IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150004698 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150004698 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 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. IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150004698 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, relief from financial liability for the loss of property. 2. The applicant states the California Army National Guard (ARNG) did not follow procedures outlined in Army Regulation (AR) 735-5 (Property Accountability Policies). a. He states the DD Form 200 (Financial Liability Investigation of Property Loss (FLIPL)) is invalid because it is incomplete. An investigating financial liability officer should have been appointed to complete the FLIPL. In addition, the FLIPL is missing appointment of an investigating officer (IO) and the required documentation, including notification of the applicant by the IO, a rebuttal, request for hearing, and an appeal. b. He states that he was never contacted to turn in his equipment and his clothing records are not valid because items appear on the FLIPL, but not on his clothing records. Also, a depreciation allowance was not applied to any of the property. In addition, the FLIPL was processed years after he was separated from the ARNG. Consequently, an unauthorized deduction from his Reserve pay was made in March 2014. He notes the Army Board for Correction of Military Records (ABCMR) has informed him that the documents pertaining to the FLIPL that he previously submitted in support of his application are "incomplete." 3. The applicant provided copies of the following documents: * Clothing Record, dated 10 November 2008 * California ARNG (CAARNG) Orders 131-1235, dated 11 May 2010 * DD Form 200 (FLIPL), dated 12 November 2010 * FLIPL Legal Review, dated 2 April 2011 * Leave and Earnings Statement, dated 5 March 2014 * Request for Reconsideration of Investigation of Property Loss, dated 2 May 2014 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a reserve commissioned officer in the rank of second lieutenant on 29 May 1988 in the Rhode Island ARNG. He entered the CAARNG on 23 March 1992. He was promoted to major/pay grade O-4 on 10 March 2004. 2. On 4 June 2008, the G-1, CAARNG, Sacramento, CA, notified the applicant that he had completed the required years of qualifying reserve service and he was eligible for retired pay upon application at age 60 (Twenty Year Letter). 3. On 8 December 2008, the applicant was ordered to active duty in support of Operation Enduring Freedom/Kosovo Force. He was honorably released from active duty on 18 January 2010 and transferred to Headquarters and Headquarters Company, 40th Infantry Division, Los Alamitos, CA. 4. Joint Forces Headquarters (JFHQ), CAARNG, Sacramento, CA, Orders 131-1235, dated 11 May 2010, honorably separated the applicant from the ARNG and transferred him to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) effective 15 July 2010. He had completed 22 years, 1 month, and 26 days of total service for pay. 5. Headquarters, U.S. Army Human Resources Command, Fort Knox, KY, Orders C-06-208447, dated 7 June 2012, released the applicant from the USAR Control Group (Retired Reserve) and assigned him to the USAR Control Group (Reinforcement) effective 7 June 2012. a. He was voluntarily assigned to the 606th Quartermaster Detachment, Riverside, CA, on 30 July 2012. b. He was promoted to lieutenant colonel/grade O-5 effective 26 June 2015. 6. A review of the applicant's military personnel records failed to reveal a copy of the FILPL. 7. The applicant submitted three (3) Applications for Correction of Military Record, dated 16 September 2014, 25 November 2014, and 12 March 2015. a. On 17 October 2014, in response to a request from the ABCMR for an advisory opinion pertaining to applicant's initial application, the Director of Supply, Office of the Deputy Chief of Staff (ODCS), G-4, Washington, DC, returned the request without action as the G-4 was unable to provide an official position without a complete copy of the FLIPL assessed against the applicant. b. On 21 October 2014, the Chief, Case Management Division (CMD), Army Review Boards Agency (ARBA), notified the applicant that a review of his application revealed it did not contain sufficient evidence to support his request. He was advised that since the Board is not an investigative body and since there is a rebuttable presumption that what the Army did in his case was correct, his application could not be processed without a complete copy of his FILIP. c. On 27 January 2015, in response to a another request from the ABCMR for an advisory opinion pertaining to applicant's second application, the Director of Supply, ODCS, G-4, Washington, DC, returned the request without action as the G-4 was unable to provide an official positon without a complete copy of the FLIPL assessed against the applicant. The copy provided was incomplete because it was missing the notification from the IO or approving authority, rebuttal, request for hearing, and appeal memorandum. d. On 2 February 2015, the Chief, CMD, ARBA, notified the applicant of the advisory official's comments and informed him that the ABCMR required the additional documents in order to proceed with his case. e. On 12 March 2015, the applicant provided copies of documents he had previously submitted related to the FILPL; he did not provide the requested documents. The following documents were submitted by the applicant. (1) DA Form 3645 (Central Issue Facility (CIF), National Guard California, Clothing Record – Automated), Document Number W91JG183158230V, dated 10 November 2008 (3 pages), that show a total of 39 line item entries with a total quantity of 43 items. It also shows the applicant acknowledged receipt of the items listed, that he was aware of his responsibility to maintain the items in serviceable condition, and that he may be held pecuniarily liable for any items which are lost or damaged due to his negligence or misconduct. It further shows that the applicant digitally signed the document on 11 November 2008. (2) DD Form 200, Inquiry/Investigation Number 11146X, initiated by an official of the U.S. Property and Fiscal Office (USPFO), Camp Roberts, San Miguel, CA, on 12 November 2010 (8 pages), that, in pertinent part, shows: * a total of 84 line item entries with a total quantity of 98 items and a grand total cost of $4,856.66 * the applicant was discharged on 15 July 2010 and failed to turn-in his Organizational Clothing and Individual Equipment (OCIE) to the CIF, USPFO, CA * on 20 March 2011, the responsible property record officer (CIF, USPFO, Camp Roberts, San Miguel, CA) indicated the applicant had personal responsibility for the missing property based on the hand receipt and that negligence or abuse was evident or suspected * on 2 April 2011, the appointing authority (Deputy, USPFO, Camp San Lois Obispo, CA) approved the FLIPL and indicated a financial liability officer was not appointed * on 12 August 2011, the approving authority (Colonel Saul R____, G-4, Director of Logistics, JFHQ, CAARNG, Sacramento, CA) approved the FILPL * the financial liability officer indicated a dollar amount of loss of $4,856.66 * on 20 October 2011, the accountable officer (CIF, USPFO, Camp Roberts, CA) indicated document number W91JG1031611021V was used to adjust the property record (3) A memorandum prepared on 2 April 2011 by the attorney-advisor for the G-4, Director of Logistics, CAARNG, Sacramento, CA, subject: FLIPL Legal Review (pertaining to the applicant), in pertinent part, shows: * the attorney advisor found the FLIPL to be legally sufficient provided the – * military issued equipment was depreciated in accordance with AR 735-5, Appendix B, B-2 * the applicant is held financially liable only for signed equipment * the approving authority was free to impose liability if he found the applicant was negligent and the negligence was the proximate cause of the loss * he referred to AR 735-5, paragraph 13-29, pertaining to personal responsibility and negligence * he stated the applicant's negligence was the direct cause for the loss and he cited the DA Form 3645 that the applicant signed acknowledging his responsibilities * he noted the applicant – * was provided notice and an opportunity to respond to the FLIPL in accordance with AR 735-5 * did not respond and was afforded the required time to submit a rebuttal * he concluded that the applicant's failure to return military issued equipment was the proximate cause of the loss (4) A Leave and Earnings Statement, dated 5 March 2014, pertaining to the applicant that shows: * Government Property Lost/Damaged Debt Balance: $4,856.66 * Original Debt: $4,856.66; 12 November 2010 * Unpaid Debt Balance "Total": $4,856.66 * Loss of Government Property: FLIPL 11146X November 2010 BG (5) A memorandum prepared on 2 May 2014 by an attorney-advisor on behalf of the applicant and addressed to the Commander, 40th Infantry Division (Mechanized), subject: Request for Reconsideration, Investigation of Property Loss W91JG103161021V ($4,845.66) that, in pertinent part, shows he: * requested the commander stop any and all collection actions * noted a short FLIPL was conducted and completed (signed by officials), the applicant was not given the opportunity to provide a rebuttal statement nor a request for reconsideration * referred to AR 735-5, paragraph 13-51, pertaining to requests for reconsideration that normally must be received 20 days from liability notification unless good cause can be shown for failing to take action within the time prescribed * maintains the applicant was never notified that he was being recommended for financial liability nor was he notified that financial liability was being assessed despite maintaining the same mailing address after he retired * referred to AR 735-5, paragraph 13-22, that allows an approving authority to make a decision without appointing an IO when the facts and circumstances permit (i.e., a short FILIP) * opines that an IO should have been appointed in the applicant's case because there are items on the DD Form 200 which – * are expendable items (he should not have been charged for) * do not show up on the applicant's last clothing record [referred to as Enclosure 4, but not provided] * referred to AR 735-5, paragraph 13-29, pertaining to negligence and willful misconduct and – * asserted there is no indication on the DD Form 200 that the applicant was negligent * argues a greater responsibility falls on the unit in this case for allowing the applicant to depart without clearing CIF * reemphasized the applicant was not notified as required * concludes that based on the amount of time that has passed and the numerous legal errors on the short FLIPL, assessment of financial liability should be overturned in its entirety REFERENCES: 1. AR 735-5, chapter 13 (FLIPL), shows the Government may impose a finding of pecuniary liability whenever negligence or willful misconduct is found to be the proximate cause of any loss, damage, or destruction of Government property. a. The Glossary, section II (Terms), shows: * Negligence is defined as simple or gross, with simple negligence being the failure to act as a reasonably prudent person would have acted under similar circumstances * Willful misconduct is defined as any intentionally wrongful or unlawful act dealing with the property concerned, to include misappropriation of Government property * Direct responsibility is defined as the obligation of a person to ensure that all Government property for which he has receipted for is properly used and cared for and that proper custody and safekeeping is provided * Command responsibility is the obligation of a commander to ensure that all Government property within his command is properly used and cared for, and that proper custody and safekeeping is provided * Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss or damage would not have occurred b. Paragraph 13-22 (Decision by the approving authority without further investigation) shows a "short financial liability investigation of property loss," provides the approving authority the option of shortening the financial liability investigation of property loss process when the facts and circumstances permit. When the approving authority can establish from the information contained on DD Form 200, blocks 9, 10, and 12 and attached exhibits that negligence or willful misconduct was the proximate cause of the loss or damage, financial liability may be assessed by: (1) Ensuring that all actions normally performed by the financial liability investigation officer are performed, such as determination of fair market value or depreciation. (2) Preparing a memorandum to the respondent stating intent to assess financial liability without further investigation. c. Paragraph 13-29 (Financial liability officer's responsibilities) shows 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. Subparagraph a(6) (Personal responsibility) sets forth the obligation of a person to exercise reasonable and prudent actions to properly use, care for, safeguard and dispose of all Government property in their physical possession. It applies to all Government property issued for, acquired for, or converted to a person's exclusive use, with or without receipt. d. Paragraph 13-32 (Financial liability officer's findings and recommendations) provides that the financial liability officer will give any individual, against whom he or she makes a recommendation to assess financial liability, a chance to examine the FLIPL after the findings and recommendations have been recorded on the DD Form 200 and the opportunity to make a rebuttal statement in his or her own behalf. A copy of the memorandum explaining the individual's rights will be attached to the FLIPL as an exhibit. e. Paragraph 13-51 (Information regarding requests for reconsideration) provides that the term "request for reconsideration" refers to an application to the appeal authority challenging the decision of the approving authority in assessing financial liability. Requests for reconsideration will be submitted to the approving authority that acted on the financial liability investigation. The approving authority will, after review and determination that liability will continue, forward requests for reconsideration to the next commander in the chain of command. This will be accomplished within 15 calendar days of receipt by the approving authority. An individual may request reconsideration only one time. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record; the ABCMR is not an investigative body. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends that he should be relieved from financial liability for the loss of clothing and equipment because he was never contacted to turn in the items; the resulting FLIPL is invalid because an IO was not appointed; it contains administrative errors, is incomplete, and improper; and he was not notified of the initiation or results, or of his right to a hearing, rebuttal, appeal, and reconsideration of the FLIPL. 2. The evidence of record shows the applicant signed for the Government property identified on the DA Form 3645, dated 10 November 2008. a. He was separated from the ARNG on 15 July 2010. At the time he had completed more than 22 years of military service and he was serving as a commissioned officer in the rank of major (O-4). b. It is not clear why the applicant believes he should have been contacted to turn in his military issued equipment. Nonetheless, the evidence of record shows he acknowledged with his signature that he was aware of his responsibility to maintain the items in serviceable condition and that he could be held pecuniarily liable for any items which are lost or damaged due to his negligence or misconduct. As such, it may be concluded he understood that he had to return the military issued items to the Government when he was separated from military service. c. There is no evidence of record and the applicant provides no evidence that shows he returned the military issued items to the Government. Moreover, he does not contend that he returned the military issued items. Once again, it is not clear from the available evidence of record why he did not do so. d. It is noted the DA Form 3645 (Clothing Record), dated 10 November 2008, shows Document Number W91JG183158230V and the DD Form 200 (FLIPL) shows Document Number W91JG1031611021V, and that the DD Form 200 contains items that are not shown on the DA Form 3645. Thus, it is reasonable to conclude that the DA Form 3645 is not the sole clothing and equipment record upon which the FLIPL is based. e. The attorney-advisor to the G-4, Director of Logistics, JFHQ, CAARNG, found the FLIPL to be legally sufficient and that the applicant's negligence was the direct cause for the loss. In addition, he affirmed that the applicant had been provided notice of the FLIPL and the opportunity to respond or submit a rebuttal within the prescribed time (i.e., due process); however, he did not respond. f. The approving authority approved the FILPL, on 12 August 2011, with a dollar amount of loss of $4,856.66. g. The evidence of record shows the applicant submitted a request for reconsideration of the FLIPL in the May 2014 timeframe. However, he did not provide a copy of the results of that request. 3. The applicant was offered several opportunities to provide a complete copy of the FLIPL to the Board; however, he failed to do so. 4. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption. The applicant fails to provide such evidence. As such, it is concluded that the applicant's financial liability for failing to return military issued items to the Government was due to his own negligence and his negligence was the proximate casus of the loss. Based on all of the foregoing, the FLIPL is presumed proper and valid. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004698 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004698 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2