IN THE CASE OF: BOARD DATE: 13 January 2022 DOCKET NUMBER: AR20210009767 APPLICANT REQUESTS: correction of his military records to show that he was not liable for the loss of government property in 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) * Congressional Letter * DD Form 200 (Financial Liability Investigation of Property Loss (FLIPL)) * FLIPL Investigation Letter * FLIPL Rebuttal Statement * FLIPL Checklist and Tracking Document * Primary Hand Receipt * Commander’s Memorandum-Cyclic * DA Form 2823’s (Sworn Statement) * Commander’s Inquiry of Loss * Letter of Lateness FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 seeking redress after financial liability was unjustly assessed by the reviewing authority. When taking into account the standard Army Regulation (AR) 735-5 (Property Accountability Policies), paragraph 13-29 (Financial liability officer’s responsibilities), no evidence proves that negligence was committed on his part to cause the loss of the equipment. The alternate accusation of his liability in the loss of the equipment due to proximate cause is not substantiated by any evidence either. The decision was made solely on the basis that he was the commander at the time of the loss of the equipment and did not take into consideration AR 735-5. The various factors of assuming missing equipment that was not properly cataloged, assuming equipment that was still in use for patrols by the previous unit, and the urgency required for his unit to assume the equipment and continue executing patrols created a situation where the piece of equipment that was lost had not been properly handed over from the previous unit to his unit. The decision to find himself and his executive officer liable for the loss of equipment due to proximate cause was entirely based on their position and had nothing to do with any actions or lack thereof that would have contributed to the loss of equipment 3. Review of the applicant’s service records shows: a. He was appointed as a Reserve Commissioned Officer on 10 May 2013. He entered active duty on 7 November 2013. d. His Officer Record Brief shows he served in Afghanistan from 12 February 2020 to 6 September 2020. 4. The applicant provides a Commander’s Memorandum-Cyclic, digitally signed by the applicant on 23 April 2020, which shows property indicated had been inventoried and no discrepancies were noted. He also provides a Primary Hand Receipt, dated 1 May 2020, shows an on-hand quantity of 3 AN/PAS-23s (Thermal Imaging Device). 5. A Commander's Inquiry, dated 7 July 2020, (the applicant was the commander at the time) into the loss of the B Troop PAS-23 (Thermal Weapon Sight) found that SGT C__ was primarily responsible for the loss of the PAS-23 due to a lack of supply discipline by not conducting an initial inventory as the supply noncommissioned officer in charge when she arrived to the base and not enforcing the Troop CSDP (Command Supply Discipline Program). a. On 14 July 2020, a DD Form 200 was initiated, and three AN/PAS-23’s (Thermal Imaging Device) were identified for turn in during the B Troop, 3rd Battalion, 71st Cavalry Regiment, divestiture scrub. The Troop armorer turned in a case with AN/PAS- 23s to the supply team in order to facilitate the turn-in process. During the turn-in process the supply team discovered one AN/PAS-23 was not in the case and unaccounted for. An extensive effort was made to locate the missing AN/PAS-23 through the Troop's foot print without success. (1) Actions taken to correct the circumstances were a lock and clasp would be mounted on the supply room entrance door as an extra security measure. Property adjustment documents would be issued to sub-hand receipt holders for every property transaction. Sub-hand receipts would be signed every month to maintain property accountability and in order to prevent future losses. (2) In block 12 (Responsible Officer), the applicant checked there was no negligence or abuse evident/suspected. It was unclear when the item went missing. Since the Troop units responsible for the equipment were not present for the initial change of command, it could have gone missing as early as March 2020. He did not believe there was any negligence or abuse in the loss of this equipment. (3) In block 13b (Appointing Authority), the battalion commander disapproved the applicant's recommendation and appointed a Financial Liability Officer. He found the proximate cause of the loss of this item was a combination of failures of the applicant to reasonably enforce his command responsibility and First Lieutenant (1LT) D__’s responsibility to enforce his supervisory responsibility and Specialist (SPC) R__’s failure to exercise his custodial responsibility to directly accounting for the PAS-23. There is a reasonable suspicion that the item went missing during the period of time in which two units shared a conex in which the item was located on or about 10-18 March. Had SPC M__ inventoried the arms room equipment when he arrived in theater on or about 18 March, he would have identified if the item was present. The applicant was found partially liable. He had command responsibility for the equipment and failed to ensure it was sub-hand receipted to a sub-hand receipt holder. He inventoried all equipment, including missing equipment, in March. He failed to ensure that physical security measures and a key control system were in place when the equipment was located in a container that was accessible by B Troop and the previous unit. The applicant did not provide enough Command oversight of his Troop’s CSDP leading to the loss of accountability for the PAS-23 for almost 3 months before it was identified as missing. (4) In block 14b (Approving Authority), following a legal review, on 21 August 2020 the brigade commander approved the recommendation and concurred with the battalion commander to hold the Soldiers financially liable for the loss: the applicant $800.00, 1LT D__$100.00, and SPC M__ $50.00. (5) In block 15 (Financial Liability Officer), the investigating officer stated he found the applicant did not provide enough Command oversight of his Troop’s CSDP leading to the loss of accountability for the PAS-23 for almost three months before it was identified as missing. The applicant and 1LT D__ insisted that the troop’s policy was that sub-hand receipt holders conduct a monthly inventory of equipment they are signed for, but there was no documentation of this policy other than verbal guidance from 1LT D__. The applicant and 1LT D__ were found liable, and B Troop leadership did not take action to correct property deficiencies that were present when they assumed control of the mission at the base. Recommendations were for: (a) Key and lock control: B Troop needed to establish a formal key and lock control program. This would ensure complete accountability for all keys in the Troop footprint and provide a better control for individuals with access to areas with sensitive items. (b) CSDP: All B Troop sub hand receipt holders should receive a formal counseling from the Troop Commander or executive officer on the Troops CSDP and the requirement s of hand receipt holders including conducting monthly inventories of their hand receipts. (c) The applicant’s financial liability was $1,014.78 and 1LT D__’s financial liability was $830.27. b. A Letter of Lateness, dated 15 July 2020, from the applicant the company commander within Bravo Troop, 3rd Squadron, 71st Cavalry Regiment, 1st Brigade Combat Team, 10th Mountain division, Afghanistan stated, that the Financial Liability Investigation of Property Loss was submitted late due to extensive time used to conduct causative research and additional administrative adjustments needed on the FLIPL. c. On 23 July 2020, an officer assigned to 3rd Squadron, 71st Cavalry Regiment, 1st brigade Combat Team, 10th Mountain Division (Light Infantry) was appointed as the investigating officer (IO). d. On 29 July 2020, the Investigating Officer’s findings and recommendations regarding the FLIPL shows, he found the applicant and 1LT D__ liable for the loss of the PAS-23’s. The applicant did not provide enough command oversight of his Troop CSDP leading to the loss of accountability for the PAS-23 for almost three months before it was identified as missing. The applicant was liable for the loss of the PAS-23 due to simple negligence as a result of not enforcing proper command responsibility for property in B Troop, 3-71 Cavalry. 1LT D__ was liable to a lesser extent of simple negligence for not verifying with B Troop leaders and sub hand receipt holders that monthly inventories were taking place. e. On 5 August 2020, by letter, the applicant was notified, that he was being recommended for charges of financial liability to the U. S. Government in the amount of $800.00 for loss of government property investigated. f. On 7 August 2020, in his rebuttal statement the applicant stated he arrived in March on or about the 4th. One of the six PAS-23s was identified missing when Sergeant C__ collected them to turn in for divestiture in July 2020. The applicant last identified the items during his inventories in March 2020. He conducted Troop inventories from the beginning of March 2020 to 15 March 2020. Six PAS-23 were identified during these inventories. In effect, he states another unit had shared access to the containing until their departure, due to mission requirements. The inventories and handing over of equipment took place during this operational tempo. The applicant stated to find him liable for this damage would be to substitute the negligence and proximate cause standard articulated in AR 735-5, paragraph 13, is not culpable for the allegedly lost item, in order for a person found to have personal responsibility for the property to be found liable, he must fail to “exercise reasonable and prudent actions to properly use, care for, and safeguard all government property in his or her physical possession.” Pursuant to AR 735-5, paragraph 13-29 (c) “the persons act or omissions were the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the LDDT (Loss, Damage, Destruction, or Theft), and without which the LDDT would not have occurred.” To find him liable for this damage would be to substitute the negligence and proximate cause standard articulated in AR 735-5, with a strict liability standard.” He requested that he not be held liable for the loss on the grounds that he was not responsible for the items, he did not engage in negligent or willful misconduct, and he was not the proximate cause of the incident. g. A screen shot of DMA customer units, shows the PAS-23 standard price as $9,225.27. 6. On 8 July 2021, the Army G-4 reviewed this case and rendered an advisory opinion. An advisory official stated, regarding an application for relief of financial liability in regards to the FLIPL initiated against the applicant, was returned with the recommendation that the financial liability assessed by sustained as recommended by the approving authority for this FLIPL. After a thorough review, G-4 concluded that the FLIPL was conducted in accordance with AR 735-5 and the recommendation to hold the applicant liable should be upheld. In accordance with AR 735-5, 2-8, he as the company commander did not fulfill his “command responsibility” of ensuring proper care, custody, safekeeping, and disposition of the equipment noted. 7. On 15 July 2021, by letter, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional documents. He did not respond. 8. 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 CSDP, 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. 9. Army Regulation 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 U.S. 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. 10. Chapter 13 of Army Regulation 735-5 details the report of survey process and states: a. individuals may be held financially liable for the loss, damage, or destruction 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, damage, or destruction. b. when negligence or willful misconduct are shown to be the proximate cause for a loss, an amount equal to 1 month's basic pay at the time of the loss, or the actual amount of the loss to the Government, whichever is less, may be assessed. c. when more than one person's negligent act or acts of willful misconduct are the proximate cause for the loss, those persons should be recommended for assessment of collective financial liability. The term "collective financial liability" is used when more than one individual is found financially liable for a loss. 11. The Consolidated Glossary for Army Regulation 735-5 defines negligence as 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. Supervisory responsibility is the obligation of a supervisor to ensure that all Government property issued to, or used by, his or her subordinates is properly used and cared for, and that proper custody and safekeeping of the property are provided. It is inherent in all supervisory positions and is not contingent upon signed receipts or responsibility statements. Responsibilities include: providing proper guidance and direction; enforcing all security, safety, and accounting requirements; and maintaining a supervisory climate that will facilitate and ensure the proper care and use of Government property. Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss or damage would not have occurred. 12. Army Regulation 710-2 (Supply Policy Below the National Level), prescribes policy for supply operations below the national level. Appendix B implements the CSDP. It states the CSDP is a commander's program and that commanders will implement the CSDP by using their existing resources. It further provides program guidance that includes enforcement of supply discipline methods, administrative measures, disciplinary measures, reaction to incidents of non-financial liability, and ensuring supply discipline and management controls. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, a majority of the Board found relief is not warranted. 2. A majority of the Board found insufficient evidence indicating that the applicant should not have shared some of the liability for the lost equipment. A majority of the Board found that the investigation into the loss of equipment was thorough and identified insufficiencies in the unit's CSDP that were ultimately the applicant's responsibility, as noted in the advisory opinion. Based on a preponderance of evidence, the Board determined the evidence does not support changing the FLIPL determination as it relates to the applicant. 3. The member in the minority noted the operational contingencies identified by the applicant, to include the fact that the unit was continuing to mount patrols while also attempting to accomplish the necessary administrative work to transition into the role vacated by the previous unit, which had already left theater. Given the complexities of the handover, the member in the minority determined the applicant should not have been held liable for the loss of a piece of equipment. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :XX : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX : :XX 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 735-5 (Property Accountability Policies) 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 U.S. 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. 3. The Consolidated Glossary for Army Regulation 735-5 defines negligence as 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. Supervisory responsibility is the obligation of a supervisor to ensure that all Government property issued to, or used by, his or her subordinates is properly used and cared for, and that proper custody and safekeeping of the property are provided. It is inherent in all supervisory positions and is not contingent upon signed receipts or responsibility statements. Responsibilities include: providing proper guidance and direction; enforcing all security, safety, and accounting requirements; and maintaining a supervisory climate that will facilitate and ensure the proper care and use of Government property. Proximate cause is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produced loss or damage and, without which, loss or damage would not have occurred. 4. AR 710-2 prescribes policy for supply operations below the national level. Appendix B implements the CSDP. It states the CSDP is a commander's program and that commanders will implement the CSDP by using their existing resources. It further provides program guidance that includes enforcement of supply discipline methods, administrative measures, disciplinary measures, reaction to incidents of non-financial liability, and ensuring supply discipline and management controls. 5. AR 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 CSDP, 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) AR20210009767 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1