IN THE CASE OF: BOARD DATE: 17 July 2014 DOCKET NUMBER: AR20130018743 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 that he be relieved of financial liability imposed by Financial Liability Investigation of Property Loss (FLIPL) Number WAQSAA-XX-XXX-XXXX initiated on 9 June 2013. 2. The applicant states he was charged by his outgoing battalion commander for missing property, which was later investigated and found not to be lost, stolen, or destroyed. The battalion commander left Afghanistan prior to his submittal of a rebuttal for the FLIPL. His new battalion commander read his rebuttal and found he should not be held liable, and made the recommendation to the brigade commander. Before the recommendation was forwarded, the brigade commander filed his recommendation that the applicant be held liable for the loss of property. The Brigade S-4 submitted a request for reconsideration to the brigade commander. A few days later, he was informed that he was being held liable. He is requesting further investigation of the FLIPL WAQSAA-XX-XXX-XXXX and that he not be held liable for government property that was never lost, stolen, or destroyed. 3. The applicant provides a DD Form 200 (Financial Liability Investigation of Property Loss) for Inquiry/Investigation Number XX-XXB-XXXX (with enclosures). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Massachusetts Army National Guard on 2 October 2001. He is currently serving as a staff sergeant (SSG) in the Active Guard Reserve (AGR) program assigned to the 183rd Engineer Detachment Survey and Design. At the time of the FLIPL he was the supply sergeant for the 181st Engineer Company (Vertical), 20th Engineer Battalion, Afghanistan. 2. On 3 June 2013, a FLIPL was initiated and an investigating officer (IO) appointed. The IO conducted an investigation into the facts and circumstances surrounding the loss of blast protective undergarments for the 181st Engineer Company, 20th Engineer Battalion. 3. On 18 June 2013, the IO completed his investigation. He determined there was a significant shortage of blast protective undergarments. He found the shortage was preventable had a complete inventory been conducted by either sergeant (SGT) M_____ or the applicant. Although SGT M______ signed the original hand receipt from the Army's Rapid Fielding Initiative (RFI), the applicant was the final hand receipt holder. The IO recommended the applicant be held responsible for the loss of the blast protective undergarments. 4. The brigade Judge Advocate found the Financial Liability Investigation substantially complied with legal requirements, there were no procedural irregularities, the findings were supported with evidence, and the recommendations were consistent with the findings. It was his opinion that SGT M______ in addition with the applicant be held liable for the loss. 5. On 20 June 2013, the responsible officer – the person responsible for the property on unit property records – reviewed the investigation and disagreed with the IO's findings. The responsible officer found the applicant not to be negligent. He forwarded the FLIPL to the appointing authority. 6. On 21 June 2013, the appointing authority disapproved the responsible officer recommendation stating he did suspect negligence because both SGT M______ and the applicant failed to conduct complete inventories and that they be held liable. The appointing authority forwarded the investigation to the FLIPL approving authority who, on 13 July 2014, concurred with the appointing authority. 7. By memorandum, the applicant's new battalion commander recommended that the applicant and SGT M______ be relieved of financial liability. He stated the facts of the case clearly indicated the loss of government property was a result of an accounting error at the Central Issue Facility (CIF). The articles in question were more than likely not lost or stolen but, rather, accounted for incorrectly by the personnel at CIF. 8. The brigade commander signed a notification letter and the applicant was notified he was being recommended for charges of financial liability to the United States Government in the amount of $3,650.70 for the loss of Government property. 9. On 13 July 2013, the applicant acknowledged receipt of notice recommending him for charges of financial liability. 10. On 16 July 2013, the applicant provided a rebuttal to the FLIPL. He stated there was no loss of blast protective undergarments. The shortage originated from the RFI and the IO found the blast protective undergarments were not lost under SGT M______'s or his control. He stated that he properly safeguarded the blast protective undergarments by placing them in a secure conex when he received them. He should not be automatically liable for the loss of equipment for which he was the hand receipt holder. He should be held liable for the loss only if he was negligent with respect to the property. He made a mistake by not conducting a full inventory and assumed the RFI documents were accurate. No blast protective undergarments were lost under his control because they were secured at all times. The missing blast protective undergarments were most likely still at the RFI as indicated by the IO. 11. 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 the financial liability assessed against the applicant be sustained as recommended by the approving authority for the FLIPL. The opinion states: * the applicant failed to maintain accountability of the blast protective undergarments entrusted to him * the governing regulation states direct responsibility is the obligation of a person to ensure all Government property for which they have receipted, is properly used and cared for, and that proper custody, safekeeping, and disposition are provided * personnel with custodial responsibility are rated by and answerable directly to the accountability officer or the individual having direct responsibility for the property 12. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He did not respond. 13. Army Regulation 735-5 (Policies and Procedures for Property Accountability) prescribes the basic policies and procedures in accounting for Army property. Chapter 13 prescribes the accounting procedures to be used when Department of the Army (DA) property is discovered lost, damaged, or destroyed through causes other than fair wear and tear. It provides authorized methods to obtain relief from property responsibility and accountability. It also prescribes the Department of the Army policy on such losses and financial liability. It states that the FLIPL prescribed by the DOD Financial Management Regulation, volume 12, chapter 7, replaces the old Army report of survey system. 14. Army Regulation 735-5 provides for the following procedures: a. The FLIPL process starts when the appointing authority, usually a lieutenant colonel or above (most often a battalion or squadron commander), appoints an IO to investigate the facts surrounding the loss. The IO will be a commissioned or warrant officer, a noncommissioned officer with the rank of sergeant first class or above, or a civilian employee GS-7 or above. The IO must be senior in grade to the individual subject to potential liability unless war or military exigency requires otherwise. b. The IO investigates and makes initial findings as to what happened. A copy of those initial findings is then given to the individual subject to potential liability. That individual has 7 days to prepare and submit a rebuttal back to the IO. The person will have 15 days if the findings are mailed to him or her. Mailing may be appropriate if the IO and the individual are not assigned to the same installation (perhaps the individual PCS'ed during the investigation process). The IO will consider the rebuttal along with the findings, and make a recommendation about who should be held liable and in what amount. The recommendation is made to the appointing authority. c. The appointing authority reviews the action taken by the IO, and either requests further investigation or concurs in the IO’s findings. The appointing authority then forwards the FLIPL to the approving authority. The approving authority, usually a colonel or above (most often a brigade or regiment commander or a division or installation chief of staff), approves or disapproves the IO’s recommendation. Before making his decision, the approving authority receives a legal opinion that the findings are legally sufficient and that the FLIPL was completed in accordance with Army Regulation 735-5. 15. Army Regulation 735-5 states that in order to assess liability, the approving authority must find: 1) the person to be held liable had a duty/responsibility to take care of the property; 2) the person failed to carry-out that duty (negligence); and 3) the person's failure led to the loss (proximate cause). The proximate cause is defined as 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 predominate cause, from which the loss or damage followed as a natural, direct, and immediate consequence. In short, proximate cause means that the loss would not have happened but for the negligence of the individual. Finally, the approving authority will notify the person to be charged that financial liability has been assessed. The notification will be in memorandum format and will inform the person they have the right to request reconsideration of (appeal) the approving authority's decision. DISCUSSION AND CONCLUSIONS: 1. Upon the departure of applicant's battalion commander an inventory for missing property showed that a significant amount of blast protective undergarments was missing. Evidence of record shows the applicant signed a hand receipt for his unit's blast protective undergarments without actually ensuring the property was fully inventoried. The applicant states the FLIPL IO found that there was no lost, stolen, or destroyed property; however, the available record shows the IO recommended the applicant be held liable for the loss of Government property. 2. The FLIPL IO recommended the applicant be assessed the liability for the loss of blast protective undergarments. An approved charge of financial liability was assessed against him by the US Government, in the amount of $3,650.70, for the loss of Government property under the FLIPL investigation of lost property. The legal review determined the investigation to be legally sufficient and that evidence supported the IO's findings and recommendations. 3. He has provided no evidence to show the items were still at the RFI (and not lost). 4. Therefore, in view of the above, and in conjunction with the opinion provided by the Office of the Deputy Chief of Staff, G-4, there is an insufficient evidentiary basis for granting the applicant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ___X____ ___X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130018743 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130018743 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1