IN THE CASE OF: BOARD DATE: 7 June 2012 DOCKET NUMBER: AR20110021642 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, then Commander, Company E, 101st Special Troops Battalion (STB), requests reversal of a financial liability investigation of property loss (FLIPL) decision and reimbursement of all monies deducted from his pay as a result of the FLIPL. 2. The applicant states the evidence within the FLIPL shows he had no responsibility for the property listed. Because he refused to sign for the property due to its absence and because it belonged to another company commander, he had no responsibility for the property. Since the other party found liable had responsibility for the lost property, there is insufficient justification to place two-thirds of the liability with him and one-third of the liability with the other party. Further, some of the missing property was located within the other party's unit deployed in support of Operation Enduring Freedom (OEF). 3. The applicant provides: * DD Form 200 (FLIPL) * legal review of the FLIPL from the Brigade Judge Advocate, Headquarters, 101st STB * findings and recommendations for FLIPL WX6XAA-184-11-85 from the Financial Liability Officer, 101st STB * notification of the FLIPL memorandum for the applicant * rebuttal of the FLIPL memorandum from Captain (CPT) H____, Commander, Headquarters and Headquarters Company (HHC), 101st STB * amended findings and recommendations for FLIPL WX6XAA-184-11-85 * appeal of the FLIPL memorandum from the applicant * appeal of the FLIPL memorandum from the Commander, Task Force Lifeliner * legal review of request for reconsideration and appeal memorandum from the Deputy Staff Judge Advocate, Headquarters, 4th Expeditionary Sustainment Command, Joint Sustainment Command-Afghanistan * denial of request for reconsideration of the FLIPL memorandum appeal from the Commander, Headquarters, 4th Expeditionary Sustainment Command, Joint Sustainment Command-Afghanistan CONSIDERATION OF EVIDENCE: 1. The applicant's military record shows he was appointed as a Reserve commissioned officer in the Transportation Corps on 5 May 2006 with prior enlisted service. He entered active duty on 21 May 2006 and he was promoted to CPT on 1 June 2009. At the time of the FLIPL, he was assigned as the Commander, Company E, 101st STB, 101st Sustainment Brigade (SBDE), Fort Campbell, KY. 2. On 13 April 2011, a DD Form 200 was initiated. An investigating officer (IO), an officer assigned to HHC, 101st STB, was appointed on 16 April 2011. 3. The DD Form 200 states: a. During September 2010, the HHC and Company E Commanders and supply sergeants received a change of command inventory briefing from the 101st SBDE with a dollar loss amount of $47,922.68. All hand receipt holders were responsible for inventorying property remaining in Fort Campbell with Company E's Commander and supply clerks. Once the property was inventoried, there were no lateral transfers executed upon the HHC Commander's departure. Unaccounted items have been researched over the last 5 months. Keys are taken by the Company E Commander and supply clerks. b. The night the HHC Commander departed Fort Campbell for Afghanistan, some property accountability issues were brought to the attention of the HHC Commander. c. The Company E Commander stated he accounted for all the property the hand receipt holders inventoried with him which did not reflect the amount of property remaining at Fort Campbell. The lateral transfers were not turned in to the property book officer (PBO) until 4 November 2010 at 1700 hours. The flight for the company commander was set to depart on 4 November 2010 at 2200 hours which did not leave him much time to react. d. In accordance with the brigade S-4's recommendation to remedy the situation, property unaccounted for would be annotated on the property that he (the financial liability officer) signed after the lateral transfers were completed. The battalion chain of command also recommended weekly video telephone conferences (VTC). Since being deployed, there had been multiple VTC's about property issues. The VTC conversations assisted in locating some of the equipment on the property book that was considered missing prior to initiation of this FLIPL. The remaining items on the property book were placed in this FLIPL which reflected the remaining items the Company E Commander could not locate. The total dollar amount of loss was $47,922.68. The 101st SBDE Commander recommended that the applicant be held financially liable in the amount of $35,942.01. However, the form indicated that negligence or abuse was not evident or suspected. 4. On 16 May 2011, CPT H____, Commander, HHC, and the applicant were notified that they were being recommended for charges for financial liability to the U.S. Government in the amount of $35,942.01 for the loss of U.S. Government property investigated under subject of property loss. 5. On 8 July 2011, the IO amended the findings and recommendations for the FLIPL. He stated the following were the major root causes that led to the loss of equipment: a. Regulations – failure by both commanders to conduct an organized joint inventory in accordance with Army regulations. b. Amount of time and urgency – the applicant seemed to lack the urgency and responsibility to conduct the inventory in a timely fashion. The Company E Commander's failure to conduct inventories in a timely manner repeatedly caused the inventory timelines to be delayed. c. Record keeping – failure by Company E's Commander to keep track of items seen and accounted for with notes or annotations. d. Waiting until the last minute – both of the commanders' failure by waiting until the last hour before someone flew out of the country to finalize and send paperwork back and forth to the PBO led to immense confusion and discrepancies, causing equipment to slip through the cracks, becoming unaccounted for. Reconciliation by electronic means – multiple times sending paperwork back and forth via a digital sender – degraded the quality and legibility of the documents. e. Failure by both commanders to conduct an organized joint inventory – both commanders failed to conduct a joint inventory which would have saved themselves and the hand receipt holders time by conducting one inventory. Each commander stated different reasons why a joint inventory was not conducted. The applicant listed multiple reasons why an inventory was not completed right away. 6. The IO recommended: a. All hand receipt holders should be relieved of responsibility for the unaccounted property. It was not their fault that the timelines shifted for the inventories or that they were given the impression that their property was accounted for before they departed for OEF. b. The stated items should be removed from the FLIPL for a reduction of the overall total of $47,922.68. Those items should be dropped since the hand receipt holder never deployed and was still in the rear maintaining accountability. If they did not have accountability or lost the items, then they should be held financially responsible. c. One last effort should be made to locate or account for the equipment by the brigade appointing an officer from another organic battalion to conduct a thorough "total-recall" type inventory. d. If the recommendation is not taken or fails to account for the property, then the commanders should be held financially liable according to the following percentages: the applicant, Commander, Company E – 75 percent due to willful misconduct in his actions and CPT H____, Commander, HHC – 25 percent through negligence in her actions. Those percentages are primarily because the applicant's actions contributed to a greater degree towards the delay, length of inventories, and current lack of accountability for the property. e. Even though CPT H____ was part of the proximate cause for the loss of accountability, she should not be held financially liable for the property. By Army doctrine, Field Manual 10-27-4 (Organization Supply and Services for Unit Leaders), the applicant had command responsibility if not direct responsibility for the property that CPT H____ was signed for and did not bring forward since she was no longer there. f. The unit's command supply discipline program (CSDP) should be reexamined. g. A follow-up should be conducted with the PBO's to clarify procedures and instructions since one of the statements from the HHC Commander stated that "when briefed by the PBO, it was mentioned that I should not be present for the Company C inventory." h. The battalion should establish specific guidelines for change-of-command inventories as well as strict enforcement to adhere to them. Multiple times throughout the applicant's statement he mentioned how he was advised to do inventories at a certain point in time, but he did not. Both commanders also failed to adhere to the brigade's policy and Army regulations. i. The unit should form a collective group to put together and establish a comprehensive guide for change-of-command inventories for young officers. 7. On 12 July 2011, the applicant requested that he not be held liable for the loss on the grounds that he was not responsible for the items, he did not engage in negligent or willful misconduct, and he was not the proximate cause of the incident. 8. On 14 August 2011, the Brigade Judge Advocate reviewed the FLIPL and stated: a. FLIPL WX6XAA-184-86 ($11,135.00) and FLIPL WX6XAA-184-11-85 ($47,922.68) flowed from an investigation that was a companion investigation to the one contemporaneously conducted by the 101st SBDE (Rear) (Provisional) into the loss of installation property, i.e., WAB8AA-11-HHC-0019 ($10,543.00). The IO was appointed on or about 16 April 2011 as a FLIPL IO to inquire into property that neither the Company E Commander (the applicant) nor the 101st SBDE HHC Commander could locate. b. Both investigations determined that liability should be assessed against CPT H_____ for failing to maintain proper accountability. Included with the 101st SBDE investigative report of findings was the approving authority's assessment of liability against Staff Sergeant (SSG) S____. SSG S____'s subsequent request for reconsideration was denied by the approving authority. CPT H____ was held liable in the amount of $3,324.38 based on her pro rata share of liability. Both the applicant and CPT H____ had submitted rebuttal matters and in both instances neither officer disputed the salient facts. Each of the company commanders took exception to an assessment of liability, but in no event argued that IO's factual findings were incomplete or inaccurate. According, the review would be limited to any legal error or recommendations that contravene Army Regulation 735-5 (Policies and Procedures for Property Accountability). c. He reviewed the IO's report of findings and the parties' respective rebuttal matters regarding the "lost" U.S. Government property. Upon that review, he found that the conduct of the investigation complied with legal requirements, but there was error such as to have a material adverse effect on an individual's substantial rights. d. The IO's recommendation as to liability was inconsistent with the requirements of Army Regulation 735-5. Notably, the IO recommended assessing liability on a percentage basis. Army Regulation 735-5 provides that if two or more individuals are assessed liability, it would be computed on a pro rata basis (paragraph 12-2a(1), Table 12-4). The IO recommended that the applicant and CPT H____ be held liable for 75 percent to 25 percent respectively. In finding the subjects collectively liable, the proper calculations would have been to add both individual's base pay and divide an individual's base pay by that sum. Then multiply that decimal figure (percentage) by the total loss to compute that individual's respective liability. e. The applicant raised the issue that the amended recommendation violated Army Regulation 735-5, paragraph 13-35b, although he does not articulate how his substantive rights would be materially affected. Army Regulation 735-5 provides that an individual would have "7 calendar days from the date of receipt to reply with a rebuttal statement or other additional evidence" (see paragraph 13-35b(1)). Taken in the favorable light, his argument appears to take the position that the amended IO report was the functional equivalent of a new basis for assessing liability. He received notice of the intent to hold him liable on 16 May 2011. The IO noted in the amended findings that there were no changes in terms of factual findings. However, there was one notable change in his analysis. f. The IO did prove by a "preponderance of the evidence" that both the applicant's and CPT H____'s collective actions/omissions proximately caused a failure to account for the subject items. Before assessing financial liability, the U.S. Government must establish an individual's negligence under Army Regulation 735-5. This required demonstrating responsibility (a duty), a culpable act or omission (breach of duty, proximate causation and loss (damages) (see Army Regulation 735-5, paragraph 13-29). The IO more than met that burden. Both parties submitted rebuttal matters challenging the IO and appointing authority's recommendations as erroneous because the IO failed to establish proximate causation. "Proximate causation" is defined as a continuous sequence of events that resulted in the U.S. Government's loss. g. Both the applicant and CPT H____ attempted to shift/reassign blame and/or shirk responsibility. Neither demonstrated an intervening cause that would cut off liability, but both mount technical arguments in support of their belief they should not be held liable for the missing property. To be sure, the applicant's conduct leading up to the deployment and subsequent conduct was cause for consternation. h. There are three FLILP packets, but the assessment of liability should be limited to no more than 1 month's base pay. Any property subsequently accounted for can be recouped at a future time. Nevertheless, each packet generated flowed from the same series of omissions and actions, but accounting processes necessitated individuating categories of losses. Accordingly, he would advise the approving authority to take into consideration the amount CPT H____ was already held liable for and restrict any assessment to the balance of her monthly base pay. Similarly, the applicant's liability should be limited to 1 month's base pay, rather than treating each packet as a separate instance of failing to account for missing U.S. Government property. Thus, the approving authority could properly limit the applicant's liability to 1 month's base pay. i. The recommendations of the IO were consistent with the findings, except with respect to a determination that any party engaged in willful misconduct. While both parties could be assessed liability, liability should be restricted to 1 month's base pay under these facts and circumstances. Therefore, he recommended that the approving authority mark an "x" in block 14a designated "approve" and write "to hold (the applicant) and CPT H____ liable in the amount of $4,951.80 and $2,570.32, respectively" in block 14b. 9. On 18 August 2011, the appointing authority concurred with the findings and recommendations. The approving authority approved the findings and recommendation and commented that both parties were assessed liability for the loss of U.S. property and liability should be restricted to one month's base pay for both individuals. 10. On 18 August 2011, the applicant's brigade commander notified the applicant of the approved charge of financial liability assessed against him by the U.S. Government in the amount of $4,951.80. The applicant was advised of his rights. 11. In a memorandum, dated 18 September 2011, the Commander, Task Force Lifeliner, stated the following after review of the request for reconsideration of the charge of financial liability stemming from the FLIPL: a. The applicant alleged the FLIPL was legally insufficient because the investigation failed to establish responsibility because he technically never signed for the missing property. Inherent with the command was ensuring that U.S. Government property was properly used and cared for, that proper custody, safekeeping, and disposition was proved. Army Regulation 735-5 states that command responsibility and supervisory responsibility depend on the location of the property within the chain of command. That responsibility was part of a job or position and was incurred by assuming that command or supervisory position. It could not be delegated. b. The applicant also alleged that the FLIPL was legally insufficient because the investigation failed to establish his negligence was the cause of the loss. The IO noted several instances where the applicant was needlessly dilatory and inefficient in the performance of his duties. There was no need to revisit the factual findings of the investigation as the report was both accurate and comprehensive. Further, the applicant had not introduced any additional factual evidence warranting a set aside. The standard of review was "preponderance of the evidence." In this case, the greater weight of the evidence demonstrated that the applicant's inaction and/or omission was part of a continuous sequence of events resulting in the loss of certain U.S. Government property which could not be located. 12. On 8 October 2011, the Deputy Staff Judge Advocate approved the 18 September 2011 memorandum and found the action legally sufficient to hold the applicant financially liable. 13. On an unspecified date, the convening authority denied the applicant's request for relief of financial liability. He was advised of his right to request remission or cancellation of indebtedness and to make an application to the Army Board for Correction of Military Records. 14. On 18 January 2012 in connection with the processing of this case, an advisory opinion was obtained from the Acting Director of Supply, Office of the Deputy Chief of Staff (DCS), G-4, Headquarters, Department of the Army. The advisory official recommended the financial liability assessed against the applicant be reversed with reimbursement of $4,951.80 or all monies deducted from his pay as a result of a FLIPL and correction to his records. The recommendation was based on the following: a. First, procedural flaw, the IO recommended liability by percentage which is inconsistent with Army Regulation 735-5. Army Regulation 735-5, chapter 12, gives instructions on how to compute collective and individual liability against two or more persons. b. Second, a 100-percent joint inventory was not conducted by the deploying commander (CPT H____) and the rear detachment commander (the applicant). In accordance with Army Regulation 710-2 (Supply Policy below the National Level), table 2-2, and appendix B, table B-1, and the brigade standing operating procedures, a 100-percent joint inventory would be conducted. That was a direct result of failed leadership from the battalion as stated by the Staff Judge Advocate. c. Third, the property book was not split and equipment was not designated as "left-behind" equipment, equipment not deploying and equipment going forward prior to that inventory. The applicant was tasked with splitting the property book, but the equipment belonged to CPT H____. 15. On 18 January 2012, the advisory opinion was forwarded to the applicant for information/comments, but he did not respond. 16. Army Regulation 710-2 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 non-financial liability, and ensuring supply discipline and management controls. 17. Army Regulation 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. It prescribes the accounting procedures to be used when Department of the Army 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. 18. Army Regulation 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 U.S. 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. Army Regulation 735-5, chapter 12, states a DD Form 22 will be prepared for a loss discovered during inventory on change of accountable officers, and individual does not make voluntary reimbursement to the Government. Table 12-4 cites methods of computing collective and individual financial liability when more than one person is charged. DISCUSSION AND CONCLUSIONS: 1. The applicant seeks relief and reimbursement from financial liability imposed against him by a FLIPL. 2. He contends that he had no responsibility for the property, he refused to sign for the property due to its absence and that it belonged to another company command, and some of the missing property was located within the other party's unit deployed to OEF. The evidence of record shows an IO recommended that the applicant be held 75-percent liable for property loss due to willful misconduct in his actions and held the other party 25-percent liable. 3. The DCS G-4 stated the FLIPL was flawed in the computation of financial liability against the applicant and the deploying commander. Also, the evidence of record showed a 100-percent joint inventory was not conducted by the deploying commander and the applicant. It stated the leadership failed to ensure that a 100-percent joint property inventory was conducted. Third, the property book was not split and equipment was not designated as "left-behind" equipment prior to the inventory. The applicant was tasked with splitting the property book for equipment that belonged to the deploying commander. It recommended that the assessed financial liability be reversed against the applicant based on the foregoing with reimbursement of all monies collected as a result. 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, the applicant 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 findings and conclusions, 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 to 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: 1. 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 not financially liable as indicated in FLIPL WX6XAA-184-11-85. 2. The Board further requests that the Defense Finance and Accounting Service (DFAS) reimburse the applicant any monies already collected from his pay as a result of this records correction. ____________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) AR20110021642 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021642 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1