ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


               	IN THE CASE OF:  .
BOARD DATE: 22 October 2019 
DOCKET NUMBER: AR20160014027

APPLICANT REQUESTS: remission or cancellation of indebtedness as the result of 
a Financial Liability Investigation of Property Loss (FLIPL) investigation.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   *	DD Form 149 (Application for Correction of Military Record)
   *	FLIPL investigation packet 
FACTS:
1.	The applicant did not file within the three year time frame provided in Title 10, 
United States Code (USC), section 1552(b); however, the Army Board for Correction 
of Military Records (ABCMR) conducted a substantive review of this case and 
determined it is in the interest of justice to excuse the applicant's failure to timely file.

2.	The applicant states he is requesting remission or cancellation of indebtedness 
under the provisions of Army Regulation (AR) 600-4 (Personnel General – 
Remission of Cancellation of Indebtedness). He is currently subject to a Medical 
Evaluation Board and expects to be separated sometime this fall.  This debt will 
result in an undo financial burden at the end of an otherwise outstanding career. No 
part of his performance of duties was the proximate cause for this loss. This is the 
primary reasoning for his request as advised by legal counsel. Security and sub- 
hand-receipts were not the cause of this loss. The equipment was improperly 
returned to his subordinates as part of their routine duties.  He worked extremely 
hard in the position of committee chief and in all aspects left the committee better 
than he found it; including the property book.

3.	The applicant provides the FLIPL packet that consisted of the following:

   a.	An Appointment Order for Investigating Officer (IO) , FLIPL memorandum, 
dated 29 July 2015, wherein the Commander (applicant’s commander), 1st Special 
Warfare Training Group (Airborne), Fort Bragg, NC, appointed an IO, pursuant to 
AR 735-5 (Property Accountability and Policies), paragraph 13-24, to conduct an 
investigation of property loss.
   



   b.	Two Request for Extension, FLIPL, W1E01H-15-B3BN-0075, memoranda, 
dated 12 August and 1 September 2015, wherein the IO requested an extension as 
he had uncovered additional missing property as well as a number of potentially 
problematic property accountability and security practices that required further 
investigation.

   c.	A Findings and Recommendations memorandum, dated 2 September 2015, 
wherein in the IO recommended the applicant and his company commander be 
found financially liable for the lost equipment with a total cost of $12,842.78 (due to 
depreciation the current cost was $10,309.63).

   d.	Two FLIPL memoranda, dated 16 September 2015, wherein the applicant and 
his company commander were notified of the recommendation for charges of 
financial liability to the Government in the amount of $2,281.42 and $3,224.36, 
respectively, and their rights.

e.	An Updated Findings and Recommendations memorandum, dated
13 October 2015, wherein the course manager stated he believed the properly was 
stolen and it would not serve the interests of justice to place the full cost of the 
financial liability on the applicant and recommended the applicant’s respective 
liability remain at $3,224.36.

   f.	A Legal Review of FLIPL memorandum, dated 19 November 2015, wherein 
the Chief, Military Law, U.S. Army John F. Kennedy Warfare Center and School, 
Fort Bragg, stated:

*	the FLIPL was legally sufficient subject to the noted corrections
*	found the evidence supported a finding that the applicant had direct 
responsibility/supervisory responsibility for the lost items
*	the applicant be assessed liability in the amount of $3,2224.36 or less if it 
was determined that would serve the interests of justice

   g.	A DD Form 220 (FLIPL), signed on 17 December 2015, approving the hold of 
the applicant responsible for financially liability in the total amount of $1,000.00.

   h.	A FLIPL memorandum, dated 17 December 2015, wherein the applicant was 
notified of an approved charge of financial liability assessed against him in the 
amount of $1,000.00 and his rights.

   i.	An updated FLIPL memorandum wherein the applicant acknowledged receipt 
of the notice of assessment of financial liability.

j.	A Request for Reconsideration of Assessment of Liability for FLIPL
Number W1E01H-15-B4BN-0075, $1,000.00 memorandum, dated 20 January 2016,



wherein the applicant requested reconsideration of the assessment on the basis of 
legal error.

   k.	A Legal Review of Request for Reconsideration of FLIPL memorandum, dated 
11 March 2016, wherein a commissioned officer of the Group Judge Advocate, 
recommended denial of the applicant’s request.

   l.	An Appeal of Financial Liability Investigation of Property Loss memorandum, 
7 April 2016, wherein the applicant’s commander stated the applicant met the 
elements required to be held financially liable and he had not produced new 
evidence or a proper basis of legal error on which to relieve him of liability.

   m.	An Appeal of FLIPL memorandum, dated 13 April 2016, wherein the 
applicant’s commander stated he had reviewed the new evidence submitted by the 
applicant and had determined that the assessment of financial liability against the 
applicant should continue because the applicant met the elements required to be 
held financially liable and he had not produced new evidence or a proper basis of 
legal error on which to relieve him of liability..

   n.	A Legal Review of Appeal of FLIPL memorandum, dated 30 June 2016, 
wherein the Deputy Staff Advocate found the approving authority’s decision and 
documentation in the FLIPL to be all legally sufficient and in compliance with the 
regulation.

o.	A Request for Reconsideration, Investigation Property Loss
Number W1E01H-15-B4BN-0075 memorandum, dated 1 July 2016, wherein the 
Commanding General, U.S. Army John F. Kennedy Special Warfare Center and 
School, Fort Bragg, denied the applicant’s reconsideration request, with no further 
request for reconsideration be allowed.

p.	A Request for Reconsideration of FLIPL $1,000.00 memorandum, dated
25 July 2016, wherein the applicant’s commander notified the applicant of the denial 
of his reconsideration request.

   q.	A FLIP memorandum, dated 25 July 2016, wherein the applicant 
acknowledged receipt of notice of assessment of financial liability.

4.	Review of the applicant’s military record shows:

   a.	He enlisted in the Regular Army on 22 October 1991. He was promoted to 
pay grade E-8 on 1 November 2008. He served continuously on active duty in 
various assignments and through several reenlistments.

   b.	An informal Physical Evaluation Board (PEB) convened on 29 November 
2016 and found him physically unfit and recommended his permanent disability 
retirement rated at 50 percent.  He waived his right to a formal hearing and
   


concurred with the findings and recommendations of the PEB. The board was 
approved on 5 January 2017.

   c.	He was honorably retired on 23 January 2017, by reason of permanent 
disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows he completed 25 years, 3 months, and 22 days of active service.

   d.	On 3 October 2019, a staff member of the Defense Finance and Accounting 
Service advised the Board that the applicant had no debt on file.

5.	By regulation 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."

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief 
was not warranted.  Based upon the documentary evidence provided by the 
applicant and found within his military service record, the Board concluded the FLIPL 
investigation was properly conducted, reviewed and all due process rights were 
afforded to the applicant.  As a result, the Board found insufficient evidence of an 
error or injustice which would warrant the remission or cancellation of indebtedness 
as the result of the applicant’s FLIPL investigation.




BOARD VOTE:

Mbr 1
Mbr 2
Mbr 3

:
:
:
GRANT FULL RELIEF
:
:
:
GRANT PARTIAL RELIEF
:
:
:
GRANT FORMAL HEARING
X
X
X
DENY APPLICATION


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.






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.

REFERENCES:

1.	Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or 
injustice. This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the three-year statute of limitations if the ABCMR 
determines it would be in the interest of justice to do so.

2.	Army Regulation (AR) 735-5 (Property Accountability and Policies)) prescribes 
the basic policies and procedures in accounting for Army property and sets the 
requirements for formal property accounting within the Army, which includes but is 
not limited to defining the Command Supply Discipline Program, its intent, and 
implementing procedures. It specifies that commanders at all levels will ensure 
compliance with all policies and procedures prescribed by this regulation that apply 
at their level of command.  AR 735-5 defines the following terms:




   a.	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.

   b.	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.

2.	Chapter 13 of AR 735-5 states that the purpose of a FLIPL documents the 
circumstances concerning the loss or damage of Government property and serves 
as, or supports, 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.  Chapter 13 also states:

   a.	An FLO’s responsibility is to determine the cause and value of the loss or 
damage of Government property listed on the DD Form 200, and determine if 
assessment of financial liability is warranted. That determination must be based on 
the facts developed during a thorough and impartial investigation. However, before 
beginning the investigation, the FLO must have an understanding of the terms 
"responsibility, culpability, proximate cause, and loss"; each term impacts upon a 
determination of financial liability. 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.

         (1)	Responsibility. General responsibility: The type of responsibility a 
person has for property determines the obligations incurred by that individual for the 
property. DA Pam 735–5 presents specific issues the FLO must consider before 
recommending financial liability. There are five types of responsibility: Command, 
Supervisory, Direct, Personal, and Custodial.

         (2)	Culpability: Before a person can be held financially liable, the facts 
must show that they, through negligence or willful misconduct, violated a particular 
responsibility or duty involving the property. Simple negligence is the absence of 
due care, by an act or omission of a person which lacks that degree of care for the 
property that a reasonably prudent person would have taken under similar 
circumstances, to avoid the loss or damage of Government property. Gross
         


negligence is an extreme departure from due care resulting from an act or omission 
of a person accountable or responsible for Government property which falls far short 
of that degree of care for the property that a reasonably prudent person would have 
taken under similar circumstances. It is accompanied by a reckless, deliberate, or 
wanton disregard for the foreseeable loss or damage to the property. Whether a 
person’s acts or omissions constitute negligence depends on the circumstances of 
each case. Negligence under some circumstances may not reflect negligence under 
other circumstances. Therefore, fully consider the following factors, as a minimum, 
when determining the reasonableness of a person’s conduct: the person’s age, 
experience, physical condition, and special qualifications; the type of responsibility 
the person had toward the property; the type and nature of the property; the nature, 
complexity, level of danger, or urgency of the activity ongoing at the time of the loss 
or damage of the property; the adequacy of supervisory measures or guidance for 
property control; the feasibility of maintaining close supervision over the property, 
given the nature and complexity of the organization or activity supervised; and/or the 
extent supervision could influence the situation considering pressing duties or lack of 
qualified assistants. Willful misconduct is any intentional wrongful or unlawful act or 
omission relating to Government property.

         (3)	Proximate Cause: Before holding a person financially liable for a loss 
to the Government, the facts must clearly show that the person’s conduct was the 
“proximate” cause of the loss or damage. That is, the person’s acts or omissions 
were the cause that, in a natural and continuous sequence, unbroken by a new 
cause, produced the loss or damage, and without which the loss/damage would not 
have occurred.

         (4)	Loss: Before holding a person financially liable for a loss to the 
Government, the facts must clearly show that the person’s conduct was the 
"proximate" cause of the loss or damage. That is, the person’s acts or omissions 
were the cause that, in a natural and continuous sequence, unbroken by a new 
cause, produced the loss or damage, and without which the loss or damage would 
not have occurred.

   b.	Paragraph 13-22c states 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.

   c.	Paragraph 13-6 provides processing time segments for the DD Form 200. For 
USAR and/or Army National Guard (ARNG), under normal circumstances, do not 
exceed 240 calendar days total processing time. Commanders may adjust the time 
segments shown in these figures downward at their discretion.
   


   d.	Paragraph 13-42 states a request for reconsideration of the assessment of 
financial liability is based on legal error. Requests for reconsideration denied by the 
approval authority will be forwarded to the appeal authority by the approval authority. 
Submission of a request for reconsideration, a hearing, remission or cancellation of 
indebtedness stops all collection action, pending a decision on the request made by 
the appropriate official.

   e.	Paragraph 13-43 states when the approving authority does not reverse their 
original decision to approve financial liability, the request for reconsideration 
becomes an appeal, which will be forwarded to the appeal authority by the approving 
authority. The request for reconsideration will set forth, in detail, any new evidence 
offered, and provide rationale why financial liability is not appropriate.

   f.	Paragraph 13-44 states the approving authority, upon receipt of a request for 
reconsideration, will review any new evidence offered, and make a decision to either 
reverse the previous decision assessing financial liability against the individual or 
recommend the continuation of the assessment of financial liability. A request for 
reconsideration will be reviewed only on the basis of legal error (that is, the request 
must establish that the facts of the case do not support an assessment of financial 
liability).





3.	AR 600-4 (Personnel General – Remission of Cancellation of Indebtedness) 
provides policy and instructions for submitting and processing packets for remission 
or cancellation of indebtedness to the U.S. Army. The regulation states requests for 
remission or cancellation of indebtedness must be based on injustice, hardship, or 
both.

NOTHING FOLLOWS