IN THE CASE OF: BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017883 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: 6 April 2017 DOCKET NUMBER: AR20150017883 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decisions of the ABCMR set forth in Docket Number AR20060003431, dated 14 November 2006. __________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: 6 April 2017 DOCKET NUMBER: AR20150017883 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 reconsideration of his earlier request for: * reversal of the decision to hold him financially liable for the loss of government property in the amount of $970.00 * removal of the financial liability imposed against him for the loss of government property * restoration of his pay and reimbursement of all funds already paid 2. The applicant states: a.  The procedures outlined in Army Regulation 735-5 (Policies and Procedures for Property Accountability) were not followed. His commander had 15 days to start an investigation into the loss and he was required to provide him the findings and recommendations of the financial liability offer so he would have an opportunity to provide a statement of objections. b.  He was provided a copy of a memorandum, dated 9 February 2015, which recommended that he be held responsible for $970.00 of the total loss. Although the memorandum stated the report of investigation was attached, it was never provided to him. c.  On 9 March 2015, he submitted his rebuttal to the financial liability charges of $970.00 for the property loss. To date, his command has not addressed any of the matters set forth in his rebuttal memorandum, which is required in accordance with Army Regulation 735-5. d.  He has never been provided any documentation regarding his alleged negligence or alleged willful misconduct relating to the missing government property, nor has he been provided with any information regarding the proximate cause of the loss. e.  Despite the violations of Army Regulation 735-5, his pay was garnished on 20 August 2015 in the amount of $393.12. He believes the garnishment was wrongful because his administrative due process rights were violated. 3. The applicant provides: * self-authored memorandum, dated 19 September 2015 * DD Form 200 (Financial Liability Investigation of Property Loss), dated 7 January 2015 * self-authored rebuttal, dated 9 March 2015 * DD Form 2481 (Request for Recovery of Debt Due to the United States by Salary Offset), dated 24 July 2015 * email, dated 4 August 2015 * Civilian Leave and Earnings Statement for the pay period ending 8 August 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060003431 on 14 November 2006. 2. The applicant provided new arguments and new evidence not previously considered that warrant consideration at this time. 3. Records show the applicant assumed the responsibility as Airfield Facilities Manager for the 12th Aviation Battalion in July 2003. 4. On 18 June 2004, he signed a sub-hand receipt for the organizational equipment. 5. In September 2004, he learned that a trimmer mower was missing from one of the organization's storage sheds. He did not report the missing equipment to his superiors. 6. In February 2005, his commander conducted a 100-percent property inventory, which showed the trimmer was still missing. Following the inventory, the applicant changed the lock on the storage shed and instituted an updated procedure for controlling access to the keys to the shed. 7. On 19 April 2005, his commander appointed an investigating officer pursuant to Army Regulation 735-5, paragraph 13-24, to conduct an investigation of property loss for inquiry/Financial Liability Investigation of Property Loss 02-05. 8. On 18 May 2005, the investigating officer signed the DD Form 200 in question and he submitted his report to the appointing authority on 19 May 2005. a.  His findings were as follows: (1)  The applicant, as the sub-hand receipt holder for the property in the storage building and as the person in charge of the key control, had supervisory responsibility for the missing mower. (2)  Prior to the disappearance of the mower, Company E, Airfield Services, did not maintain a key control log that would account for daily access to the storage facility and therefore daily control and accountability were not enforced. (3)  The applicant stated that Mr. C____ informed him about the door lock problem with building 3130 and after Mr. C____ reported the lock problem, he immediately changed the door lock. Mr. C____ stated that in October 2004, he reported the door lock problem but nothing was done to fix the door until later in the year. Mr. C____ personally took the applicant and showed him the door lock was not working. b.  He concluded the applicant not only had supervisory responsibility over the services personnel, but he was assigned as the Airfield Services Branch Chief and he directed the activities of 20 specialists and technicians. Also, he signed for the missing mower and his responsibilities were to ensure that all government equipment under his hand receipt was properly used and cared for and that proper custody and safekeeping of the property was ensured. (1)  Prior to October 2004, Airfield Services was not complying with Army equipment safekeeping standards. The key to the storage facility was not being accounted for daily and the storage facility was left open without any proper care or supervision on a daily basis. He found that prior to the disappearance of the mower, members of Company E borrowed Airfield Services equipment for personal use, proper supervisory control was not maintained to prevent this from happening, and daily control and accountability were not enforced by the supervisors or the company commander. (2)  After the disappearance of the mower, the applicant gave his employees a grace period in an attempt to recover the mower; this was uneventful and the mower was not returned. The applicant did not report the missing equipment and Captain (CPT) T____ B____ discovered the missing equipment during his 100-percent property inventory in February 2005. There was no explanation why the equipment was not reported missing. After the incident, the applicant, in an attempt to regain proper custodial control of the equipment, established safeguarding procedures, changed all keys and locks to the storage facilities, and stated he issued a memorandum to his employees regarding key control and proper storage facility custodial responsibilities. Key control is now a standard procedure, but file keeping of the used key control sheet is not accomplished. Key control file keeping must be done to prevent this from happening again and to keep records of who has signed out the keys to the storage facility. Three members of the Airfield Services section were asked if they had seen written procedures regarding key control and storage facility safekeeping and they advised that the applicant had passed verbal guidance after the disappearance of the mower. The applicant could not produce written guidance at the time of the interview. (3)  CPT T____ B____ originally signed for the items on his hand receipt, but the item in question was sub-hand receipted to the applicant. The applicant neglected to inform CPT T____ B____ of the missing mower in a timely manner and that prevented CPT T____ B____ from acting properly. c.  He recommended immediate establishment of written guidance regarding key control and storage facility care and conduct of a 100-percent property inventory by a third party as soon as possible. He also recommended counseling all members of the Airfield Services section regarding the proper custody, care, and safekeeping to ensure that all government property within his or her care was properly accounted for, establishment of proper timely reporting procedures, and proper supervision of subordinates. d. He further recommended holding the applicant responsible for the loss of the equipment since he had custodial, supervisory, and direct responsibility for the trimmer mower. 9. On 1 June 2005, the applicant signed the DD Form 200 indicating he had been informed of his right to legal advice. He submitted a rebuttal and a memorandum for record, dated 1 September 2004, subject: Key Box Access Roster, Building 3137; Key and Lock Inventory Listing, dated 30 May 2002; Dynacorp Log for the period 12 March through 29 November 2004; and Airfield Services Standard Operating Procedures. 10. On 20 June 2005, an administrative law attorney reviewed the Financial Liability Investigation of Property Loss 02-05 and noted there was no indication that consideration was given to the possibility of others having access to the storage area. He recommended returning the investigation report to the investigating officer. 11. On 2 August 2005, the investigating officer notified the applicant by memorandum and through his commander, subject: Financial Liability Investigation of Property Loss 02-05, $760.00, of his recommendation for holding him responsible for charges of financial liability to the U.S. Government in the amount of $570.00 for the loss of government property investigated under the subject investigation of property. The investigating officer also advised the applicant of his rights and instructed him to completed blocks 16a through 16h of the disputed DD Form 200. He was given until 10 August 2005 to complete the form and return it to the investigating officer. He was further advised that if he did not return the requested information by 31 May 2005, the Financial Liability Investigation of Property Loss would be forwarded to the approval authority as is. The applicant acknowledged receipt of the notification on the same date. 12. On 27 September 2005, he acknowledged he reviewed the investigating officer's second analysis of what occurred relating to the trimmer. 13. On 11 October 2005, an administrative law attorney determined the Financial Liability Investigation of Property Loss 02-05 remained legally insufficient. He recommended returning the investigation report to the investigating officer. 14. On or about 11 October 2005 through 10 November 2005, the investigating officer verified the applicant's rebuttal statement and: a.  He concluded the applicant not only had supervisory responsibility over the Airfield Services personnel, but he was assigned as the Airfield Services Branch Chief; he directed the activities of 20 specialists and technicians; he signed for the missing mower; and his responsibilities were to ensure that all government equipment under his hand receipt was properly used and cared for and that proper custody and safekeeping of the property was ensured. b.  He recommended changes in key and building access control. 15. On 10 November 2005, an administrative law attorney determined there was sufficient evidence to support the finding that the applicant was negligent and his negligent conduct was the proximate cause of the loss. 16. On 21 November 2005, the commander approved the investigating officer's recommendation to hold the applicant liable for the loss of the trimmer. 17. On 20 December 2005, he requested reconsideration of the financial liability assessment against him for the loss of government property. 18. On 27 December 2005, his battalion commander issued a memorandum for record denying his request for reconsideration of financial liability in the amount of $570.00. 19. On 4 January 2006, the Air Operations Group Commander and appeal authority, signed a memorandum for record denying his request for reconsideration for relief of $570.00 pertaining to the loss of equipment. 20. Headquarters, 12th Aviation Battalion, memorandum to the applicant, dated 5 January 2006, subject: Request for Reconsideration, shows he was notified his reconsideration request had been disapproved. 21. On 14 November 2006, the ABCMR denied his request for removing the financial liability imposed against him for the loss of government property in the amount of $570.00 and reimbursing him any funds already paid toward the liability. 22. He provided a rebuttal statement, dated 9 March 2015, in which he stated he conducted his own investigation and he found personnel assigned to the Airfield Management Section of the Airfield Division have continually provided anyone in the vicinity of building 3130 open access along with ample opportunity to illegally appropriate any number of Airfield Services tools and equipment due to not properly securing the facility. He included: a.  a proposed DA Form 200 to replace the form on file. The proposed form is incomplete, unsigned, and was not approved by the appropriate authority; b.  a DD Form 2481, dated 24 July 2015, that shows $393.12 was taken from his pay by the Defense Finance and Accounting Service on behalf of the Army Air Operations Group, Airfield Division, Fort Belvoir, in accordance with a memorandum, dated 3 April 2015, which was provided to him as part of his due process; c.  an email, dated 4 August 2014, advising him the Financial Liability Investigation of Property Loss had been sent to finance for collection; d.  a copy of his Civilian Leave and Earnings Statement for the pay period ending 8 August 2015 that shows a debt in the amount of $393.12; and e.  a memorandum, dated 19 September 2015, in which he stated he conducted his own inventory of the equipment and determined that certain lawn maintenance items were missing and he subsequently prepared a DD Form 200 informing his command of the situation. REFERENCES: Army Regulation 735-5 provides policies and procedures for accountability of Army property and provides the procedures for conducting reports of survey. It provides that a report of survey documents the circumstances concerning the loss, damage, or destruction of government property and serves as, or supports a voucher for adjusting property from accountable records. It also documents a charge of financial liability assessed against an individual or entity, or provides for relief from financial liability. A report of survey is mandatory when negligence or willful misconduct is suspected as the cause and the individual does not admit liability and refuses to make voluntary reimbursement to the government for the full value of the loss, less depreciation. a.  Paragraph 13-8 (Time Constraints for Initiation of Financial Liability Investigations of Property Loss), in effect at the time, stated the Active Army will initiate and present financial liability investigations of property loss to the appointing authority or approving authority as appropriate not later than 15 calendar days after the date of discovering the discrepancy. b.  Figure 13-8 (Sample Completed DD Form 200, Financial Liability Investigation of Property Loss, Reverse Side, Blocks 15 through 17f Completed), in effect at the time, showed instructions for completing block 16 (Individual Charged) and stated the individual charged was to place an "X" in the block indicating in: (1)  block 16a – "I HAVE EXAMINED THE FINDINGS AND RECOMMENDATIONS OF THE FINANCIAL LIABILITY OFFICER AND" (2)  block 16b – "I HAVE BEEN INFORMED OF MY RIGHT TO LEGAL ADVICE. MY SIGNATURE IS NOT AN ADMISSION OF LIABILITY." c.  Paragraph 13-10d(16), now in effect, states the individual charged will have the opportunity to examine the findings and recommendations of the financial liability officer and indicate whether he or she will make a statement and indicate such, acknowledge he or she has been informed of rights to legal advice, and his or her signature is not an admission of liability. DISCUSSION: 1. The applicant contends he was unjustly held liable for a mower, U.S. Government property, in the amount of $970.00 and he was not afforded due process and funds were erroneously deducted from his pay. He also contends he conducted his own investigation and determined that certain lawn maintenance items were missing and he subsequently prepared a DD Form 200 informing his command of the situation. 2. The evidence of record shows the Financial Liability Investigation of Property Loss was conducted in accordance with Army Regulation 735-5 and there were no violations of the applicant's rights. 3. The evidence of record also shows he was ultimately found financially liable for the loss of U.S. Government property in the amount of $570.00. 4. Although he failed to make a selection in block 16a of his DD Form 200, records show he acknowledged he received the findings and recommendations of the investigating officer on 2 August 2005. Further, he acknowledged he received the investigating officer's second analysis on 27 September 2005. 5. He was afforded due process in each of his appeals and while the outcome did not change, he was not required to pay the financial liability assessed against him until all appeals had been exhausted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017883 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017883 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2