IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150017541 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: 23 June 2016 DOCKET NUMBER: AR20150017541 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: 23 June 2016 DOCKET NUMBER: AR20150017541 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 a DD Form 200 (Financial Liability Investigation of Property Loss (FLIPL)) was initiated in April 2012; however, the investigating officer (IO) was not appointed under the provisions of (UP) Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) until August 2012. He also states: * on 4 June 2013, he was initially notified that financial liability was recommended against him in the amount of $5,188.00 * he submitted a rebuttal * on 25 July 2013, he was notified that his rebuttal was denied and financial liability was assessed against him in the amount of $5,188.00 * he submitted a request for reconsideration/appeal * on 24 February 2014, he was notified that his request for reconsideration/ appeal was denied * he was assessed financially liability in the amount of $5,188.00 a. He states that in order for an individual to be held financially liable the facts must clearly demonstrate that a loss occurred, the individual was responsible, the individual was negligent, and that the individual's negligence was the proximate cause of the loss. b. He also states that a loss occurred and he assumed responsibility for the items by initiating the FLIPL. However, he was not negligent nor was negligence the proximate cause of the loss. c. He further states that the FLIPL was open for over 22 months (from the date of initiation until it was closed), which violates the time constraints for processing a FLIPL, and he was not afforded due process. He adds that his original rebuttal, request for reconsideration/appeal, and the additional supporting evidence he provides shows in detail the errors/injustices of the FLIPL. 3. The applicant provides copies of the following documents (that are more specifically identified in his Index of Enclosures): * rebuttal with enclosures * request for reconsideration/appeal * notification of assessment of financial liability * request for extension of rebuttal period * corrected notification memorandum and rebuttal denial * denial of reconsideration/appeal and legal review * DD Form 200 and letter of lateness * reestablishment of accountability memorandum * applicant's sworn statement, IO interview, and email * change of command (CofC) FLIPL * IO appointment memorandum * IO's email messages (requests for information) * financial liability memorandum (to a noncommissioned officer (NCO)) * rebuttal statement with enclosures submitted by the NCO * division legal review and rebuttal by the NCO * FLIPL, April 2012 (Original Value: 1.1 Million Dollars) * examples of incomplete DD Forms 1750 (Hand Receipt Holder) * email messages (brigade rear detachment/company commanders) * remainder of complete investigation provided to applicant * 2011 Military Pay Scale CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer, on 29 May 2004, in the rank of second lieutenant (aviation branch) and entered active duty. He was promoted to captain/pay grade O-3 on 1 July 2007. 2. A review of records in the applicant's Official Military Personnel File shows he: a. assumed command of Headquarters and Headquarters Company (HHC), 82nd Combat Aviation Brigade (CAB), 82nd Airborne Division, Fort Bragg, NC, on an unspecified date in June of 2011; b. deployed to Afghanistan in support of Operation Enduring Freedom from 15 September 2011 for a period of 365 days; c. relinquished command of HHC, 82nd CAB, on 21 June 2013; and d. was promoted to major/pay grade O-4 on 1 May 2014. 3. A review of the applicant's military personnel records failed to reveal a copy of the FLIPL. 4. In support of his application the applicant provides the following documents. a. DD Form 200, Inquiry/Investigation Number WAA6AA-13-HQ82D-44, initiated by Sergeant Christy M___, Supply Sergeant, HHC, 82nd CAB, Fort Bragg, on 29 June 2012, with enclosures (including an appointment of IO memorandum, draft DA Forms 200 (FLIPLs), email messages, a sworn statement, and memoranda to reestablish accountability). It shows, on 29 March 2012, upon assumption of duties as Supply Sergeant, property discrepancies were brought to her attention. The items listed (in blocks 1 through 10) were noted as being unaccounted for during the CofC inventories between the outgoing commander (CPT Tara T____) and incoming commander (the applicant) with a total (adjusted) cost of $121,681.88). * on 6 March 2013, the responsible property record officer (the applicant; Commander, HHC, 82nd CAB), indicated the former supply sergeant (Staff Sergeant (SSG) Robert D. T____) was negligent and should be held liable for the missing property for not properly conducting inventories during the CofC and the property book split * on 12 March 2013, the accountable officer (Property Book Officer, 82nd CAB) indicated document number WCEZAA 3071 8008 was used to adjust the property record * on 14 March 2013, the financial liability officer indicated a dollar amount of loss of $173,791.88 * on 14 March 2013, the individual charged was notified of the financial liability; he submitted a rebuttal statement with enclosures * on 22 April 2013, the appointing authority (Commander, 82nd CAB) approved the FLIPL * the approving authority section of the FLIPL is not signed; it identifies Brigadier General Brian A. M___, Deputy Commanding General, Support (DCG(S)), 82nd Airborne Division, Fort Bragg. b. HHC, Task Force Pagasus, Bagram Airfield, Afghanistan, memorandum, dated 24 July 2012, subject: Letter of Lateness for FLIPL # WCEZAA, shows the applicant affirmed that upon assumption of command of the unit, he conducted a CofC property inventory with the outgoing commander. Discrepancies were found and a FLIPL was initiated; however, the FIPL was not finalized prior to deployment. Once in theater, it was discovered that the property book was not accurately split and more discrepancies were discovered. He noted the FLIPL was submitted late due to the time required to gather appropriate information. c. A DA Form 2823 (Sworn Statement), dated 10 August 2012, that shows the applicant provided a sworn statement to the IO. He stated that during the CofC inventory, the supply sergeant (SSG T___) was unable to locate the equipment being investigated (listed on the FLIPL, dated 29 June 2012). He stated that SSG T____ initiated an original CofC FLIPL and the outgoing commander signed it on 7 July 2011; however SSG T___ did not properly track the CofC FLIPL and it was not fully processed. Prior to deploying to Afghanistan in September 2011, a property book split was required. After deploying, the original inventory document could not be located. Then, in November 2011, discrepancies were discovered during 100 percent organizational inventories between the forward property book and equipment actually forward. The brigade S-4 advised the applicant to combine a remake of the original CofC FLIPL with property book split discrepancies. During the next couple of months, very little equipment was found in the rear. The applicant requested early redeployment of SSG T___ in order for him to assist in locating items in the rear. He concluded that SSG T___ did not properly prepare the hand receipt holders for the property book split inventory prior to deployment. d. Company A, 122nd Aviation Support Battalion, 82nd CAB, 82nd Airborne Division, Fort Bragg, memorandum, dated 14 March 2013, subject: FLIPL # WAA6AA-13-HQ82D-44 ($3,441.00), that shows the IO notified SSG Robert D. T____, he was being recommended for charges of financial liability in the amount of $3,441.00. On 28 March 2013, SSG T____ provided a 4-page rebuttal statement that included a history of inventories, difficulties encountered with personnel involved with the CofC and property book split, and enclosures (including email messages and photographs of equipment). e. Headquarters, Office of the Staff Judge Advocate, 82nd Airborne Division, Fort Bragg, memorandum, dated 20 May 2013, subject: Legal Review of FLIPL WAA6AA-13-HQ82D-44 ($121,681.88), that shows the Administrative Law Attorney advised the Commanding General (CG), in pertinent part, "The delay in this FLIPL precludes a fair assessment of liability against SSG T____; he should be absolved. These same delays do, however, result from decisions taken by the Company Commander [applicant], and you may assess liability against him." He also provided the CG a review of the losses due to delayed CofC FLIPL and those arising from the property book split. f. Headquarters, 82nd Airborne Division, Fort Bragg, memorandum, dated 4 June 2013, subject: Assessment of Liability, Investigation Number WAA6AA-13-HQ82D-44 ($121,681.88) that show the DCG(S) notified the applicant that an approved charge of financial liability was assessed against him by the United States Government in the amount of $5,630.70, for the loss of Government property investigated under the FLIPL. It also shows he was advised of his rights and of available administrative procedures. g. HHC, 82nd CAB, Fort Bragg, memorandum, subject: Request for Extension of FLIPL Rebuttal Period (FLIPL # WAA6AA-13-HQ82D-44; $121,681.88, in which the applicant requested a 10-day extension of the rebuttal period pertaining to the recommendation of financial liability assessment. h. HHC, 82nd CAB, Fort Bragg, memorandum, dated 25 June 2013, subject: Rebuttal to FLIPL (FLIPL #WAA6AA-13-HQ82D-44; $121,681.88), in which the applicant requested that he be absolved of financial liability of all items on the FLIPL. It shows: * on 5 June 2013, he received notification from the FLIPL approving authority of an approved charge of financial liability in the amount of $5,630.70 * he was not previously afforded an opportunity to rebut the recommendation and requested the memorandum serve as his rebuttal * he provided a summary of – * property accounted for * background on the matter * legal issues * his response to the division legal review * information refuting responsibility, culpability, and proximate cause * he intended to submit a request for reconsideration to the next higher authority on the basis of legal error in the event the rebuttal was overruled i. Headquarters, 82nd Airborne Division, Fort Bragg, NC, memorandum, dated 25 July 2013, subject: Financial Investigation of Property Loss Number WAA6AA-13-HQ82D-44; $121,681.88, that shows the DCG(S), notified the applicant that, on 4 June 2013, he was incorrectly furnished a copy of a memorandum which notified him that financial liability had been assessed against him. The memorandum was incorrectly formatted and should have instead been a notification that financial liability was recommended, not assessed (emphasis in memorandum). The DCG(S) acknowledged receipt of the applicant's 25 June 2013 rebuttal. He also informed the applicant that, after consideration of his rebuttal, he was notifying the applicant of his assessment of financial liability to the U.S. Government in the amount of $5,188.80 for the loss of government property investigated under the FLIPL. j. Headquarters, 82nd Airborne Division, Fort Bragg, memorandum, dated 31 July 2013, subject: Assessment of Financial Liability, Investigation Number WAA6AA-13-HQ82D-44; $121,681.88, that shows the DCG(S) notified the applicant that an approved charge of financial liability was assessed against him by the United States Government in the amount of $5,188.80, for the loss of Government property investigated under the FLIPL. It also shows he was advised of his rights and of available administrative procedures. k. HHC, 82nd CAB, Fort Bragg, memorandum, dated 8 August 2013, subject: Request for Reconsideration of Assessment of Liability for FLIPL (FLIPL # WAA6AA-13-HQ82D-44; $5,188.80), in which the applicant requested the assessment of financial liability against him be reconsidered based on legal error. He provided the following information: * on 26 July 2013, he received notification of assessment of financial liability * he acknowledged command responsibility for all items remaining unaccounted for on the FLIPL * the FLIPL deals with two sets of lost property – * property discovered missing during his incoming CofC inventory * two items packed and shipped to Afghanistan prior to being afforded the opportunity to conduct a property book split inventory with the rear detachment commander * the assessment of liability is erroneous based on an improper finding that his actions were negligent and that this negligence was the proximate cause of the loss * he behaved as a reasonable person with his level of training would in his situation – * he recreated the original (lost/misplaced) CofC FLIPL with his signature on it * he relied on his supply sergeant to ensure the property book split inventory was conducted properly * he asserts the proximate (direct) cause of the loss – * of the original CofC items cannot be determined * occurred during his incoming CofC inventories in June 2011, prior to his assumption of command * was due to the property book split inventory not being accomplished prior to forward items being shipped to Afghanistan * was due to incomplete load plans by each of the sections failing to identify items shipped * he noted significant administrative mishandling of the FLIPL l. Headquarters, 82nd Airborne Division, Fort Bragg, memorandum, dated 11 December 2013, subject: Appeal of Investigation of Property Loss (WAA6AA-13-HQ82D-44; $121,681.88), that shows the DCG(S) notified the Commander, XVIII Corps, that he reviewed the new evidence submitted by the applicant in conjunction with the investigation of property loss and determined that the assessment of financial liability should continue. (1) He stated, "[a] commander may be liable for equipment that was lost prior to his command if he signed for it and failed to initiate proper adjustment documents in time. Such a failure lets the audit trail fade, and with it, any hope of reestablishing accountability. A commander who allows this to happen assumes responsibility for the losses. Likewise, a commander abdicates his responsibility when he fails to lead his company's property book split. Any lapse of oversight invites financial liability. There is enough evidence to find the applicant liable on both of these grounds." (2) The DCG(S) provided the Commander, XVIII Airborne Corps, a complete copy of the investigation, including the new evidence submitted by the applicant. m. Headquarters, XVIII Airborne Corps, Fort Bragg, memorandum, dated 22 January 2014, subject: Legal Review of Request for Reconsideration: FLIPL WAA6AA-13-HQ82D-44, that shows the Administrative Law Attorney advised the DCG that requests for reconsideration are reviewed only on the basis of legal error. (1) The attorney reviewed both the request for reconsideration and the FLIPL and found no legal error. He also found the FLIPL legally sufficient. He noted that, despite the issues raised by the applicant, the facts of the case support an assessment of financial liability. He concluded that the DCG(S), 82nd Airborne Division, did not err in approving liability. (2) The attorney advised that, despite the finding of no legal error, the DCG may find it equitable to grant relief of financial liability in whole or in part based on mitigating circumstances the applicant raised (i.e., lengthy delays in the investigation and the additional year taken to complete the investigation after the FLIPL was initiated). Additionally, the applicant's efforts to locate the items while receiving very little cooperation from the rear detachment. He concluded that these mitigating circumstances may justify reduced liability. n. Headquarters, Fort Bragg, memorandum, dated 15 February 2014, subject: Request for Reconsideration of FLIPL (WAA6AA-13-HQ82D-44; $121,681.88, that shows the appeal authority denied the applicant's request for reconsideration of assessment of financial liability. It also shows the decision is final and no further request for reconsideration is allowed. 5. In connection with the processing of this case, the Deputy Chief of Staff (DCS), G-4, Washington, DC, was asked to review the applicant's application, along with the military records, with instructions to take administrative action, if appropriate. Otherwise, a comprehensive advisory opinion was requested. a. On 29 February 2016, the Director of Supply, DCS, G-4, stated that after a thorough review of the matter, it was concluded that the FLIPL was conducted in accordance with AR 735-5 (Property Accountability Policies) and the recommendation to hold the applicant liable should be upheld. b. The DCS, G-4, recommended that the financial liability assessed against the applicant be sustained as recommended by the appealing authority. 6. On 2 March 2016, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity (30 days) to submit comments or a rebuttal. The applicant failed to provide a response. REFERENCES: 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/her 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 13-29 (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. c. 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. d. 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. DISCUSSION: 1. The applicant contends he should be relieved from financial liability for the loss of property because of untimely initiation and processing of the FLIPL, the FLIPL contains errors, he was not negligent nor was negligence the proximate cause of the loss, he was not afforded due process, and the FLIPL was unjust. 2. The evidence of record shows the applicant assumed command of HHC, 82nd CAB, on an unspecified date in June 2011 and he acknowledged that a CofC inventory occurred with the outgoing commander in June 2011. He also acknowledged discrepancies were found at that time; however, the FLIPL was not finalized prior to him deploying to Afghanistan in September 2011. Additionally, a property book split occurred at this time without the missing property being accounted for. a. On 24 July 2012, the applicant acknowledged the reason for the lateness in processing the FLIPL (initiated against SSG Robert D. T___, Supply Sergeant) was due to the time required to gather information. b. An IO was appointed on 7 August 2012. c. On 14 March 2013, SSG T____, was notified he was being recommended for charges of financial liability. He provided his rebuttal statement within two (2) weeks. d. On 20 May 2013, the CG, 82nd Airborne Division, was provided legal advice that the delay in the FLIPL precluded a fair assessment of liability against SSG T____ and that he should be absolved. However, the delays resulted from decisions made by the applicant and the CG could assess liability against him. e. On 4 June 2013, the applicant was initially notified that financial liability was recommended against him in the amount of $121,681.88 (1) On 24 June 2013, he submitted his rebuttal; it was denied on 31 July 2013. (2) On 8 August 2013, he submitted his request for reconsideration of assessment of liability for the FLIPL. (3) On 22 January 2014, the DCG, XVIII Airborne Corps, found no legal error in the FLIPL, found the FLIPL legally sufficient, and concluded that the DCG(S), 82nd Airborne Division, did not err in approving liability. (4) Accordingly, on 15 February 2014, the appeal authority denied the applicant's request for reconsideration of assessment of financial liability. f. On 29 February 2016, the Director of Supply, DCS, G-4, reviewed the matter and concluded that the FLIPL was conducted in accordance with AR 735-5 and the recommendation to hold the applicant liable should be sustained as recommended by the appealing authority. 3. On 24 July 2012, the applicant acknowledged the reason for the lateness in processing the FLIPL (initiated against SSG Robert D. T___, Supply Sergeant) was due to the time required to gather information. This was 13 months after the applicant's CofC inventory in which there were discrepancies and 8 months after the "discovery" of discrepancies related to the property book split. a. The evidence of record shows the FLIPL against the supply sergeant (that was initiated by the applicant) was revised (in June 2013) to show the applicant as the subject of the FLIPL. b. The applicant's contention that the FLIPL was not timely submitted is not easily understood since the evidence of record shows he contributed to a significant portion of the lateness in the initiation and initial processing of the FLIPL. 4. The evidence of record shows the applicant was afforded due process (i.e., during his interview by the IO; in the time afforded him to reconcile property book discrepancies; and by notification of financial liability by the appointing authority, consideration of his rebuttal and appeal, and reconsideration of his appeal). 5. The evidence of record shows a commander may be liable for equipment that was lost prior to his command if he signed for it and failed to initiate proper adjustment documents in time. The CofC property inventory occurred in June 2011 and the applicant deployed three months later without having resolved the CofC property book inventory discrepancies. Additionally, the evidence of record shows the applicant abdicated his responsibility when he failed to lead his company's property book split prior to deploying to Afghanistan. A commander who allows this to happen is negligent (i.e., the failure to act as a reasonably prudent person would have acted under similar circumstances) and assumes responsibility for the losses. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017541 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017541 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2