IN THE CASE OF: BOARD DATE: 12 June 2018 DOCKET NUMBER: AR20170014638 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 12 June 2018 DOCKET NUMBER: AR20170014638 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 correction of his military records to show he is not liable for the loss of government property in Financial Liability Investigation of Property Loss (FLIPL) Number WG2LAAt-XX-XXX-XXXXX-XXX in the amount of $2,901.44. 2. The applicant states he was found liable for the loss of Multiple Integrated Laser Engagement System (MILES) equipment totaling $2,901.44 from the MILES warehouse installation property located at Fort Hood, TX. The FLlPL was initiated after his change of command from C Troop, 1st Squadron, 3rd Cavalry. He was not made aware of the missing equipment until 3 days after he left the Squadron. 3. The FLlPL had many inconsistencies from the dollar amount to multiple procedural errors. His former Troop executive officer was the Commander’s Inquiry officer, but had direct possession of the equipment in question. He was appointed by the incoming commander. The entire investigation was based on the Commander’s Inquiry officer's initial investigation and he never identified himself as the executive officer or having direct supervisory responsibility as well as direct possession of the equipment in question. 4. The applicant provides: * Memorandum for Record (MFR), dated 10 September 2015, subject: After Operation Maintenance (AOM) Recovery SOP * MFR, Commander's Inquiry, dated 20 April 2016 * DD Form 200 (Financial Liability Investigation of Property Loss) * A memorandum, dated 6 May 2016, appointing Major (MAJ) F as Financial Investigating Officer (FIO) * MFR, dated 10 May 2016, subject: Findings and Recommendations of FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX, from MAJ F * Notification of recommendation for financial liability, dated 6 June 2016 * Applicant's rebuttal statement, dated 27 June 2016 * A memorandum, dated 9 July 2016, response to applicant's rebuttal * A memorandum, dated 13 July 2016, appointing MAJ D as FIO * A MFR, dated 14 July 2016, subject: Telephonic Notification of Liability Recommendation Increase for FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX * An MFR, dated 21 July 2016, subject: Findings and Recommendations of FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX, from MAJ D * An MFR, dated 27 July 2016, subject: Telephonic Notification of Liability Recommendation Increase for FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX * Legal Review, dated 28 July 2016, from the Brigade Judge Advocate * DD Form 200, final approval dated 29 July 2016 * Applicant request for reconsideration, dated 11 August 2016 * Response, dated 4 September 2016, to applicant's request for reconsideration CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant previously completed 5 months of active service in the Regular Army. He is currently a captain (CPT) serving on active duty in the Regular Army. 3. Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, GA Orders 316-56, dated 12 November 2013, assigned the applicant to Headquarters and Headquarters Company (HHC), Stryker, 3rd Infantry at Fort Hood, TX with a reporting date of 3 March 2014. 4. Headquarters, III Corps and Fort Hood, Fort Hood, TX Orders L302-010, dated 28 October 2016 assigned the applicant to Joint Readiness Training Center Operation Group at Fort Polk, LA with a reporting date of 30 March 2017. The applicant is identified as being assigned to 2nd Squadron, 3rd Cavalry Regiment, Rear Detachment. 5. An MFR, dated 10 September 2015, subject: After Operations Maintenance (AOM) Recovery SOP (standard operation procedure) standardized the AOM Recovery across the 3rd Cavalry Regiment (3CR) and provided the minimum baseline requirements for 3CR units to meet post-field operations. 6. In a sworn statement, dated 18 April 2016, Sergeant First Class (SFC) L, C Troop, 1st Squadron, 3rd Cavalry Regiment (C/1/3CR), Fort Hood, TX stated his platoon executed MILES turn-in for approximately 28 personnel on 18 December 2016. He stated the process for turn-in was unorganized due to last minute changes in the Troops return from field training exercise and departure for block leave. 7. On 20 April 2016, a commander's inquiry (CI) was conducted by First Lieutenant (1LT) J, concerning Crazyhorse Troop, 1st Squadron, 3rd Cavalry Regiment (C/1/3CR), Tactical Air Support Command (TASC) on the events relating to the accountability of 3 MILES Halo Assemblies, 2 MILES Harness Assemblies, and 2 MILES Javelin cables that were lost or stolen during the Regimental Field Training Exercise (FTX) from 1 December 2015 - 13 December 2015. a. The equipment was found to be missing on 18 December 2015. b. Crazyhorse Troop turned in the majority of their equipment to the Training Support Center (TSC) facility, where deficiencies were noted by the civilian contractors who accepted the equipment. Specialist (SPC) L acknowledged the aforementioned missing items. c. A Statement of Charges was issued to SPC L for an M2 .50 caliber machine gun laser, at a cost of $2,000. SPC L received a Statement of Charges because he lost accountability of the item and failed to have a platoon sign for it. d. The accountability of the remaining equipment was lost during the FTX or the tum-in process. e. On 27 November 2015, SPC L signed for Crazyhorse Troop's entire MILES draw from TSC. This equipment consisted of 20 sets of vehicle MILES and 124 sets of individual MILES. SPC L signed down nearly all of the equipment. Specific items including the M2 laser (paid for via statement of charges), were not signed down in order to prevent the platoons from accounting for excess equipment. f. SPC L was given 4 days to receive the equipment from the platoons prior to turn-in to TSC. The 4 days included the time spent cleaning equipment, which took approximately 3 days. g. All harnesses and halos were signed down to the platoons. Although proper documentation was recorded on DA Forms 2062 (Hand Receipt/Annex Number), the mass turn-in on 18 December 2015 was disorganized, which led to confusion as to who turned in what items. 8. 1LT J's findings during the CI included: a. Three MILES Halo Assemblies, two MILES Harness Assemblies, and two MILES Javelin cables were not accounted for. The primary finding was: During turn-in, parties involved were confused and disorganized. b. The cause of disconnect between SPC L and the sub hand receipt holders can be most appropriately attributed to the condensed timeline and the competing demands that arose during the pre-block leave period. The platoons acknowledged the likelihood of missing MILES equipment over the duration of the FTX, furthermore the turn-in process caused less understanding of who was responsible. c. The remedial action timeline after SPC L's turn-in to TSC was nonexistent because block leave started less than two hours after the TSC turn-in was complete. Under normal circumstances, the account holder would have time to inform the sub-hand receipt holder of their delinquency, resulting in a search, statement of charges, or FLIPL. The two week block leave period without searches, paperwork, or follow-up led SPC L and sub hand receipt holders to lose sight of the issue and surrounding details. By the time the Troop was re-engaged and informed of the TSC account delinquency, 3 months had passed and accountability of the paperwork was lost. d. TSC labeled the Crazyhorse account as delinquent. The Troop could no longer draw equipment from TSC for training. e. The personnel involved were SPC L and SFC L. 9. Based on the facts of his investigation 1LT J recommended a FLIPL be initiated. a. Due to the loss of paperwork and accountability, no specific individual or element could be found liable for the missing equipment lost during the Regimental FTX. The Troop, Squadron, and TSC were aware that equipment can be lost, stolen, or damaged due to field conditions. Although block leave hindered the reconciliation process to clear the TSC account, a lack of initiative and understanding prevented those involved from maintaining accountability. b. As corrective training to reduce the chances of a similar incident occurring, all platoons, commodity shops, and sub hand receipt holders will report daily their redeployment readiness as part of the "after operations maintenance" schedule, and reconciliation paperwork will be initiated and completed no later than Day 3 of the AOM process. 10. On 21 April 2016, a FLIPL was initiated for the loss of three MILES Halo Assemblies, two MILES Harness Assemblies, and two MILES Javelin cables. 11. On 6 May 2016, Lieutenant Colonel (LTC) D, Commander, Headquarters, 1st Squadron, 3rd Cavalry Regiment appointed MAJ F as FIO to conduct an investigation of property loss for FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. His task in conducting an investigation of property loss was to determine whether someone's negligence or willful misconduct was the proximate cause of the loss. If an individual was negligent, and that was the cause of the loss, it was appropriate to recommend assessment of financial liability against that individual. 12. In a sworn statement, dated 9 May 2016, CPT J, Headquarters and Headquarters Troop, 1/3CR, stated Crazyhorse Troop deployed to the field for FTX from 1 - 13 December 2015 with all MILES equipment. On 18 December 2015, Crazyhorse Troop turned in all MILES equipment to SPC L, who then turned in the equipment to TSC. TSC reported he was missing two MILES Harness Assemblies and other items. During the Regimental FTX all equipment was locked in either the executive officer's (XO) office or the supply container. No person other than CPT J or the supply NCO had any access to those locations. CPT J believes the equipment was lost in the field and a bad paper trail was the cause of questioning liability. The day the MILES equipment was turned in the Regiment was released to 2 weeks of winter leave. No search was conducted in the field after the date of loss was discovered. 13. On 10 May 2016, MAJ F submitted an MFR, subject: Findings and Recommendation of FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. a. MAJ F examined all the available evidence. Three MILES Harness Assemblies, two MILES Halo Assemblies, one Cable W29 Battery Front Panel, and one Cable SS/CLU, W1 were not accounted for in C Troop due to improper accountability by SPC L and simple negligence by the chain of command to enforce proper command supply discipline program (CSDP) and the 3CR AOM recovery schedule. In addition, there were no further searches beyond the motor pool or Troop area. b. SPC L lost accountability of the equipment during turn-in and the chain of command failed to support SPC L during the MILES turn-in on 18 December 2015 which led to what was reported as "unorganized" operations by SFC L. c. Commander stated that once he was notified of the lost on/about 17 December 2015, he sent a platoon out to help look for the lost equipment that had been missing, however, 3CR was complete with TA clean up on 16 December 2015. In addition, the Troop XO, 1LT J, stated that no search was conducted in the field. Finally, SPC L stated that the Troop did not return to the field to search for the missing items. 14. MAJ F's recommendations were: a. The applicant be held liable in the amount of $1,934.29. The applicant's base pay at the time of the loss was $5,818.80. b. SPC L be held liable in the amount of $1.934.29. SPC L's base pay at the time of the loss was $2382.00. c. Prevention of similar events in the future will involve the securing of all equipment prior to any deployment in the field. Chain of command must take an active and direct involvement in the AOM process established to prevent the loss of government property. 15. On 6 June 2016, the applicant was notified that he was being recommended for changes of financial liability to the Government, in the amount of $1,934.29 for the loss of Government property. If the approval authority approves the recommendation he may be held financially liable. The applicant had the right to: * inspect and copy Army records relating to the debt * legal advice * submit a statement and other evidence to the approving .authority in rebuttal of recommendation 16. The approval authority would consider any rebuttal statement the applicant submitted in making their determination of financial liability. 17. On 10 June 2016, the applicant signed a DA Form 200 acknowledging he examined the findings and recommendation of the FLO and submitted an attached statement of objection. Item 15a (Findings and Recommendations) of the DA Form 200 signed by the applicant states: a. Recommend the applicant and SPC L be held financially liable. b. The applicant failed to verify the turn-in of equipment in January 2016 by ensuring his TASC account was cleared and did not facilitate an organized turn-in following the Regimental FTX in December 2015. SPC L failed to properly collect equipment in accordance with the DA Forms 2062 used during equipment issue. c. Based on the age of the equipment, recommend the equipment be depreciated by 50%. The applicant and SPC L will each be held liable for $967.00, totaling $1934.00. 18. On 27 June 2016, the applicant submitted a rebuttal statement to the Recommendation of Liability, FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. a. Prior to the Regimental FTX, Crazyhorse Troop drew MILES equipment from TAS-C. SPC L signed the equipment down to the Platoon's under supervision of Crazyhorse5, CPT J. Prior to the training exercise SPC L was counseled on correct property accountability due to other mistakes he had made in the past. b. Upon returning from leave both SPC L and CPT J assured the applicant that the equipment was accounted for. c. Pursuant to Army Regulation (AR) 735-5 (Policies and Procedures for Property Accountability), para 13-31e, "Statements and other evidence provided by persons who are responsible for the property listed on a DD Form 200 may be self-serving. The financial liability officer must confirm, through the use of other independent statements and evidence gathered in the financial liability investigation, if available, as well as any other evidence of reliability that the financial liability officer considers relevant to indicate that such statements and evidence are factual." d. The evidence upon which the FLO's Findings and Recommendations was based comes from other individuals who held some sort of responsibility for the three MILES Halo Assemblies, two MILES Harness Assemblies, and two MILES Javelin cables listed on the applicable DD Form 200. Of significant importance is the fact that the CI into the whereabouts of the items at issue in FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX was completed by 1LT J (now CPT J), who later admitted that no person other than himself and the supply NCO had access to the locations where the missing items were stored during the Regimental FTX. The FLO's Findings and Recommendations was also based upon the Sworn Statements of SPC L, SFC L, and SPC G, all of whom also had some sort of duty with regard to the safekeeping of the unaccounted for three MILES Halo Assemblies, two MILES Harness Assemblies, and two MILES Javelin cables. Consequently, financial liability in this case is not appropriate because the evidence upon which the financial liability was assessed does not meet the legal standards set forth in AR 735-5, para 13-31e, and is therefore legally insufficient. e. AR 735-5 para 2-8 addresses the five types of responsibility. These responsibilities include Command Responsibility, Supervisory Responsibility, Direct Responsibility, Custodial Responsibility, and Personal Responsibility. The type of responsibility determines the obligations incurred by that individual for the property. Command Responsibility is relevant to this investigation because it is the only type of responsibility that the applicant had with regard to the property at issue in FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. Command Responsibility is defined as "the obligation of a commander to ensure all Government property within his or her command is properly used and cared for, and that proper custody, safekeeping, and disposition are provided." The applicant stated he fulfilled his obligations of Command Responsibility to the best of his ability under the then-existing circumstances. Upon assuming command of Crazyhorse Troop, he complied with the obligations set forth in the definition of Command Responsibility. First and foremost, he counseled each of his sub hand receipt holders with regard to property accountability and his expectations. He also required that [WHO] be present to verify all hand receipt layouts. He conducted appropriate inventories of the property under his command and was in constant communication with his Soldiers when property shortages surfaced so that corrective action could be quickly implemented. He took all of the appropriate steps to safeguard his property. Accordingly, he satisfied his requirements of Command Responsibility in accordance with AR 735-5. f. Department of the Army (DA) Pamphlet (DA PAM 735-5) (Financial Liability Officer's Guide), para 7-1a defines negligence as "the failure to act as a reasonable and prudent person would have acted under similar circumstances." There are two types of negligence, simple negligence and gross negligence. DA PAM 735-5, para 2-1e and f define simple negligence as "the failure to act as a reasonably prudent person would have acted under similar circumstances." Gross negligence is defined as "the extreme departure from the course of action expected of a reasonably prudent person, accompanied by a reckless, deliberate, or wanton disregard for the foreseeable consequences of the act." 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. g. DA PAM 735-5, paragraph 2-1c specifically provides that "the reasonableness of a person's conduct depends upon (1) the person's age, experience, physical condition, and special qualifications; (2) the type of responsibility the person(s) had toward the property; (3) the type and nature of the property; (4) the nature, complexity, level of danger, or urgency of the ongoing activity at the time of the loss; (5) the adequacy of supervisory measures or guidance for property control; (6) the feasibility of maintaining close supervision over the property given the complexity of the organization or activity supervised; and (7) the extent supervision could have influenced the situation considering pressing duties or the lack of qualified assistants." h. Although the Investigating Officer concluded that the applicant was negligent during the time he was in command of Crazyhorse Troop with regard to the accountability of the property at issue in FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX, analysis of the factors set forth in DA PAM 2-1c as well as the applicable circumstances tend to demonstrate that he acted as a reasonably prudent person would have acted under similar circumstances. Therefore, it cannot be said that he was negligent with regard to his care, custody, safekeeping, and disposition of the property in question. Upon taking command of Crazyhorse Troop, the applicant undertook all measures available to him in order to guarantee that all Government property for which he was responsible was obtained as well as properly secured, maintained, and stored. i. After being informed on 17 December 2015, that three MILES Halo Assemblies, two x MILES Harness Assemblies, and two MILES Javelin cables were missing that SPC L had signed out from TAS-C for their Regimental FTX, the applicant instructed 1LT J to get an extension of their equipment turn in deadline since holiday block leave was starting on 19 December 2015. The deadline was extended to 20 January 2016. The applicant instructed SPC L to have the missing property accounted for by 19 January 2016, whether that be by finding it or providing a hand receipt demonstrating that one of the platoons it had been signed down to still had the property in its possession. In the meantime, a platoon was dispatched to clean and recover lost equipment following the Regimental FTX. Upon returning from holiday block leave, the applicant spoke with SPC L and he advised the applicant that the missing three MILES Halo Assemblies, two MILES Harness Assemblies, and two MILES Javelin cables had been accounted for and timely turned in. The applicant additionally confirmed with 1LT J that the missing property had in fact been properly turned in. Based upon these reasons, the applicant states he should not be held liable for the loss of the Government property at issue in FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX because he did not act negligently during his command. j. According to AR 735-5, para 13-29c, the facts must clearly show that the applicant's "acts or omissions were the cause, that, in a natural and continuous sequence, unbroken by a new cause, produced the loss, damage, or destruction (LDD), and without which the LDD would not have occurred" in order for him to be financially liable. DA PAM 735-5, para 7-2d further states that "common sense and good judgment should always be used in determining proximate cause." A new cause is also known as an "intervening cause" which is defined by DA PAM 735- para 7-2e(2) as "a new and independent force that breaks the causal connection between the original doing and the outcome." Thus, even if actions could be considered negligent, it must still be demonstrated that the actions, rather than an intervening cause, was the direct and immediate cause. k. The applicant stated he was not the proximate cause of the loss at issue in FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. Instead, the loss was the direct result of the fact that SPC L and 1LT J did not keep him apprised of the remaining discrepancies with regard to Crazyhorse's TASC account. Therefore, because he was not the proximate cause of the loss, he should not be held liable for the missing Government property that is the subject of FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. l. If the appointing authority finds him liable for the loss, then his liability must be calculated in accordance with AR 735-5, Appendix B-2(b), which states, in pertinent part, that the subject equipment must be depreciated by ten percent per year of service and if the year of service cannot be determined then a standard 25% deduction. 19. On 9 July 2016, LTC D, Approving Authority, provided the applicant a response to his rebuttal to FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. Upon review of the applicant's rebuttal statement to the recommendation of liability, FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX, LTC D concluded the initial determination of liability remained. a. The FLO, MAJ F, received an in-brief from Regimental Legal and had no personal interest in the outcome of the investigation. He investigated the loss of equipment in accordance with the parameters identified by legal and utilized statements from personnel involved with the loss to determine his findings. It was his duty to determine if any "statements or evidence provided by persons may be self-serving," and provide a non-biased recommendation. b. Command responsibility is more than issuing a memorandum for "Sub-Hand Receipt Holders in 3CR" dated 3 November 2015. It is inherent in command and cannot be delegated to SPC L, the Troop XO, or any other person. Additionally, supervisory responsibility is inherent in the applicant's role by position, and requires him to provide proper guidance and maintain a climate that will facilitate the proper care of Government equipment. c. LTC D found the applicant's actions to constitute simple negligence. Per DA PAM 735-5 paragraph 2-1c, the reasonableness of his actions did not coincide with the expectations of a Troop Commander with his age, experience, qualifications, type of responsibility, the nature of the activity, and the extent supervision could have influenced the situation. By his own admission, the applicant knew SPC L had previous failures in property accountability of the same type of equipment. As a second time company commander, the applicant should have taken actions to ensure 100% accountability in accordance with the 3CR AOM Recovery SOP that required MILES turn-in no later than Day 1 (14 December 2015). This was the guidance provided. The applicant's simple negligence enabled the loss of accountability. d. LTC D found the applicant's acts to contribute to the loss of accountability. · After identifying SPC L as incapable of managing the MILES gear, he did not formalize a strict turn-in procedure or utilize his assigned 92Y30 or 92Y1O (Unit Supply Specialist) to conduct a standard property transaction. The applicant's failure to enforce the AOM Recovery SOP contributed to the loss of accountability. e. Upon reconfirming the applicant's financial liability, LTC D reviewed the initial decision to charge the applicant $967.00. Upon further review of DA PAM 735-5, this amount equates to 25% of total cost ($3,868.58) and is fair considering the wear and tear associated with the equipment. LTC D found the applicant partially liable for the loss of accountability and held him financial liable for $967.00. 20. On 13 July 2016, LTC) D, appointed MAJ D as FIO to conduct an investigation of property loss for FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. MAJ D relieved MAJ F of his duties as a FIO due to his retirement processing requirements and the start of his transition leave. MAJ D'S task in conducting an investigation of property loss was to determine whether someone's negligence or willful misconduct was the proximate cause of the loss. If an individual was negligent, and that was the cause of the loss, it was appropriate to recommend assessment of financial liability against that individual. 21. An MFR, dated 14 July 2016, documents a telephonic notification of liability recommendation increase for FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. SPC C spoke with the applicant and notified him the amount he was due to be charged changed from $967.00 to $1,372.46. This change was due to the difference between his base pay and the base pay of SPC L at the time of loss in accordance with DA PAM 735-5 and AR 735-5. The applicant acknowledged the change and stated he would be submitting a request for reconsideration to the approving authority. 22. On 21 July 2016, MAJ D submitted a MFR, subject: Findings and Recommendation of FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. MAJ D's findings included: a. On 27 November 2015, approximately 20 sets of vehicle MILES and 124 sets of individual MILES were issued to SPC L, the designated MILES signature card appointee for C/1/3CR. SPC L sub-hand receipted the majority of the equipment to the platoons and stored the remaining equipment in a supply connex and the XO's office. The platoons returned their MILES equipment to SPC L on 18 December 2015. The MILES turn-in from the platoons to SPC L was described as disorganized. In accordance with the published Regimental AOM Recovery SOP (dated 10 September 2015), MILES inventory with Troop MILES hand receipt holder and prep for turn-in should have been conducted on 14 December 2015. Concluding the platoon turn-in on 18 December 2015, a detail loaded the equipment into a container for turn-in to TASC. SPC L returned the items to TASC where an inventory by TASC personnel identified the missing equipment. SPC L believed that the missing equipment was written off as a "field loss." b. The applicant stated that he was informed of the missing equipment by 1LT J on 17 December 2015 but there is no corroborating evidence to support this statement. All evidence indicates that the platoons started MILES turn-in on 18 December 2015 and that missing equipment was not identified until 18 December 2015. The applicant was clearly mistaken regarding the date he was notified. The applicant indicated that a platoon was sent out to look for the equipment and assist the Regiment in clearing the training areas. However, the applicant failed to identify in his statement which platoon he ordered out to the field, where they were to search, what their instructions were, or when the platoon was sent to the field. Additionally, neither the Troop XO, 1LT J, nor the property recipient holder, SPC L, could recall that a field search occurred. Of all personnel involved with this issue, they should have certainly been informed. Furthermore, an email sent on 15 December 2015 by SFC Y, the Regimental Gunner, indicates that the Regiment only had till the close of business on 16 December 2015 to clear the ranges and training areas. Exhibits C, D and H indicate that the applicant was again mistaken concerning the timeline and chain of events. Following the block leave period (19 December 2015 - 18 January 2016) SPC L informed the applicant that all TASC items were accounted for and would be turned in no later than 20 January 2016. c. The items in question were in fact lost. SPC L had direct responsibility over these items as the TASC representative for C/1/3CR. SPC L signed for 20 sets of vehicle MILES and 124 sets of individual MILES from TASC on 27 November 2015 for use by C/1/3CR's December Field Training Exercise. d. SPC L was culpable regarding the loss of the MILES equipment. SPC L displayed simple negligence in that he cleared and returned hand receipts without inventory, and failed to alert the chain of command to effect change. If SPC L had conducted a proper inventory, the items in question would have been identified as missing and the personnel responsible for those missing items would have also been identified. The evidence indicates that the turn-in was unorganized and that accountability was difficult to establish. Despite this mass chaos, SPC L managed to clear and return hand receipts. There is only one statement that of the applicant that suggested SPC L reported the missing equipment to the chain of command. However, the applicant's recollection of events was questionable given that none of the other evidence supports his claim or proposed timeline. In fact, the evidence indicates that SPC L did not tell anyone about the missing equipment and that it was TASC who reported the equipment as missing. This further suggests that SPC L either intended to hide the loss from TASC in hopes of clearing his hand receipt or that he did not know the equipment was missing because he failed to conduct a proper inventory prior to clearing the platoon hand receipts. Regardless of his intentions, SPC L demonstrated simple negligence since a reasonable person would have conducted an inventory to identify missing equipment, and report the deficiency along with those responsible to the chain of command. e. SPC L's failure to properly conduct an inventory before accepting, clearing, and returning platoon hand receipts was proximate cause of the loss. f. The applicant had Command Responsibility inherent in his position as Troop Commander, but more appropriately MAJ D found that the applicant aIso had Supervisory Responsibility in that he signed the signature card that appointed SPC L as the C/1/3CR TAS-C representative. g. The applicant was culpable regarding the loss of the MILES equipment. The applicant displayed simple negligence in that he did not adhere to the AOM Recovery SOP nor provide the Troop with any guidance regarding the turn-in of MILES equipment. If the applicant had adhered to the SOP, the Troop would have conducted MILES turn-in and reconciliation on 14 December 2016 and not on 18 December 2016. Furthermore, the applicant failed to provide proper guidance or direction to the Troop regarding the turn-in of MILES resulting in a disorganized turn-in. The applicant's failure to adhere to published standards or provide turn-in guidance was in direct contradiction to the actions a senior commander under similar circumstances would have done. His inaction was simple negligence. h. The applicant's appointment of SPC L as the TASC representative for C/1/3CR, failure to provide direction with regards to MILES turn-in, and failure to follow published guidance contributed to the loss of the equipment. SPC L proved his inability to properly manage MILES equipment when he lost a MILES laser which the applicant later charged him for. The applicant should have appointed another TASC representative or at least been more involved with MlLES tum-in by providing guidance, direction and command emphasis. Furthermore, if the AOM Recovery SOP was adhered to, the Troop would have identified the loss on 14 December 2015 instead of losing four days to react. 23. MAJ D recommended: a. The full amount of the Government's loss was $3,868.58. In accordance with AR 735-5, Appendix P B-2, items made of perishable materials such as, but not limited to plastic, canvas and rubber are depreciated by 25%. Thus the actual loss to the government was $2,901.44. b. After relieving MAJ F as the FLO, MAJ D reviewed the rebuttal from the applicant and SPC L and his recommendation was that the applicant and SPC L be held financially liable for the full amount of the Government's actual loss of $2901.44. In accordance with DA PAM 735-5, Figure 5-2, the applicant is financially liable for $2,058.69, and SPC L is financially liable for $842.75. These calculations were determined by the following formulas: * the applicant's base pay at the time of less was: $5,818.80 * SPC L's base pay at the time of the loss was: $2,382.00 * total base pay is $8,200.00, derived from adding Base Pay of all personnel * financially liable * (Base Pay/fatal Base Pay) x 2901.44 = Liable amount 24. An MFR, dated 27 July 2016, documents a telephonic notification of liability recommendation increase for FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. SPC C spoke with the applicant and notified him the amount he was due to be charged changed from $1,372.46 to $2,058.69. This change was due to the difference between his base pay and the base pay of SPC L at the time of loss in accordance with DA PAM 735-5 and AR 735-5 and due to a new FLO being appointed. The applicant acknowledged the change and stated he would be submitting a request for reconsideration to the approving authority. 25. On 28 July 2016 a legal review was conducted by the Brigade Judge Advocate. a. FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX was reviewed and the investigation's findings and recommendations were found to be legally sufficient. b. Both the applicant and SPC L contributed to the loss of the MILES equipment. SPC L, who had direct responsibility for these items as the TASC representative was negligent in his failure to conduct a proper inventory and his failure to notify the chain of command as to the loss. The applicant had command and supervisory responsibility but was negligent in his failure to follow proper TTPs as described in the AOM SOP as well as his failure to provide proper guidance to the Troop in regards to the turn-in of the MILES equipment. Thus, the FLO's recommendation to hold both of them financially liable is consistent with the findings. c. Recommend the applicant and SPC L be held responsible for full amount of Government loss of $2,901.44. The applicant to be held liable for $2,058.69 and SPC L for $842.75. 26. On 29 July 2016, the approving authority, LTC D, approved the findings and recommendation of the FLO. 27. On 11 August 2016, the applicant submitted a request for reconsideration of the finding of financial liability in FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. a. The applicant stated the results of the investigation conducted show that there is a lack of sufficient evidence to hold him financially liable. There are a number of procedural deficiencies with the investigation that have cumulatively resulted in an insufficient investigation and assessment of liability. Additionally, the FLO has failed to establish the requisite elements to impose liability. b. AR 735-5, paragraph 13-31e establishes that "evidence provided a persons who are responsible for property listed on a DD Form 200 may be self-serving." Therefore, the FLO is required to confirm, through the use of independent statements as well as other evidence of reliability ... to indicate that such statements were actually factual." Even if the FLO had no personal interest in the outcome of the investigation, the lack of an investigation to substantiate the findings of the Commander's Inquiry conducted by CPT (formerly 1LT) J renders the FLIPL insufficient to establish financial liability. This is especially consequential with regard to the present FLIPL because the IO of the Commander's Inquiry was one of two individuals that had access to the areas where the missing items were stored in addition to being personally attached to the missing items and exercising physical control over the missing items. CPT J was responsible for the administration and logistics of the Troop, consisting of the headquarters section, mortar section, and three infantry platoons and therefore his investigation should not have been at all related to this FLIPL. Perhaps most crucial to the inadequacy of the investigation is the point that CPT J had actually informed the applicant that the TCS account was clear prior to the Change of Command. The fact that an independent FLO was appointed is only valid if further investigation takes place, rather than a review of a Commander's Inquiry that is inherently flawed. c. There have been numerous discrepancies regarding the amount of liability required following this investigation. The price of FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX has change significantly since the beginning of the FLIPL. On 9 July 2016, the applicant was notified by LTC D (Squadron Commander) that he was held liable for the amount of $967.00. On 14 July 2016, he was notified by SPC C the price of the FLIPL was changed to $1,372.46. On 27 July 2016, SPC C notified him the price changed to $2,058.69 due to base pay between SPC L and the applicant. The large discrepancy in pay will affect his family negatively and will cause great financial hardship losing a half months pay at one time. If he is not absolved of all debt he should only be held liable for what the $967.00 LTC D stated and be allowed to pay it back over a 6-month period. d. The applicant states he took all reasonable measures available to ensure government accountability was properly accounted for and stored. Each sub-hand receipt holder was counseled and held to a high standard regarding accountability of property. He also conducted appropriate inventories as required to maintain accountability. Given the feasibility of maintaining close supervision of over property as outlined above, he did what was reasonably feasible to maintain accountability. As the date of loss is listed as 20 April 2016, the date following the Change of Command, the FLO has further failed to establish that he could have acted differently to ensure command or that his actions were the proximate cause of the loss. e. AR 735-5 para 13-29c holds that the facts must clearly establish that his "acts or omissions were the cause, that, in a natural and continuous sequence, unbroken by a new cause, produced the (loss)." An "intervening cause" is a "new and independent force which breaks the causal connection between the original doing and the outcome." f. As explained above, it was reasonable, given the feasibility of maintaining close supervision of equipment, to rely on CPT J and SPC L, who each presented to the applicant that accountability was maintained. The presentation of accountability was certainly an intervening cause which breaks the chain of events that would point to action on his part. Therefore, it was not reasonably foreseeable that any action or inaction on his part could have resulted in any different outcome and, without a reasonably foreseeable outcome, proximate cause has likewise not been established. g. In light of the circumstances and facts stated above, the applicant respectfully requests that he not be held financially liable and that the FLIPL be removed from his record. 28. On 4 September 2016, LTC D, Approving Authority, provided the applicant a response to his request for reconsideration of FLIPL Number WG2LAAt-XX-XXX-XXXXX-XXX. Upon review of the applicant's request for reconsideration, LTC D concluded his determination of liability remained. a. Both FLO (MAJ F and MAJ D) received in-briefs from Regimental Legal and had no personal interest in the outcome of the investigation. They both investigated the loss of the equipment in accordance with the parameters identified by legal and utilized statements from personnel involved with the loss to determine their findings. It was their duty to determine if any "statements or evidence provided by persons may be self-serving," and provide a non-biased recommendation of liability. The applicant selected CPT J to conduct the CI. If he was not satisfied with his findings, the applicant should have assigned another investigating officer or requested external assistance. Both FLOs determined CPT J's statements to not be self-serving. b. The applicant was liable because his actions constituted simple negligence. Per DA PAM 735, paragraph 2-1c, the reasonableness of his actions did not coincide with the expectations of a Troop Commander with his age, experience, qualifications, type of responsibility (command and supervisory responsibility), the nature of the activity, and the extent that supervision could have influenced the situation. The applicant failed to follow published guidance in accordance with the 3CR AOM Recovery SOP. The applicant's failure to act contributed to the loss of the equipment. c. Upon a legal review, it was determined that MAJ F did not properly calculate financial liability in accordance with AR 735-5, Table 12-4 (Method of computing collective and individual financial liability when more than one person is charged). MAJ D was specifically directed by legal counsel to calculate financial liability in accordance with AR 735-5, Table 12-4. The financial liability was subsequently recalculated in order to fulfill a legally sufficient review. d. The legal review of the FLIPL is consistent with the FLO's findings in that the applicant had command and supervisory responsibility and was negligent in his failure to follow the 3CR AOM SOP and provide proper guidance for turn-in procedures. LTC D concurred with the legal review recommendation to find the applicant liable for his portion of the actual loss to the government in the amount of $2,058.69. This amount is consistent with the parameters outlining collective liability for losses in accordance with AR 735-5. REFERENCES: 1. AR 735-5 provides basic policies and procedures for accounting for U.S. Army property and accounting for lost, damaged, or destroyed (LDD) U.S. Army property. a. b. Paragraph 13-29 (Financial liability officer's responsibilities) states a financial liability officer’s responsibility is to determine the cause and value of the LDD of Government property listed on the financial liability investigation of property loss, 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. However, before beginning the investigation the financial liability officer 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 LDD of Government property if they were negligent or have committed willful misconduct, and their negligence or willful misconduct is the proximate cause of that LDD. c. Paragraph 13-29b (Culpability) states: (1) Before a person can be held financially liable, the facts must show that he or she, through negligence or willful misconduct, violated a particular duty involving the care of the property. (2) 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 LDD of Government property. (3) 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. d. Paragraph 13-29c (Proximate cause) states that 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 LDD. 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 LDD, and without which the LDD would not have occurred. e. Paragraph 13-31e states that statements and other evidence provided by persons who were responsible for the property listed on a financial liability investigation of property loss may be self-serving. The financial liability officer must confirm, through the use of other independent statements and evidence gathered in the financial liability investigation of property loss, if available, as well as any other evidence of reliability that the financial liability officer considers relevant to indicate that such statements and evidence are factual. 2. DA PAM 735-5, in effect at the time, provided guidance to individuals appointed as financial liability officers on conducting and documenting financial liability investigations of property loss. a. Paragraph 2-1c stated before a person could be held financially liable, the findings must show that he or she, through negligence or willful misconduct, violated a particular duty involving the care for the property. Whether the person’s actions or omissions constitute negligence depends on the circumstances of each case. Negligence under some circumstances may not reflect negligence under other circumstances. The following factors were to be considered 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(s) had toward the property * the type and nature of the property * the nature, complexity, level of danger, or urgency of the ongoing activity at the time of the loss * the adequacy of supervisory measures or guidance for property control * the feasibility of maintaining close supervision over the property given the complexity of the organization or activity supervised * the extent supervision could have influenced the situation considering pressing duties or the lack of qualified assistants b. According to Figure 5-2 the following is a sample method of computing charges of financial liability: DISCUSSION: 1. Both FLOs received in-briefs from Regimental Legal and had no personal interest in the outcome of the investigation. They both investigated the loss of the equipment in accordance with the parameters identified by legal and utilized statements from personnel involved with the loss to determine their findings. It was their duty to determine if any "statements or evidence provided by persons may be self-serving," and provide a non-biased recommendation of liability. 2. SFC L stated his platoon executed MILES turn-in on 18 December 2015. He also stated the process for turn-in was unorganized due to last minute changes in the Troops return from field training exercise and departure for block leave. The CI conducted on 20 April 2016 indicated the equipment was found to be missing on 18 December 2015. In his sworn statement, dated 9 May 2016, CPT J stated Crazyhorse Troop turned in all MILES equipment to SPC L on 18 December 2015. 3. The applicant had indicated he was informed of the missing equipment on 17 December 2015. MAJ D, stated the applicant's recollection of events was questionable given that none of the other evidence supports his claim or proposed timeline. 4. The applicant had Command Responsibility inherent in his position as Troop Commander, but more appropriately the applicant aIso had Supervisory Responsibility in that he signed the signature card that appointed SPC L as the C/1/3CR TASC representative. 5. The applicant was liable because his actions constitute simple negligence. The reasonableness of his actions did not coincide with the expectations of a Troop Commander with his age, experience, qualifications, type of responsibility (command and supervisory responsibility), the nature of the activity, and the extent that supervision could have influenced the situation. If the applicant had adhered to the AOM Recovery SOP, the Troop would have conducted MILES turn-in and reconciliation on 14 December 2016 and not on 18 December 2016. 6. The applicant's failure to adhere to published standards or provide turn-in guidance was in direct contradiction to the actions a senior commander under similar circumstances would have done. His inaction was simple negligence. 7. The actual loss to the government was $2,901.44. Based on the method of computing financial liability provided in AR 735-5, Table 12-4 and DA PAM 735-5, Figure 5-2 the applicant is financially liable for $2,058.69. The applicant expressed concern over losing such an amount all at one time. Pro-rated payment of a debt can be requested through the applicant's chain of command. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170014638 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170014638 21 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2