had successfully served as a rifle company XO with zero loss of property.  What he found in HHC was a company where the supply systems had lapsed and the property was just simply not properly accounted for.  While he did what he could to reestablish the systems before they deployed, he was also faced with planning and organizing final training, planning and supervising the large company pack-out and property book split, and then deploying early with the advanced echelon (ADVON).  The tasks were near impossible for a full command team to organize and execute, let alone an XO and 1SG acting without the support of the commander.  

	i.  The evidence in the investigation and his rebuttal show just how distant CPT CL was during that period, disappearing during the duty day, and even taking a month’s leave at a critical moment in the deployment cycle.  He (the applicant) filled the gap left, serving simultaneously as both the de facto commander and XO.  Although he worked to accomplish all tasks, he could not execute the same meticulous attention to the CSDP he had displayed while a rifle company XO given the state and scale of the system.  Given the situation they faced in the weeks before deployment, that was the best, most prudent course of action for him to follow, and therefore it did not rise to the level of simple negligence as defined in AR 735-5, paragraph 13-29b.  His evaluations from that time stated that he had a "mastery" of property accountability dealing with over $35 million of theater property, and successfully managed an "aggressive" CSDP both times he served as an XO.  He was even awarded a Bronze Star Medal for meritorious service during the deployment.

	j.  The facts of his case mirror those in the Army Board for Correction of Military Records (ABCMR) Docket Number AR20100013194, wherein the Board stated "commanders must be able to rely upon management controls and subordinates to account for property…Command responsibility does not imply a strict liability standard."   While he had supervisory instead of command responsibility, the same standards should apply in this case given that the IO’s theory of liability was his "irresponsibility" in property management.  The investigation contains significant procedural error, assessing liability for an amount greater than authorized by AR 735-5.  The assessed value of the loss of the two items was computed using the depreciated value method in AR 735-5, appendix B-2b.  However, appendix B-2a specifically states that the fair market value method is "the preferred method of fixing the value…"  

	k.  A review of the common marketplace shows that fair market value of the two items, both of which were relatively common but obsolete office electronics, was far less than that of the assessed liability.  The scanner was broken and turned in for disposal, making its actual value even less than the standard fair market value.  Once the fair market value was determined, the joint liability against the three respondents should be computed using AR 735-5, table 12-4.  Nobody involved in the liability determination used the correct calculations and he was assessed nearly $1,000 more than authorized.  The situation mirrors ABCMR Docket Number AR2004100344 wherein the Board stated "[a] fair market assessment would have most likely resulted in a much smaller financial assessment…although time consuming, fairness dictates that the applicant should have been afforded this benefit."

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Officer Record Brief (ORB)
* Bronze Star Medal Certificate
* DD Form 200 (FLIPL) Number WAXXXA-12-0417, dated 10 January 2013
* DA Form 7531 (Checklist and Tracking Document for FLIPL), dated 10 January 2013
* fourteen memoranda, dated between 23 January and 18 September 2013
* DA Form 200 (Transmittal Record), dated 7 February 2013 
* Defense Finance and Accounting Service (DFAS) Form 702 (DFAS Military Leave and Earnings Statement (LES)), for September 2013
* twenty DA Forms 2823 (Sworn Statement), dated between 17 December 2012 and 12 February 2013
* DA Form 3975 (Military Police Report), dated 22 November 2012
* a Unit Level Hand Receipt, dated 13 August 2012 
* two DA Forms 67-8 (Officer Evaluation Report) covering the rated periods from 26 August 2011 through 10 December 2012
* three DA Forms 2062 (Hand Receipt/Annex Number)
* nine pages of Sensitive Item Inventory Listing
* nine pages of photographs of equipment and/or serial number listings
* AR20100013194 Record of Proceedings (ROP), dated 5 April 2011
* AR2004100344 ROP, dated 28 June 2005

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a second lieutenant (2LT) in the Regular Army and he entered active duty on 19 November 2009.  He was promoted to the rank/grade of first lieutenant on 19 May 2011. 

2.  On 18 May 2012, he was assigned as the XO to HHC, 3rd Battalion, 187th Infantry Regiment, Fort Campbell, KY.  On 13 August 2012, he deployed with his unit to Afghanistan in support of OEF.

3.  On 23 January 2013, Major (MAJ) JWU was appointed the FLIPL IO pursuant to AR 15-6 and AR 735-5 to conduct an informal investigation into the facts and circumstances surrounding the loss of equipment belonging to HHC, 3rd Battalion, 187th Infantry Regiment.  The equipment under investigation was listed on the attached DD Form 200 and he was tasked, in part, to document and determine:

* a full and accurate account of what happened
* who was the last person responsible for the item
* what procedures did the unit take to try and locate the item
* who had responsibility for the item and what kind of responsibility did that person have
* what procedures did the unit use for maintaining accountability of the item; were the procedures followed 
* was the person responsible for the item negligent in his or her duties or through his or her actions (refer to AR 735-5, paragraph 13-39, for definition of negligence)
* was the negligence the proximate cause of the loss of the item (refer to AR 735-5, paragraph 13-39, for definition of proximate cause)

4.  In a memorandum, dated 4 February 2013, the IO stated, in part, he conducted an investigation into the loss of accountability of one PVS-26 night vision scope, one PVS-29 night vision scope, one M68 close combat optic, two unclassified laptops, one helmet mounted sensor system, one optical character recognition unit, one PVS-7D night vision device, and 11 sets of M22 binoculars valued at $36,327.92. 

	a.  As the company prepared to change command in December 2012, the incoming commander, supply sergeant, and new XO discovered the above items were missing.  The company changed command on 1 January 2013 and the former commander, CPT CL, exhausted all means to find his equipment on 10 January 2013.  All of the items were on the forward property book but most were in fact left at Fort Campbell.  This demonstrated a clear failure to properly split the company property book.  In fact, there were over 100 forward property book items that were left in the rear.  

	b.  CPT CL signed out the two night vision scopes on 23 May 2012; SPC JS and SP KL, from two separate rifle companies, signed for them and they were last physically accounted for by 2LT BT, HHC's sensitive item (SI) inventory officer.  From August to November 2012, the inventorying officers accounted for the items using only DA Forms 2062 and did not physically or visually account for them. 

	c.  SGT O, an HHC medic attached to B Company, signed for the M68 and deployed with B Company on 9 September 2012.  He did not sign out the M68 from B Company's armsroom and the item did not deploy to Afghanistan.  It remained in B Company's armsroom and on HHC's forward property book, and was accounted for on the October and November 2012 SI inventory by CPT CL.  The helmet mounted sensor system and 11 M22 binoculars were last seen by the HHC, rear detachment noncommissioned officer in charge in November 2012 and were stored in the HHC supply cage.  On 22 November 2012, someone broke into the supply cage and stole the items.  There was an open police investigation at Fort Campbell.

	d.  The two missing laptops were on the forward property book.  The October 2012 10 percent (%) cyclic inventory listed the items and CPT CL signed it showing the items were accounted for in Afghanistan (emphasis added).  However, neither the forward property book officer (PBO) nor the company supply sergeant could produce a signed version of the cyclic inventory.  Because of this and other suspicious failures, the former PBO NCO had been reduced and removed from her position.

	e.  The digital optical scanner was also on the property book but was last seen by numerous Soldiers in March 2012 and many stated they gave the scanner to SSG AM, the company supply sergeant at the time.  SSG AM received a reduction in rank to SGT in January 2012 and did a permanent change of duty (PCS) to Fort Knox in March 2012.  Attempts to reach him for comment failed.  [The Applicant] and SSG AF realized the scanner was missing in August 2012.  [The Applicant] claimed he told CPT CL that it was missing and the response was they must continue to look for it; no one initiated a FLIPL and the item also appeared on the October cyclic inventory.  CPT CL signed his monthly property book in October and November 2012 despite knowing it was missing.  At no point prior to November 2012 did [the Applicant] or CPT CL initiate any type of change document to initiate a FLIPL for this item.

	f.  The PVS-7D was last accounted for on the November 2012 SI report.  CPT CL signed the inventory with "no discrepancies."  In doing this, he accounted for the item forward based on 2LT BT's inventory and that means 2LT BT did not account for the item or it was lost sometime after the November inventory.  Regardless, as CPT CL did not sub-hand receipt the item, it made him the primary hand receipt holder for the PVS-7D.

	g.  He found the items listed on the attached DD Form 200 were lost and it was difficult to determine the exact time and circumstances around each loss.  However, he found the root reason the company lost accountability was the gross failure of a proper property book split.  On 16 August 2012, [the Applicant] reported to him that the property book was successfully split.  All of the items lost were on the forward book but left behind at Fort Campbell. 

	h.  The loss of all of the items stemmed from CPT CL's failure to instill positive command supply discipline integrity in his company.  CPT CL's initial failure was his company's failed property book split.  CPT CL had command responsibility for the items in accordance with AR 735-5.  He had responsibility to ensure proper use, care, custody, and safekeeping of the all the items regardless of whether they were in use or storage.

	i.  SSG AF had custodial responsibility and [the Applicant] had supervisory responsibility for all of the lost items.  They failed to execute the company property book split and to maintain accurate records.  Furthermore, they wittingly never fixed the problem once deployed.
	j.  CPT CL, SSG AF, and [the Applicant] were all culpable for the loss of the two laptops and digital scanner.  By failing to properly split the property book in August 2012, all three displayed simple negligence.  It is reasonable to expect a company commander, supply sergeant, and XO to understand the importance of a thorough property book split.  

	k.  He found CPT CL's leadership and supervision negligent.  He failed to supervise his XO and supply sergeant and failed to act once an item was deemed lost or unaccounted for.  As an example, [the Applicant] told CPT CL the digital scanner was missing in August 2012 but CPT CL continued to sign his monthly property book and accounted for the item.

	l.  He found [the Applicant] negligent in his duties.  [The Applicant] failed to supervise the execution of the property book split and failed to fix the issues during the 4 months deployed.  He failed to properly supervise the supply sergeant and failed to ensure the new armorer conducted a joint inventory of his equipment.  As the XO, he failed his commanding officer.  A reasonably prudent officer of his rank and experience would not have been this irresponsible.  

	m.  The proximate cause of the loss of the two laptops and digital scanner was the negligence of CPT CL, SSG AF, and [the Applicant].  Their collective failure to properly split the property book and ensure the correct items went forward resulted in confusion as to the location of the items and ultimately led to the items being unaccounted and lost.  The loss was a reasonably foreseeable result of this negligence.

	n.  He recommended that CPT CL, [the Applicant], and SSG AF share the financial liability for the two laptops and digital scanner.  The depreciated total value of the three items was $1,798.47 (each), less than 1 month's base pay, and the applicant should be held financially liable for $1,798.47.

5.  On 12 February 2013, the applicant submitted a rebuttal to the FLIPL and stated, in part:

	a.  He had no responsibility for the computers or digital scanner as he was not the primary or sub-hand receipt holder, was not in personal control of the equipment, and was found to have supervisory responsibility.  AR 735-5 defined supervisory responsibility as the obligation of a supervisor to ensure all Government property issued to, or used by his or her subordinates, was properly used and cared for, and that proper custody, safekeeping and disposition of the property was provides.  The non-stolen laptop was only on the commander's hand receipt and, as the commander was not his subordinate, he could not have supervisory responsibility for it.  
	b.  The digital scanner was lost and last accounted for before he became the XO; therefore, he could not supervise the individuals who signed for the equipment or be responsible for the equipment.  The IO stated multiple Soldiers attested the accountability of the scanner was lost in March 2012.  Prior to property transfers to the rear detachment, each section was given updated copies of their hand receipts and the section highlighted which items were to be split.  S-1 did not identify the scanner as being transferred to the rear detachment.  After conducting a property book scrub [in August 2012], he advised CPT CL the scanner was missing and that a FLIPL needed to initiated, instead CPT CL decided to keep looking for it .  In October 2012, SSG AF also advised CPT CL to initiate a FLIPL.  The loss of the digital scanner was not a result of the property split process and he was not negligent.

	c.  One of the missing laptops was inventoried by CPT CL for the October 2012 cyclic inventory.  CPT CL's lack of care for cyclic inventories was a trend and not an isolated incident.  As the primary hand receipt holder for HHC's organizational equipment, CPT CL worked directly with the company supply sergeant and did not identify the discrepancies.  Prior to CPT CL's change of command, he (the applicant) did not have an opportunity to conduct a 100% inventory of CPT CL's property.  The laptop was not identified for transfer to the rear detachment and his actions were not negligent.

	d.  The IO had not proven that he had responsibility for the property or that he breached a duty of care with regard to the lost equipment.  He did not breach a duty of care with an act or omission, nor was an act or omission on his part the proximate cause for the loss of the equipment.  Absent proof of those elements of negligence, he truly believed he should not be held liable.

6.  In a memorandum, dated 16 February 2013, the IO stated, in part, after considering the rebuttal, he realized he made a mathematical mistake and should have found the applicant liable for $1,870.42 vice $1,798.47.  However, he found it fair to recommend liability for the lesser amount of $1,798.47.

7.  On 28 February 2013, the applicant redeployed with his unit to Fort Campbell.

8.  On 1 March 2013, the 3rd BCT Judge Advocate, Afghanistan, completed a legal review of the FLIPL and determined the investigation to be legally sufficient. The reviewing officer stated sufficient evidence supported the IO's findings and his recommendations were consistent with the findings.  The FLIPL was subsequently approved by the approving authority.

9.  By memorandum, dated 18 April 2013, the applicant was notified by Brigadier General AP, Deputy Commanding General, Regional Command East, Combined Joint Task Force-101, Afghanistan, that the financial liability of $1,798.47 had been assessed against him in the approved FLIPL Number WAXXXA-12-0417.

10.  On 14 May 2013, the applicant requested reconsideration of the amount of liability assessed against him and stated, in part, after returning from deployment he found one of the missing laptops and asked that it be removed from the FLIPL.  In addition, he reiterated the reasons why he should not have been found liable for any of the missing equipment.  

11.  His appeal was subsequently denied but, as one of the laptops had been found, his financial liability was adjusted to $1,312.33.  The $1,312.33 was deducted from his September 2013 pay.

12.  On 1 November 2013, he was promoted to the rank of CPT.  He was honorably retired on 17 July 2014 in the rank of CPT by reason of permanent disability and he was placed on the Permanent Disability Retirement List on 18 July 2014.  

13.  The applicant provides:

	a.  AR2004100344, dated 28 June 2005, wherein the Board granted partial relief and found a report of survey (ROS) that found the applicant financial liable contained serious flaws even though the IO was justified in finding the applicant seriously negligent in the performance of his duties.  The Board determined the portion of the ROS that found him liable should be expunged and stated that did not bar the command from conducting a new ROS into the matter.

	b.  AR20100013194, dated 5 April 2011, wherein the Board granted full relief and found that although the applicant may have been derelict in his duties in regards to hand receipts, he had executed command actions to ensure the safeguarding of Government property and the loss was proximately caused by the inappropriate actions of others.  The Board determined the FLIPL should be corrected to show the applicant was not financially responsible and DFAS should return any monies he had already paid.

14.  In the processing of this case, an advisory opinion, dated 27 October 2014, was received from the Office of the Deputy Chief of Staff (DCS), G-4.  The advisory official recommended approval of the applicant's request for relief and stated:

	a.  The IO did not establish culpability as required by the standards of AR 735-5, paragraph 13-29, which states "Before a person can be held financially liable, the facts must show that he or she, through negligence or willful misconduct, violated a particular duty involving the care of the property."  The IO stated the applicant failed to properly split the property book.  The success of a property book split depends on hand receipt holders determining equipment needed for deployment and providing this information to the supply sergeant or commander.  The applicant could not determine what equipment was needed or loaded for deployment for each hand receipt holder.

	b.  The IO also stated the applicant had supervisory responsibility over the equipment.  AR 735-5, paragraph 2-8, states it is the obligation of a supervisor to ensure all Government property issued to, or used by their subordinates is properly used and cared for, and that proper custody, safekeeping, and disposition are provided.  It is inherent in all supervisory positions, is not contingent upon signed receipts or responsibility statements, and cannot be delegated.  The applicant and supply sergeant notified the commander of missing equipment but the commander continued to sign cyclic inventories and hand receipts.

15.  On 29 October 2014, the applicant was provided a copy of the advisory opinion for his information and comment or rebuttal; however, no response was received.

16.  AR 710-2 (Supply Policy Below the National Level) prescribes policy for supply operations below the national level.  Appendix B implements the CSDP.  It states the CSDP is a commander's program and that commanders will implement the CSDP by using their existing resources.  It further provides program guidance that includes enforcement of supply discipline methods, administrative measures, disciplinary measures, reaction to incidents of nonfinancial liability, and ensuring supply discipline and management controls.  

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 CSDP, 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 is to document the circumstances concerning the loss or damage of Government property and serves as, or support, 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.  A financial liability officer'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 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should not have been found financially liable in FLIPL Number WAXXXA-12-0417 and should be reimbursed the $1,312.33 already paid.

2.  As the result of the FLIPL, the applicant was ultimately found financially liable for a missing laptop and a digital scanner.  The IO found the digital scanner was last accounted for in March 2012 prior to the applicant's being assigned to the unit and that he had notified the commander of the missing equipment but the commander continued to sign the cyclic inventories.  Although he found the responsibility for the losses was the commander's failure to instill positive command supply discipline, he maintained the applicant had supervisory responsibility for the lost items and he was culpable as he was negligent in his duties as he failed to supervise the execution of the property book split.

3.  The advisory official found the FLIPL was flawed as the IO did not establish the applicant's culpability as required by the standards of AR 735-5.  He did not establish that the applicant violated his duties through negligence or willful misconduct, rather, that he failed to properly split the property book.  However, the success of a property book split depends on hand receipt holders determining equipment needed for deployment and providing this information to the supply sergeant/commander.  The applicant was not responsible for determining what equipment was needed for each hand receipt holder.  In addition, the applicant performed his supervisory responsibility by notifying the commander of missing equipment and it was the commander that continued to sign cyclic inventories and hand receipts.

4.  For the purpose of financial liability, by regulation, personal responsibility is defined as the obligation of a person to exercise reasonable and prudent actions to properly use, care for, safeguard, and dispose of all U.S. Government property in his/her physical possession.  Based on the facts surrounding the incident, it appears the applicant did take reasonable actions and is not liable as a matter of law when applying the concepts of simple negligence and proximate cause as defined in Army Regulation 735-5.

5.  In view of the foregoing, and in the interest of justice and equity, it would be appropriate to correct the applicant's records to show he was not found liable and is entitled to correction of his records and reimbursement of all monies collected as a result.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 by:

* showing he was found not financially liable as indicated in FLIPL Number WAXXXA-12-0417, dated 10 January 2013 
* as a result of this correction, the Defense Finance and Accounting Service reimbursing him the $1,312.33 already collected from his pay 



      ___________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)                                         AR20140016470





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ABCMR Record of Proceedings (cont)                                         AR20140016470



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