Challenging FLIPLs When Found Liable for Government Property Damage or Loss

By Cadet Claire Hutchison, Fort Bliss Legal Assistance Office   

Financial Liability Investigation of Property Loss is an investigation conducted to recommend service members and/or civilian employees for financial liability when government property is lost, damaged, or destroyed.  

FLIPLs are governed under Army Regulation 735-5.  There are multiple avenues in which an individual who is being assessed as being financially liable (the “Respondent”) can challenge the FLIPL findings after initial notification from the Financial Liability Officer.  The FLO is the individual acting as the Investigation Officer for the property loss/damage.

What elements need to be proven for financial liability to be placed on the SM?

For financial liability to be placed on an individual, four elements must be established by the FLO.  First and foremost, the property must be lost, damaged or destroyed.  If the property was found or scheduled to be destroyed by the Army, the individual may not be held financially liable for that item.  Secondly, it must be proven that the individual was responsible for the care of the property in question.  While an individual may have had responsibility over an item, it does not automatically determine that the individual should be held financially liable.  Thirdly, the FLO must establish negligence or willful misconduct from the individual in their duty of care for the property.  In simpler terms, it must be proven that the individual failed to conduct care for the item in a reasonable manner or committed an intentional act or omission that resulted in harm to, or loss of, the property.  Finally, a proximate cause must be established, meaning the negligence or willful misconduct committed by the individual was the predominant cause for the destruction, damage, or loss of property.

How does the FLO determine the cost of the item lost and how much an individual must pay?

The value of the property lost is assessed using its current fair market value and the depreciation of the value of the property over time. Normally, the value assessed will not exceed one month’s base pay of the individual held liable.  The amount determined as an individual’s base pay is their base pay at the time of the property loss, not at the time of the FLIPL.

What does the rebuttal process look like?

The rebuttal process provides an opportunity to refute or challenge the findings of the investigation.  The Respondent should collect evidence, information, and any documentation that may aid their rebuttal.  In their rebuttal, they can submit evidence that may not have been included in the original investigation and write a rebuttal statement including the facts of the situation and the reasoning of why they should not be held liable.

The Respondent can start the rebuttal process once they have received the FLIPL from the FLO.  When the documents are hand-delivered, the Respondent has 7 days to prepare and submit their rebuttal.  When the documents of the FLIPL are mailed or emailed, the timeframe extends to 15 days.  Due to the short amount of time allotted for rebuttals, it is important to seek out legal assistance as soon as possible once the FLIPL has been received.  The Respondent may request an extension to respond when necessary.

In the rebuttal, the Respondent may request that no financial liability be placed on them and may also request an extension of the collection if held financially liable.  The extension would allow for the sum owed to be collected over multiple pay periods, to lessen the immediate financial burden.

Once submitted, the rebuttal along with the FLIPL report will undergo a legal review.  If it is determined that there is not a sufficient legal basis to establish financial liability, then the Respondent will not be held financially responsible for that item.  If there is strong enough legal basis, all FLIPL documentation collected thus far will be sent to the approving authority for their determination.  Again, if the Respondent is found not financially liable, they will not have to pay for the item. However, if the approving authority determines that the Respondent is liable, the Respondent will receive a written notification of liability.

What are the Respondent’s options if, after a rebuttal and legal review, they are still found financially liable?

The next step is to submit a request for reconsideration.  It is not guaranteed that this request will be accepted.  To request reconsideration, the Respondent must claim that there was a legal error during the FLIPL process.  Along with this request, the Respondent may submit additional new evidence to support their case.  The reconsideration request goes back to the approving authority, who will make the determination whether the Respondent should still be held liable given the current evidence.  If the approving authority holds to their original decision, the case can be brought to a higher appeal authority (the next higher commander above the approving authority), who will conduct a review and make a final determination on liability.

What are the Respondent’s options if, after a request for reconsideration, they still are found financially liable?

At this point in the FLIPL journey, there is one avenue left, which is the Army Board of Corrections for Military Records.  The Respondent may submit their entire FLIPL packet to the Board for a final review.  However, the odds at this stage of having financial liability removed are low.  The ABCMR will review and rule on the FLIPL.  It may take a long time for the Board to give a ruling.

How can the Respondent lessen the financial burden post investigation?

Enlisted soldiers may request to not pay the cost prescribed by the FLIPL in cases of financial hardship.  To do so, DA Form 3508, an application for remission or cancellation of debt, must be submitted to their commander.

What can legal assistance do to help?

The Legal Assistance Office can assist Respondent’s in preparing their FLIPL rebuttals. 

To speak with an attorney in the Fort Bliss Legal Assistance Office on this or any other topic, please schedule an appointment by emailing usarmy.bliss.hqda-otjag.mesg.bliss-legal-assistance-office@army.mil any time, or calling (915) 568-7141 during LAO business hours.