IN THE CASE OF: BOARD DATE: 16 February 2016 DOCKET NUMBER: AR20150006893 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: The applicant defers his requests, statement, and evidence to his counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the correction of the applicant’s records by reversing the finding of financial liability made against him in the Financial Liability Investigation of Property Loss (FLIPL) Number WCXXXA-13-178 with reimbursement of the $1,250.35 he already paid. 2. Counsel states the approving authority reversed the initial determination of financial liability against the applicant for the alleged loss, damage, or destruction of government property. In a memorandum, dated 4 March 2015, the approving authority, Colonel (COL) MJM, stated, "Based on the new information, I determine [The Applicant] not liable and direct repayment in the amount of $1,250.35. Money taken from [The Applicant’s] pay pursuant to FLIPL WCXXXA-13-178 was erroneously received and shall be restored." 3. Counsel provides a/an: * four memoranda for record (MFR), dated between 12 March 2013 and 4 March 2015 * eight memoranda, dated between 9 August 2012 and 8 January 2015 * DD Form 200 (FLIPL), dated 29 April 2013 * U.S. Postal Service (PS) Form 3800 (Certified Mail Receipt), postmarked 10 April 2013 * DA Form 7531 (Checklist and Tracking Document for FLIPL), dated 26 February 2013 * seven DA Forms 2823 (Sworn Statement), dated between 28 March 2012 and 18 March 2013 * hand receipt, dated 12 January 2012 * 82nd Combat Aviation Brigade (CAB) Combat Service Support Automation Management Office (CSSAMO) Work Order, dated 11 March 2011 CONSIDERATION OF EVIDENCE: 1. The applicant was serving on active duty in the Regular Army in the rank/grade of staff sergeant (SSG)/E-6 and was assigned to the CSSAMO, 122nd Aviation Support Battalion (ASB), 82nd CAB, Fort Bragg, NC. He deployed to Afghanistan with his assigned unit from 21 September to 20 December 2011. 2. On 9 August 2012, Chief Warrant Officer Two (CW2) PT was appointed the Investigating Officer (IO) for FLIPL WAXXXA-12-HQ-XXD-27 by Lieutenant Colonel (LTC) AA, Commander (CDR), 2nd Battalion (BN), 82nd CAB, pursuant to Army Regulation (AR) 735-5 (Policies and Procedures for Property Accountability), chapter 13, to investigate discrepancies in a Property Book Unit Supply Enhance (PBUSE) computer belonging to F Company (CO), 2nd BN, 82nd CAB. 3. By memoranda, dated 27 August 2012 and 11 September 2012, subject: FLIPL WAXXXA-12-HQ-XXD-27 CW2 PT notified the applicant that financial liability had been assessed against him in the amount of $1,600 for the loss of government property through simple negligence and violation of his command and direct responsibility to maintain accountability of equipment through his command. He was informed, in part, that he had the right to request reconsideration within 14 days from the date of the memorandum. 4. Neither memoranda were signed by the applicant to show he acknowledged receipt of the memoranda. In or around February 2013, the applicant was assigned to the 202nd Military Intelligence (MI) BN, 513th MI Brigade, Fort Gordon, GA. 5. On 12 March 2013, Captain (CPT) JS was appointed the IO for FLIPL WCXXXA-13-178 by LTC BC, CDR, 2nd BN, 82nd CAB, pursuant to AR 735-5, chapter 13, to investigate discrepancies reference the missing computer belonging to F CO. 6. In a sworn statement, dated 13 March 2013, Sergeant (SGT) SC stated, before the unit deployed, she and the applicant were left with the task to find the unit that a PBUSE laptop computer belonged to. Specialist (SPC) GG, the point of contact on the work order, had left the Army and was uncooperative. The applicant instructed her to lock the computer in the pick-up locker as they were scheduled to ship the next day and said he would brief the Rear Detachment on what to do if anyone came to claim the computer. The applicant was going to leave a set of keys with the S-2. When they returned from deployment, they found all the locks were removed from the lockers and the computer was missing. The Rear Detachment had changed all the locks on the building while they were down range. 7. In a sworn statement, dated 14 March 2013, CPT CD, stated he was the Rear Detachment CDR for the 122nd ASB from 1 May 2011 to 22 March 2012. During his change of command, he was contacted by CPT RM, the 2nd BN, 82nd CAB, Rear Detachment CDR reference an F CO laptop computer that was left in the CSSAMO. He went to the CSSAMO and located one computer in the locker used to store computers. However, it was not the computer in question; it belonged to F CO, 3rd BN, 82nd CAB and was returned to the 3rd BN Rear Detachment CDR. When the 122nd ASB deployed, he had not been left with any keys and had the building rekeyed. All equipment was accounted for as 122nd ASB equipment except the laptop that belonged to F CO, 3rd BN, 82nd CAB. 8. In a sworn statement, dated 18 March 2013, the applicant stated, before deploying in 2011, the CSSAMO was focused on returning all equipment to its owner. After many attempts, there was one computer he and SGT SC could not return. He and SGT SC were the last from the CSSAMO to deploy. He decided the best course of action was to leave the computer in the shop. They secured the computer in a locked wall locker and secured the building. When they redeployed in December 2011, all the locks had been changed. He did not have access to the CSSAMO until December 2012 when he returned from temporary duty (TDY). Due to the length of time since the incident, he could not recall the exact details of the timeline. 9. A DD Form 200 (FLIPL), dated 29 April 2013, shows, in part: a. In item 9 (Circumstances Under Which Property Was Lost) that on 17 September 2010, SPC GG, F CO, 2nd BN, 82nd CAB, supply sergeant, turned in a PBUSE computer to the 82nd CAB CSSAMO. The computer was signed for by Sergeant First Class (SFC) SH, stayed with CSSAMO for a period of time, and then was turned in to Tobyhanna [Army Depot, PA] for repair. On 20 March 2011, Tobyhanna returned the computer to CSSAMO; it was unclear who signed for the computer at CSSAMO. An attempt was made to notify SPC GG the computer was ready for pickup; however, he had already been separated from the Army and was uncooperative in assisting with locating the proper personnel to return the computer to. b. F CO and CSSAMO personnel deployed to Afghanistan in September 2011 and the computer remained at Fort Bragg. An attempt was made to laterally transfer the computer to the Rear Detachment while F CO was down range but the computer could not be located. Upon redeployment to Fort Bragg, another attempt was made to locate the computer by CSSAMO but it could not be found. c. In item 13a (Recommendation) the appointing authority, LTC BC, checked the "APPROVE" block and in item 13b (Comments/Rationale) stated, there is proof that F CO turned in the computer to CSSAMO but no proof that CSSAMO did not reissue the computer back to either F CO or 82nd CAB Rear Detachment. Check CSSAMO and confirm what they did with the computer. He signed the DD Form 200 on 5 April 2013. d. In item 14a (Recommendation) the approving authority, COL MM, checked the "APPROVE" block and in item 14b (Comments/Rationale) stated, approved to hold [The Applicant] financially liable in the amount of $1,250.35; his base pay at the time of the loss was $3,197. He signed the DD Form 200 on 29 April 2013. 10. In an MFR, dated 9 April 2013, subject: FLIPL WCXXXA-13-178, CPT JS notified the applicant that he was being recommended for charges of financial liability in the amount of $1,250.35 for the loss of government property under the subject investigation of property loss. He was informed he had the right to: * inspect and copy records relating to the debt * legal advice * submit a statement and other evidence to the approving authority in rebuttal of the recommendation * the approving authority must consider any rebuttal statement in making his determination of financial liability 11. The MFR does not contain an address line for the applicant and was not signed by the applicant to show he acknowledged receipt of the MOR. 12. By memorandum, dated 29 April 2013, subject: FLIPL WCXXXA-13-178, through LTC BC, CDR, 2nd BN, 82nd CAB, the applicant was notified by COL MM, that the financial liability of $1,250.35 had been assessed against him under the subject investigation of property loss. He was notified, in part, that he had 30 days from the date of the memorandum to submit a request for reconsideration. 13. This memorandum was not signed by the applicant to show he acknowledged receipt of the assessment. 14. On 8 January 2015, the applicant's counsel submitted a request to COL MM requesting reconsideration of his decision to impose liability against the applicant in FLIPL WCXXXA-13-178 with reimbursement of the $1,250.35 that had already been withheld from is pay. Counsel stated, in part: a. The applicant's unit failed to serve him with proper notification of the assessment. Although the FLIPL included mailing documentation that showed something was mailed to him, there was no return receipt indicating it was delivered and no proof it had been. The lack of his signature on the acknowledgment portion of the memorandum indicated he was not provided the proper notification. b. Two FLIPLs were conducted on the missing equipment; the second one was conducted after the applicant's legal assistance attorney at Fort Huachuca, AZ, identified glaring injustices and inaccuracies with the first FLIPL. c. The alleged missing equipment was found by CPT CD while conducting sweeps of the BN areas after the applicant deployed. In a sworn statement, CPT CD stated inside the wall locker they found one laptop computer labeled "F/2-82 Pathfinders." Thus, after the applicant deployed the computer was found. 15. The applicant was honorably retired on 31 January 2015 in the rank of SSG by reason of permanent disability and he was placed on the Permanent Disability Retirement List on 1 February 2015. 16. In an MFR, dated 4 March 2015, subject: Correction in FLIPL WCXXXA-13-178 and Repayment of Assessment Against [The Applicant], COL MM stated, on 29 April 2013, he approved assessing financial liability against the applicant in the amount $1,250.35. He reviewed the reconsideration memorandum and all its enclosures and, based on new information, he determined the applicant was not liable and directed repayment of $1,250.35. Money taken from the applicant's pay pursuant to FLIPL WCXXXA-13-178 was erroneously received and shall be restored. 17. In the processing of this case, an advisory opinion, dated 8 September 2015, was received from the Office of the Deputy Chief of Staff, G-4. The advisory official recommended approval of the applicant's request for relief and stated, the recommendation was based on the 2 March 2015 MOR from the approving authority finding the applicant not liable for property loss due to error. The approving authority also directed repayment of the amount assessed against the applicant in accordance with AR 735-5, paragraph 13-50d. 18. On 9 October 2015, the applicant and his counsel were provided the advisory opinion for information and/or comment; however, no response was received. 19. AR 735-5, chapter 13, 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. 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. 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. b. Paragraph 13-50(fd), states property listed on a DD Form 200 may be recovered after assessment of financial liability is approved, or the assessment may have been reversed by the approving or appeal authority. If so, an amendment will be prepared, citing the specific alterations, and attached to the DD Form 200 as an exhibit. A copy of the amendment will be attached to a memorandum directing repayment of the value of the recovered property to the individual, as a "collection erroneously received." DISCUSSION AND CONCLUSIONS: The evidence of record confirms the applicant was assessed the financial liability of $1250.35 by the approving authority in FLIPL WCXXXA-13-178, dated 29 April 2013. However, on 4 March 2015 the approving authority reversed the determination of financial liability in FLIPL WCXXXA-13-178 and determined the applicant was not liable. As stated in governing regulations the collection of $1,250.35 was erroneously received from the applicant and he is entitled to reimbursement of the amount he paid. BOARD VOTE: ____X____ ___X_____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 WCXXXA-13-178, dated 29 April 2013 * as a result of this correction, the Defense Finance and Accounting Service reimbursing him the $1,250.35 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) AR20150006893 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006893 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1