IN THE CASE OF: BOARD DATE: 23 April 2020 DOCKET NUMBER: AR20170003922 APPLICANT REQUESTS: relief from the financial debt associated with the Financial Liability Investigation Property Loss (FLIPL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Interstate Transfer * Defense Finance and Accounting Service (DFAS) letter of indebtedness * FLIPL * sworn statement FACTS: 1. The applicant states: a. In October 2010, he attempted to start his interstate transfer (IST) from California to Nevada due to a divorce and he didn't have any family within the state to live with. He moved to Nevada before the IST was initiated but continued to try to drill with California. b. He was told to Federal Express his gear from Nevada in January 2011. He found this information from the Unites States Property and Fiscal Office (USPFO) Central Issuing Facility (CIF) website for California. Thirty days later he was then called by the California IST coordinator saying he he had cleared supply and they had received all of his gear. The IST coordinator told him everything was received and set by California and he could not have been IST'd with outstanding gear or a FLIPL. c. He was then sworn into the Nevada Army National Guard (ARNG) on 22 March 2011. His supply sergeant did an initial issue of gear for him because he did not have the required equipment to train with. In 2012 after his deployment, he received a letter from the California ARNG saying he owed money for gear that he didn't turn in. d. He took the letter to his chain of command and his supply noncommissioned officer (NCO) who called the California and spoke to a command sergeant major (CSM) that was running the USPFO CIF in Camp Roberts, California. The CSM told them it was just a formality and they had his gear and it was nothing to worry about because they were getting ready for inspections. The applicant's supply NCO asked if they needed to have anything else sent to the CSM and if so to give him a list or transfer the FLIPL to Nevada. The CSM said the applicant was clear and the FLIPL would be removed. It was removed off his record. e. In 2013, he received another letter with the amount crossed out and a different amount written in saying he owed money for his equipment. His supply NCO assisted him and spoke to another Soldier at the USPFO CIF California. They were again assured they saw nothing on his record and it was an old mistake. No equipment showed on his record at that point. f. In April 2016, he received another letter saying he was indebted to the United States Government. He took it to his supply NCO and asked him if he could look up his equipment issue so he could take some documentation to the Office of the Staff Judge Advocate. The supply NCO pointed out on the supply system his case had been opened, closed, and cleared on three different occasions. It was again pointed out he could not have been transferred without his equipment being turned in or his equipment should have been transferred with him. g. Supply cases shouldn't be opened and closed almost a year apart from each other. In the certified letters, California stated they tried to email, call, or contact him with no results. He has been a full time Soldier since May 2011 and did not receive a phone call or email from anyone in CIF. h. The equipment in question was turned in through their shipping account. He had multiple supply sergeants showing the items were not on his record. They also stated they could not have issued him gear in Nevada if he had not turned in the equipment. His legal counsel has a sworn statement showing he was clear and the multiple instances California keeps trying to open his case once it was cleared. i. It took California 5 years to continuously keep bringing up the issue and it wasn't until 2016 they started taking money from him. The items were shipped and turned in over 5 years and they are now bringing it back up and taking money from him when it's harder to get ahold of the information. 2. The applicant's service records are void of documentation concerning the FLIPL or turn in of equipment. 3. The applicant provides the following documents for the Board's consideration: a. An NGB Form 22-5 (Approval and Acceptance by Service Representative for Interstate Transfer in the Army National Guard), which shows the applicant transferred to the Nevada ARNG effective 22 March 2011. b. A letter from DFAS, dated 6 April 2016 which shows the applicant had a debt of $2,417.20 due to loss or damage to government property or equipment. c. A printout from the California CIF Financial Liability Investigation, which stated the applicant did a IST without turning in his issued property, which included a list of the missing equipment. d. A memorandum from National Guard Bureau, dated 12 May 2013, which shows the applicant owed $2,587.61 for the loss of government property. e. A memorandum from the California Army National Guard, dated 13 May 2013 which shows the applicant owes $2,587.61 for loss of government property. f. A DA Form 2823 (Sworn Statement) of the applicant, dated 22 February 2017 which reiterates what he stated in his application to the Board. 4. In the processing of this case, an advisory opinion was obtained on 17 March 2020, from the Director of Supply Policy, G-4. The advisory official recommended the financial liability assessed be reversed to include reimbursement of $2,427.30 and correction of his records. After a thorough review, the advisory official concluded the FLIPL was not conducted in accordance with regulation. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 5. The applicant was provided a copy of this advisory opinion on 17 March 2020, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 6. See all applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions, his military record, the advisory opinion, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, the Board agreed that it was through no fault of the applicant that he was not properly out-processed at the Central Issue Facility (CIF). The Board concurred with the advisory official who found sufficient evidence to show the financial liability assessed should be reversed and the applicant be reimbursed $2,427.30. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XX 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 properly cleared the Central Issuing Facility (CIF) and the financial liability assessed be reversed. Such relief should result in the reimbursement of $2,427.30. 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. AR 735-5 (Property Accountability 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. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) in accordance with the authority of Title 10 USC, section 4837, the Secretary of the Army may remit or cancel a Soldier’s debt to the U.S. Army if such action is in the best interests of the United States. Indebtedness to the U.S. Army that may not be canceled under Title 10 USC, section 4837 when the debt is incurred while not on active duty or in an active status. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003922 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1