IN THE CASE OF:	  

		BOARD DATE:	  8 OCTOBER 2015

		DOCKET NUMBER:  AR20150002354 


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, in effect, correction of his records to show he was not found liable for the loss of U.S. Government property in the amount of $1,657.32 and repayment in the amount of $1,657.32 for a debt incurred as a result of a Financial Liability Investigation of Property Loss (FLIPL).

2.  The applicant states:

* he cleared his hand receipt when he was discharged in 2004
* he turned in all equipment to the supply sergeant for Battery A, 3rd Battalion, 115th Field Artillery Battalion, 196th Field Artillery Brigade
* he is not able to find the document showing a zero balance due to a divorce and moving several times since 2004
* he would like to point out no one is able to produce documentation shown he is signed for the equipment

3.  The applicant provides:

* three DA Forms 2823 (Sworn Statement)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* discharge orders
* Honorable Discharge Certificate
* 
DD Form 200 (FLIPL), dated 5 December 2011, and associated documents
* DA Form 7531 (Checklist and Tracking Document for FLIPL)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Army National Guard (ARNG) on 3 November 1998 and trained as a field artillery crewmember.  On 2 November 2004, he was honorably discharged from the ARNG due to expiration of active status commitment in the Selected Reserve.  His NGB Form 22 shows his station or installation at which effected was Battery A, 3rd Battalion, 115th Field Artillery Battalion, in Memphis, TN.

3.  He provided a sworn statement from a staff sergeant assigned to Battery A, Regimental Fires Squadron, 278th Armored Cavalry Regiment, dated 30 November 2011, who states:

* upon returning from Iraq in 2010 he was tasked with cleaning up the industrial security manual account
* he found the applicant had a record under the unit identification code the in industrial security manual
* he researched further and found the applicant was never a member of Battery A, Regimental Fires Squadron, 278th Armored Cavalry Regiment, in Maryville or part of the detachment in Pigeon Forge, TN
* the applicant has a home of record in Memphis, TN
* all evidence points to the applicant being a part of the 3rd Battalion, 115th Field Artillery Battalion, in Memphis, TN, which after the merge they took their unit identification code
* he was unable to contact the applicant or find where he was drilling and research what happened with him not clearing the unit
* he does not have any kind of signed record on the applicant due to him never being at that unit
* he started the FLIPL process to try and clear this matter up

4.  A DD Form 200, dated 9 November 2011, shows an investigation of property loss was conducted.  Item 12a (Negligence or Abuse Evident/Suspected) of the form shows the responsible officer marked "No" and recommended it be processed and cleared because the Soldier had never been a member of the unit.  On 5 December 2011, the approving authority found the applicant liable in the amount of $1,657.32 for the lost property.

5.  On 8 December 2011, he was notified that an approved charge of financial liability in the amount of $1,657.32 was assessed against him by the U.S. Government for the loss of U.S. Government property.

6.  He provided a sworn statement from a staff sergeant assigned to Detachment 1, Troop B, Regimental Fires Squadron, 278th Armored Cavalry Regiment, dated 27 January 2015, who states:

* the applicant contacted him and informed him he was being charged with equipment he had turned in when he was discharged from the ARNG in 2004
* he started to investigate the issue for the applicant
* he spoke with a master sergeant at the Tennessee Central Issue Facility located in Nashville, TN, who reported her office had no record of the applicant receiving or turning in his gear

7.  In the processing of this case, a staff advisory opinion was obtained from the Director of Supply, Department of the Army Office of the Deputy Chief of Staff, 
G-4.  The advisory official recommends reversing the financial liability assessed against the applicant, refunding the amount of $1,657.32, and correcting his records to show he was not financially liable.  The opinion states:

	a.  In accordance with Army Regulation 600-8-101 (Personnel Processing), each Soldier is required to clear his/her installation prior to departure.  The supply room and the commander are required to validate a DA Form 137-1 (Unit Clearing Record) and DA Form 137-2 (Installation Clearance Record) prior to any Soldier signing out of the unit/installation.

	b.  The Soldier was officially discharged from the ARNG on 24 January 2005 (effective date of his discharge was 2 November 2004) and the FLIPL was initiated almost 7 years later on 30 November 2011.

	c.  The unit did try to notify the applicant that he was financially liable for equipment to no avail.  The first notification the applicant received informing him that he was financially liable for equipment was nearly 3 years later in August 2014 by the Defense Finance and Accounting Service.

8.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond.

REFERENCES:

Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes basic policies and procedures in accounting for Army property and accounting for lost, damaged, or destroyed Army property.  It states that an investigating officer's responsibility is to determine the cause and value of the loss, damage, or destruction of U.S. Government property listed on the FLIPL and to determine if assessment of financial liability is warranted.  Individuals may be held financially liable for the loss, damage, or destruction of U.S. Government property if they were negligent or have committed willful misconduct and their negligence or willful misconduct is the proximate cause of that loss, damage, or destruction.

DISCUSSION:

1.  The applicant contends he turned his equipment in to the supply sergeant for his unit (Battery A, 3rd Battalion, 115th Field Artillery Battalion, 196th Field Artillery Brigade) in 2004 and he should not be held financially liable for any amount.

2.  The evidence shows:

* the applicant was discharged from the ARNG on 2 November 2004
* his unit of assignment at separation was Battery A, 3rd Battalion, 115th Field Artillery Battalion
* the FLIPL was initiated in November 2011
* the responsible officer on the DD Form 200 indicated there was no negligence or abuse evident/suspected and recommended that it be processed and cleared
* the applicant was never a member of the unit missing the equipment
* he was found liable for the loss of U.S. Government property in the amount of $1,657.32

3.  The evidence of record indicates there was no negligence or willful misconduct on the applicant's part and he was unfairly or erroneously assessed liability for the loss of U.S. Government property since he was never assigned or attached to the unit missing the equipment.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)                                         AR20150002354



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


0Enclosure 2

ABCMR Record of Proceedings (cont)                                         AR20150002354



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1