ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20180001413 APPLICANT REQUESTS: to be refunded money she paid towards a Financial Liability Investigation of Property Loss (FLIPL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * DD Form 200 (Financial Liability Investigation of Property Loss) x 2 * DA Form 2823 (Sworn Statement) x 2 * Memorandum for Combat Aviation Brigade Subject: Legal Review of FLIPL #WTS2FF-12-002 * Memorandum for Applicant Subject: FLIPL #WTS2FF 12-002 * DA Form 1559 (Inspector General Action Request) * Memorandum for Applicant Subject: FLIPL #WTS2FF 12-001 ($1,200.00) * Memorandum for Applicant Subject: FLIPL #WTS2FF 12-002 ($3,029.14) * Memorandum for Commander Subject: Request for reconsideration and response to FLIPL Investigations (WTS2FF 12-002 and WTS2FF 12-002) * Email Correspondence * Office of the Inspector General (IG) Letter * Congressional Correspondence * Congressional Letter * Defense Finance and Accounting Service (DFAS) Letter 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 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: * she was held responsible for two FLIPLs in the amount of $1,200.00 and $3,029.14 * she made payments towards the FLIPLs, which she was told she would be refunded $350.00 * her 2016 tax return was garnished in the amount of $1,022.43 * she is seeking her record be corrected with the credit bureau because she was told she would not be held liability for the FLIPLs * she is seeking a refund of $1,372.43 she previously paid * she believes she should have been charged one month’s pay $589.16 * she was not given an opportunity to submit a rebuttal statement * she was not give a FLIPL packet until after DFAS started to collect * the FLIPL packet was sent to an address the applicant never lived at and her middle initial was listed incorrectly on the packet mailed out * recommendations shows the applicant should not be held accountable for the FLIPLs 3. The applicant provides: a. Self-Authored Letter that details all the supporting documents and justification for her case. b. Two DD Forms 200 (Financial Liability Investigation of Property Loss) which describes the circumstances of lost equipment accounted from two different property books; the applicant states in box 12(a) that neither negligence nor abuse was evident or suspected. Additionally, in box 12(b) it is recommended that the applicant should not be held accountable for the missing/ misplaced items. c. Two DA Form 2823 (Sworn Statement) which state sworn statements and rebuttals on missing items which the applicant said she was denied her right to submit a rebuttal. d. Memorandum for Combat Aviation Brigade Subject: Legal Review of FLIPL #WTS2FF-12-002 stating the investigation was legally sufficient and evidence supports the findings. Legal review document further states, in item 3, that if the soldier is found liable for the losses in FLIPL WTS2FF-12-001 and WTS2FF-12- 002, they should not be charged more than one-month salary total because the FLIPLs arose from the same discovery of loss event. Her monthly pay was $589.16 so should never should have been charged more than $589.16. She was charged $1,200. e. Memorandum for Applicant Subject: FLIPL #WTS2FF 12-002 showing that the notifications that the applicant was required to receive under AR 735-5 were sent to the wrong address. The applicant states this was a careless clerical error that resulted in the applicant losing rights afforded to her under AR 735-5. She never resided at, nor stepped foot on the premises of the address listed, and her middle initial was incorrect. f. DA Form 1559 (Inspector General Action Request) was a request to the Inspector General to investigate after receiving a bill around 16 January 2016 from DFAS stating that the applicant owed $1,200. To this point, she had not received any information that she was found liable for these FLIPLs as the notifications were sent to the wrong address. The applicant was sent a bill by DFAS before ever being notified that she was being held liable and before she was able to exercise her rights under AR 735-5. g. Memorandum for Applicant Subject: FLIPL #WTS2FF 12-001 ($1,200.00) and Memorandum for Applicant Subject: FLIPL #WTS2FF 12-002 ($3,029.14) sent to the applicant with a correct address (assumed after the IG investigation); however her middle initial remained incorrect. h. Memorandum for Commander Subject: Request for reconsideration and response to FLIPL Investigations (WTS2FF 12-002 and WTS2FF 12-002). i. Email Correspondence Communication stating the investigating officer revised his findings, not holding the applicant liable and the debt with DFAS would be cancelled and the $350 the applicant paid would be returned to the applicant. j. Office of the Inspector General (IG) Letter that states that though the timeframe to request reconsideration had expired, it was still granted and conducted. The applicant states she submitted the complaint to the IG in the required timeframe and this shows how little attention was paid to her case. k. Congressional Correspondence from DFAS in response to the congressional inquiry which stated that the balance due is $856.89 yet only a few months later the applicant’s taxes were garnished for $1,022.43. l. Congressional Letter from the Department of the Army where the letter states that "she was not charged her full months pay;" which the applicant states is false since she was charged $1,200 and her one month pay was $589.16. m. Response to one of her FOIA requests in which the applicant states she was not provided information that she requested. n. Defense Finance and Accounting Service (DFAS) Letter stating that DFAS had garnished the applicant’s tax return in the amount of $1,022.43. 4. A review of the applicant’s records show: * 12 May 2007 - the applicant commissioned as an officer in the New York Army National Guard (NYARNG) as a Quartermaster/ Logistic Officer * 26 August 2011 - during a change of command inventory the applicant and another officer discovered missing items * 7 October 2011 - a FLIPL was done showing dollar amount of loss was $5,026.82 and recommended the applicant be held 64.5% liable for the dollar amount of loss * 15 August 2012 - a letter was sent to the applicant showing she was responsible for the FLIPL in the amount of $3,029.14 * 7 September 2012 - memorandum Subject: Legal Review of Financial Investigation of Property Loss shows the FLIPL investigation was done correctly and the applicant should be held liable but should not exceed one month salary cap * 7 September 2012 - the applicant was honorably discharged from NYARNG and transferred to the Individual Ready Reserve * 11 April 2013 - the applicant completed an IG Action Request showing she was aware a FLIPL was initiated on 26 August 2011, she submitted a statement to the investigating officer on 19 March 2012, she never heard anything again until she received a bill ono 16 January 2013 in the amount of $1,200.00 * 30 April 2013 - memorandum from 42nd Combat Aviation Brigade showing the applicant was responsible for $1,200.00 and $3,029.14 * May 2013 - the applicant submitted a letter to the commander of 42nd Combat Aviation Brigade showing she was not given the right to submit a request for reconsideration prior to DFAS collecting the amount associated with the FLIPLs * 16 September 2013 - the applicant was advised to reach out to her congress member to resolve the FLIPL because DFAS was not responding to the applicant’s inquires * 14 April 2015 - a letter from IG shows the applicant’s request for reconsideration was granted by IG; IG determined the applicant was responsible for the FLIPL because she was the commander at the time so she was accountable for the equipment in question and the proximate cause for the loss; the investigation was found legally sufficient by the NYS Judge Advocate office * the applicant submitted her request to her congressman * 27 September 2016 - DFAS sent a letter to the congressman showing the applicant still owed a remaining balance of $856.89; they received a DD Form 200 from her unit showing she was liable for the equipment did not have authority to cancel or reduce her debt 5. On 21 March 2019 an advisory opinion was completed by the Office of the Deputy Chief of Staff, G4 showing: * the request for relief of financial liability in regards to the FLIPL is recommended and that the financial liability assessed be reversed * it was concluded that the FLIPL was not conducted in accordance with Army Regulation 735-5 * the applicant was not notified she was being recommended for an assessment of financial liability by the investigating officer * memorandum was sent to the wrong address on multiple occasions * the applicant was found liable for two different FLIPLs when there was only one incident and she was charged twice which exceeded one month’s base pay * according to AR 735-5, when the lost, damaged, or destroyed property is on the property records of the same account and the same document register, prepare only one DD Form 200 * it was recommended the applicant be reimbursed all monies taken from her and corrections to her record 6. The applicant was provided a copy of this advisory opinion to provide her an opportunity to comment and/or submit a rebuttal. On 31 March 2019, the applicant stated she was satisfied with the advisory. The only thing she would like to request, in addition to being reimbursed all monies taken from her and correction of her records, is that her records also be corrected with any credit bureaus which it was reported to. This incident has negatively effected her credit rating for the past 6 years. 7. Army Regulation 735-5 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. It prescribes the accounting procedures to be used when Department of the Army property is discovered lost, damaged, or destroyed through causes other than fair wear and tear. It provides authorized methods to obtain relief from property responsibility and accountability. It also prescribes the Department of the Army policy on such losses and financial liability. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions and the advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board agreed relief is warranted, the debt should be cancelled, and she should be reimbursed for all monies already paid. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 cancelling the debt of her DD Form 200 (Financial Liability Investigation of Property Loss) and associated documents, and repaying her all monies applied to the debt. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Army Board for Correction of Military Records (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 735-5 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. It prescribes the accounting procedures to be used when Department of the Army property is discovered lost, damaged, or destroyed through causes other than fair wear and tear. It provides authorized methods to obtain relief from property responsibility and accountability. It also prescribes the Department of the Army policy on such losses and financial liability. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180001413 2 1