BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150009944 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 BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150009944 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. BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150009944 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, overturn of her DD Form 200 (Financial Liability Investigation of Property Loss), Number WAQPFF-15-3-7CAV-XXX, dated 3 November 2014. 2. The applicant states: a.  The FLIPL Number WAQPFF-15-3-7CAV-XXX is holding her financially liable for some alleged lost/disposed of records that resulted in lost property. The charge in the FLIPL is unjust as it is a duplicate from a court-martial hearing in which she was found not guilty. b.  Specialist (SPC) H____, who made the original allegation that she allegedly disposed of some paperwork that caused the physical loss of property, later testified in her trial that he did not see her removing documents from any office or have possession of them in order to dispose of them. c.  She was found not guilty of the court-martial charges related to these records; however, she is still being held financially liable for some alleged missing documents. 3. The applicant provides: * FLIPL Number WAQJAA-14-2ABCT-XXXX, dated 12 September 2014 * Headquarters, 2d Armored Brigade Combat Team, 3d Infantry Division, memorandum, dated 24 June 2014 * Headquarters, 3d Squadron, 7th Cavalry Regiment, 2d Armored Brigade Combat Team, 3d Infantry Division, dated 17 July 2014 * Headquarters, 3d Infantry Division and Fort Stewart, Assistant Chief of Staff, G-4, memorandum, undated * Headquarters, 2d Armored Brigade Combat Team, 3d Infantry Division, memorandum, undated * FLIPL WAQPFF-15-3-7 CAV-XXX, dated 7 November 2014 * Headquarters, 2d Armored Brigade Combat Team, 3d Infantry Division, memorandum, dated 11 December 2014 * Headquarters, 1st Battalion, 9th Field Artillery Regiment, 2d Armored Brigade Combat Team, 3d Infantry Division, memorandum, dated 12 December 2014 * Headquarters, 2d Brigade Combat Team, 3d Infantry Division, memorandum, dated 12 December 2014 * self-authored memorandum, dated 7 January 2015 * Headquarters, 2d Armored Brigade Combat Team, 3d Infantry Division, memorandum, dated 13 January 2015 * Headquarters, Fort Stewart, Office of the Staff Judge Advocate, memorandum, dated 4 February 2015 * Headquarters, 3d Infantry Division and Fort Stewart, memorandum, undated * DD 2707-1 (Department of Defense Report of Result of Trial) * Summarized Record of Trial * Table of Contents with exhibits A through Z CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 9 January 2007. She completed training and was awarded military occupational specialty 92Y (Unit Supply Specialist). 2. Her DA Form 1059 (Service School Academic Evaluation Report), dated 14 December 2012, shows she completed the Unit Supply Specialist Couse during the period 6 November 2012 through 14 December 2012. 3. Her Enlisted Record Brief shows she completed the Supply Manager Course and Property Book Unit Supply Enhanced Course in 2013. 4. She provided a copy of FLIPL Number WAQJAA-13-2ABCT-XXXX, initiated on 25 October 2013, with exhibits A through D. FLIPL Number  WAQJAA-13-2ABCT-0000 shows the circumstances under which property was lost as follows: During the period 20110801 to 20130930 [1 August 2011 to 30 September 2013], due to budget constraints, shortages of Components of End Items (COEI), Basic Issue Items (BII), and Durables were unable to be fulfilled throughout previous Change of Commands. The lack of limited funds prevented PBUSE [Property Book Unit Supply Enhanced] orders from being processed through SARRS [Standard Army Retail Supply System] to receive document numbers for those equipment shortages. 5. FLIPL Number WAQJAA-13-2ABCT-0000 shows the amount of loss as $283,633.98 and indicates there was no negligence or abuse evident/suspected. 6. She provided a copy of FLIPL Number WAQJAA-14-2ABCT-XXXX, initiated on 28 May 2014 for a missing .50 caliber barrel belonging to D Troop, 3d Battalion, 7th Cavalry Regiment. 7. On 17 July 2014, the Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigating officer issued a memorandum to the appointing authority, subject: Report of Findings by Army Regulation 15-6 Investigating Officer. He recommended holding CPT T____, Troop Commander, 3d Battalion, 7th Cavalry Regiment, financially liable for the loss of the government property valued at $1,093.00. He stated the following, in part: a.  Responsibility was assumed without a proper sub-hand receipt from CPT M____. b.  The equipment was accounted for during the change of command inventory and was the last known time the barrel was accounted for. CPT T____ did not provide for the proper safeguarding of government property and the barrel was not located during a full inventory conducted on 28 May 2014. This inventory was conducted because SPC R____ S____ assumed the armorer duties of Troop D, 3d Battalion, 7th Cavalry Regiment. c.  The proximate cause of the loss of government property was negligence. Adequate supervision was not maintained over the equipment in the arms room and there were no steps taken during the first 8 months of CPT T____'s command to correct the situation. 8. On 18 July 2014, Second Lieutenant (2LT) C____ A. C____, the investigating officer for a commander's inquiry into missing documents from the supply room, issued a memorandum to the troop commander in which he stated the facts and circumstances surrounding the events that occurred on 24 June 2014 show negligence on the applicant's part. He further stated: a.  It was his belief she behaved in a manner that was unprofessional and unbecoming of a noncommissioned officer (NCO). b.  According to SPC H____, she emptied some of the change-of-command inventory shortage annexes and hand receipts into a brown trash bag on 24 June 2014. When questioned about the paperwork, she stated, "These TMs [technical manuals] and hand receipts are old and I am throwing them away." c.  After reviewing the contents of the trash bag on the floor, some of the change-of-command shortage annexes and hand receipts that were performed by Sergeant First Class (SFC) P____ that were not yet a year old were identified as present. d.  Although nobody saw her throwing any of the hand receipts into the dumpster, as the supply sergeant she was responsible for maintaining all of the commander's property in accordance with Army regulations, to include hand receipts. e.  Her behavior and actions were that of an incompetent and immature NCO. Her willful misconduct was intentionally aimed at the chain of command of "Desperado Troop." f.  He recommended, in part, charging her for dereliction of duty under the Uniform Code of Military Justice. 9. Upon receipt of legal sufficiency in FLIPL Number WAJAA-14-2ABCT-XXXX, the approval authority concurred with the findings and recommendations of the financial liability investigating officer. CPT T____ was found financially liable for the amount of $1,093.00. 10. On 3 November 2014, FLIPL Number WAQPFF-15-3-7 CAV-XXX was initiated. The circumstances under which the organization lost the property were listed as follows: During the period of 20131001-20141020 [1 October 2013 to 20 October 2014], due to budget contraints [sic], shortages of Components of End Items and Basic Issue Item[s] were unable to be fullfilled [sic] throughout previous Change of Commands. The lack of funds prevented PBUSE orders from being processed through SARRS to receive document numbers for these equipment shortages. On 20142406 [24 June 2014], the then supply sergeant lost documentation going back six years including historical shortage annexes and relief documents. The loss of these shortages cannot be isolated to a single Chain of Command due to these circumstances. 11. The financial liability investigating officer for FLIPL WAQPFF-15-3-7 CAV-XXX issued a memorandum for the brigade commander, dated 12 December 2014, in which he stated he determined there were several significant issues in the unit's Command Supply Discipline Program. He stated the following, in part: a.  The circumstances involving the lost property documents on or about 24 June 2014 were directly the result of the applicant's actions. She took over as the unit's supply sergeant in March 2013 and remained the supply sergeant until June 2014. During that time, she had custodial responsibility for the property awaiting issue and responsibility for creating and maintaining records of property issuance, turn-in, and inventories. b.  On 24 June 2014, the applicant willingly removed the contents from a large number of binders from the supply room and disposed of them in an unknown location. The binders held shortage annexes and sub-hand receipts, as well as records from previous change-of-command inventories. The documents would be invaluable in determining the historical loss of a large number of items contained in both this FLIPL and a previous unit FLIPL Number WAQJAA-13-ABCT-XXXX. c.  The applicant indicated she did not know what happened to the documents in question and attested that the documents she removed that day were old records not pertinent to anything. d.  The nature, extent, and circumstances of the unit's property losses could not be further determined due to the applicant's actions. Her willful loss/ destruction of the records made it impossible to determine if the items in FLIPL Number WAQPFF-15-3-7 CAV-XXX were lost during CPT T____'s command or were lost previously and were not on the initial FLIPL because of poor recordkeeping and an inaccurate product. The exact amount of the loss that can be attributed to her actions could not be determined since those records no longer existed and it was impossible to track individual items further than those records. e.  CPT T____'s negligence was a proximate cause of the loss of government property. f.  The applicant engaged in willful misconduct related to her custodial responsibility and she was negligent in her responsibilities as the supply sergeant. Her negligence and willful misconduct were the proximate cause of the loss of the government property in FLIPL Number WAQPFF-15-3-7 CAV-XXX. g.  He recommended, in part, holding CPT T____ financially liable in the amount of $5,415.30 and holding the applicant financially liable in the amount of for $2,555.10. 12. She provided a DA Form 4856 (Developmental Counseling Form), dated 26 June 2014, showing she was counseled by CPT T____ as follows: a.  On 30 October 2013, she was counseled by the first sergeant (1SG) for failing to complete a study hall and hold a mock board for a promotion board in accordance with an agreement between her and the former brigade command sergeant major. She was also counseled by her commander for disrespecting two commissioned officers and 1SG P____ by demanding results with a tactless approach. At the time, she refused to sign both counseling statements; however, she completed the corrective training from the counseling statement for disrespect. b.  On 25 June 2014, SPC H____ noticed a significant amount of key documentation, to include shortage annexes, historical signed sub-hand receipts, and records of cyclic and sensitive item inventories, were missing from the supply room. c.  On 25 June 2014, it was brought to her commander's attention that she was removing key documentation from the supply room with the intent of disposing of it. SPC H____ saw her removing copies of a change-of-command level inventory conducted by SFC P____ from 2013. When SPC H____ asked her why was she removing the documents, she indicated they were outdated TMs that needed to be thrown away. SPC H____ knew her reply was invalid so he informed the unit executive officer who in turn informed the company commander. d.  When her commander personally asked her why was she disposing of the documents, she stated they were old TMs. Upon closer inspection, he verified they were records of a troop-level inventory conducted by SFC P____ from 2013. When the applicant was asked the whereabouts of the missing documents, she told her commander she had no idea where they were. Her response constituted lying to a commissioned officer and violating the Army value of integrity. e.  Since SPC H____ saw her removing key documents from the supply room, probable cause was established and permission was obtained from the staff judge advocate and military police to search her privately owned vehicle (POV). f.  First Lieutenant (1LT) H____, her first line supervisor and the troop executive officer, and CPT T____ searched her POV under the supervision of Officer E. J____, Fort Stewart Military Police. g.  A signed hand receipt for SFC T____'s equipment, dated May 2014, and a signed hand receipt for 2LT C____'s equipment, dated May 2014, were found among other documents in her POV. h.  After the documents were recovered around 1745, she was ordered to report immediately to the unit troop area which was a 10-minute or less drive from the search location. She arrived at the troop area at 1840. She disobeyed the intent of the commissioned officer's verbal orders and displayed contempt toward her chain of command. i.  Later that evening, 1SG P____ received a telephone call informing him that she was aggressively knocking on SPC H____'s door, demanding to see him, needing a key. When he would not answer the door for her, other Soldiers were ordered to get him for her. j.  After SPC H____ informed the chain of command of her removal of documentation from the supply room, a hostile work environment was created. Her commander issued military protection orders to both the applicant and SPC H____ to protect him from retaliation and a hostile work environment. k.  She was advised that a commander's inquiry would be conducted into the missing documentation and the outcome would determine further courses of action. She was also advised of her possible separation under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations). l.  She acknowledged receipt of the counseling on 26 June 2014 and indicated she disagreed with the aforementioned information. She stated in writing: "This is a counseling for retaliation. (I have all the documentation [and] information.)" 13. She provided a DA Form 2823 (Sworn Statement), dated 5 December 2014, from SPC H____, which shows he stated, in part: a.  In response to the statement, "Please explain what happened the day records went missing on 24JUNE14 [24 June 2014]": I saw her throwing away documents from SFC P____'s pre-change of command inventory. There were four binders from that inventory covering each sub-hand receipt and other references. All of those binders were gone when I came into the office that day, at about 1030-1100. There is a wall locker with about five shelves of binders, and all of the binders except about six were gone. Those binders contained every current hand-receipt holders [sic] binder at the time, change of command documents from SFC P____, potentially CPT T____, as well as TMs and other references. While I was in the office, [Applicant] returned with empty trash bags and took the last six binders in the wall locker, and emptied them into the trash bags. Those binders contained the last of SFC P____'s change of command property documents. I had already told 1LT H____ about the missing binders so he told CPT T____ and came to the supply room. At that time I went to look for the missing binders in various dumpsters around post. I didn't find anything. b.  In response to the question, "What happened later that night?": I was in my barracks about 1930 playing FIFA (video game). She had called over 30 times in about three or four hours, I had been ordered not to [sic] then I saw her come from behind the corner and slam on my door again, and return to hiding behind the corner. She then jumped on my door handle to try to force it open. So I then called 1LT H____ to tell him, and then 1SG P____ and a few other NCOs came to the door. [Applicant] told 1SG I had a key to a toughbox, so 1SG asked me and looked around and didn't find a key. I didn't have a key to any toughbox. After they left I'm not really sure what happened. c.  In response to the statement, "Additional comments": I will say that as much as [Applicant] tried to sabotage CPT T____, I would blame this FLIPL on [Applicant]. I think she was trying to do her best to make it difficult for CPT T____ in retaliation for her not getting her way in various complaints to EO [equal opportunity], IG [inspector general], and SHARP [Sexual Harassment/Assault Response and Prevention]. 14. On 11 December 2014, FLIPL Number WAQPFF-15-3-7 CAV-XXX was found administratively complete and legally sufficient. 15. On 12 December 2014, she was notified she was being recommended for charges of financial liability to the U.S. Government in the amount of $2,555.10 for the loss of government property. Further, she was advised of her rights relative to the matter. 16. On 7 January 2015, she submitted a rebuttal statement in which she requested relief from all financial liability. She stated, in part: * the assessment of liability was based on insufficient evidence * the investigation conflated shortages with loss and failed to establish proximate cause * there was an improper valuation of loss 17. On 13 January 2015 after considering her rebuttal statement, her commanding officer notified her an approved charge of financial liability had been assessed against her by the U.S. Government in the amount of $2,555.10 for the loss of government property. She was further advised of her rights. 18. On 4 February 2015, counsel for the applicant submitted a reconsideration request in which he stated, in part: * the recommendation of liability was based on legal error * the assessment of liability was based on insufficient evidence * the investigation conflates shortages with loss and failed to establish proximate cause * there was an improper valuation of loss 19. On an unknown date, the request for reconsideration of FLIPL Number  WAQPFF-15-3-7 CAV-XXX was denied by the commanding general. 20. Headquarters, Fort Stewart, Special Court-Martial Order Number 5, dated 24 March 2015, shows: a.  she pled not guilty and she was found guilty of willfully disobeying orders from CPT T____ to "stay in the supply room," or words to that effect, and "report immediately to the Troop area," or words to that effect, on or about 24 June 2014; b.  she pled not guilty and she was found guilty of treating SFC R____ W____ with contempt on or about 24 June 2014; c.  she pled not guilty and she was found not guilty of making an official statement with intent to deceive on or about 24 June 2014; and d.  she pled not guilty and she was found guilty of wrongfully advising SPC H____ to disobey an order on or about 23 April 2014. 21. Her punishment consisted of a reprimand and grade reduction from E-5 to E-4. 22. On 14 April 2015, she enlisted in the Army National Guard for a 6-year period while in service. 23. On 4 June 2015, she was honorably released from active duty in the Regular Army. 24. On 8 September 2015, the Director of Supply, Office of the Deputy Chief of Staff, G-4, provided an advisory opinion in which he recommended sustaining the financial liability assessed as recommended by the approving authority and holding the applicant financially liable. He further stated that after a thorough review, the Office of the Deputy Chief of Staff, G-4, concluded the FLIPL was conducted in accordance with Department of the Army Pamphlet 735-5 (Property Accountability – Survey Officer's Guide) and Army Regulation 735-5 (Property Accountability – Property Accountability Policies). 25. On 9 September 2015, a copy of the advisory opinion was sent to the applicant for review and for an opportunity to provide a response. She did not respond by the suspense date. REFERENCES: 1. Army Regulation 735-5 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 in 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 committed willful misconduct and their negligence or willful misconduct was the proximate cause of that loss, damage, or destruction. a. The following terms are defined: (1)  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 government property. Failure to comply with existing laws, regulations, and/or procedures may be considered as evidence of negligence. (2)  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. b.  Paragraph 13-43 provides that when an individual has been notified that financial liability has been approved, the individual should, with the advice of legal counsel, thoroughly review the FLIPL packet provided, then decide whether to request reconsideration of the approving authority's decision. Submit requests for reconsideration by memorandum through his or her immediate commander to the approving authority. Submit requests for reconsideration only on the basis of legal error. c.  Paragraph 13-51 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 FLIPL. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. She contends her liability in FLIPL Number WAQPFF-15-3-7 CAV-XXX is unjust and is a duplicate of court-martial charges in which she was found not guilty. 2. The evidence of record shows she was court-martialed for disobeying orders, treating a superior NCO with contempt, and wrongfully advising another Soldier to disobey an order. 3. Her court-martialed was based on her behavior/actions and she was held financially liable based on her failed duty responsibility as the supply sergeant. Although she contends she was found not guilty of responsibility for the missing records, records show she was found not guilty of making a false statement with intent to deceive. 4. She acknowledged her rights in both the FLIPL and court-martial processes. Her rights were not violated. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 6. The applicant's behavior violated the special trust and confidence placed in her as an NCO. Given the seriousness of the offense for which she was convicted, clemency is not warranted in this case. 7. There was no error or injustice in her being held financially liable or in her court-martial punishment. 8. The ABCMR is not an investigate agency. Furthermore, absent the complete facts and circumstances, the ABCMR does not normally reexamine issues of financial liability. This is the investigating officer's and approving authority's function and it will not be upset by the ABCMR unless the determination is unsupported by the evidence. The applicant in this case was advised of the loss and submitted a rebuttal. Her rebuttal was considered and the approving authority concluded she was financially liable for lost/disposal of records that resulted in a loss of U.S. Government property in the amount of $2,555.10. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009944 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009944 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2