IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120009001 


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 remission of a debt recouped from her in the amount of $4,640.70.

2.  The applicant states:

	a.  She repaid this debt in 2008 prior to leaving Germany.  After departing Germany, she noticed that the bottom of her Defense Finance and Accounting Service (DFAS) Leave and Earnings Statement (LES) listed the security deposit as a past debt.  Since no attempts had been made to collect the debt, she did not make any attempt to resolve the issue until she was assigned to Arlington, VA, in June 2010.

	b.  On 6 December 2010, she attempted to resolve the issue through a pay inquiry by email.  From the pay inquiry, finance began recouping the debt despite the fact that she paid the funds directly to the finance cash cage and cleared Wiesbaden in July 2008.  In January 2011, she spoke to the head of the finance office in Wiesbaden who told her that without the cash cage voucher there was no proof to show she had repaid the debt.  On 12 January 2011, she was told there was no documentation to show she ever borrowed the money let alone documentation that she had paid it back.  The Chief of Disbursing Operations, Kaiserslautern, Germany, stated they queried all systems and nothing came up under the applicant's name and she should contact the head of the finance office in Wiesbaden or her supervisor.  Her efforts to receive assistance from the supervisor proved fruitless.


3.  The applicant provides:

* A rental agreement, dated 14 June 2007
* DA Form 2142 (Pay Inquiry), dated 20 June 2007
* DA Form 4187 (Personnel Action), dated 20 June 2007
* A termination notice, 11 June 2008
* Three DD Forms 2367 (Individual Overseas Housing Allowance (OHA) Report), dated 20 June 2007, 29 June 2007, and 11 July 2008
* A printed page titled Bill of Utilities, dated 10 July 2008
* A receipt, dated 10 July 2008
* A bank receipt, dated 14 July 2008
* DA Form 137-E (Unit/Installation Clearance Record), dated 14 July 2007
* Nine pages of email, dated from 6 December 2010 to 29 March 2011
* An affidavit, dated 25 July 2011
* DA Form 1559 (Inspector General Action Request), dated 25 July 2011
* A letter, dated 29 August 2011
* DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 17 August 2011
* DA Form 2823 (Sworn Statement), 19 August 2011
* Twelve DFAS Forms 702 (DFAS Military LES), dated from 30 September 2010 to 31 August 2011
* Three memoranda, dated 17 August 2011, 15 December 2011, and 19 March 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Judge Advocate General’s Corps active duty captain in the Regular Army who was stationed in Wiesbaden, Germany, in June 2007.  She was promoted to the rank of major on 29 June 2011.

2.  On 14 June 2007, she signed a lease for an off-post residence in Germany that required a security deposit of 3,300 Euros.  On 20 June 2007, she submitted a request to DFAS for an advance of her OHA in the amount of 5,976 Euros to cover the first month's rent and security deposit.  The first month's rent was repaid over the course of the year by a monthly allotment with the security deposit to be repaid to finance prior to departing Germany.

3.  The applicant states that:

	a.  On 10 July 2008, she met with her landlord for a final inspection to clear her off-post residence and received 3,100 Euros of the security deposit back from her landlord.  On 11 July 2008, the finance office cash cage was not open so she deposited the Euros into her bank account.

	b.  On 14 July 2008, she withdrew 3,300 Euros from her bank and went to the finance cash cage and provided the money to the sergeant working there.  She asked him to stamp her clearing papers but he said she needed to take the paperwork he provided to the finance office and they would clear her.  She turned the paperwork in to the finance office and her DA Form 137-E was stamped to show she cleared finance.  She asked if she needed to retain a copy of the paperwork [showing she paid the 3,300 Euros] but was told all she needed was the stamped DA Form 137-E as proof of settlement with finance.

	c.  On 14 July 2008, after she cleared finance, she received the final clearance on her clearance papers and she subsequently departed Germany.

4.  The applicant provides a DA Form 137-E, dated 14 July 2008, that is blank on the line where a finance official would date and sign the form to show the individual cleared finance.  This form was stamped with a "final cleared" stamp by the Wiesbaden Central Clearance Office on 14 July 2008.

5.  The applicant provides her LES's from September 2010 through August 2011 wherein it shows DFAS began collecting $386.72 per month in September 2010 for repayment of an advance debt.  The advance debt balance was shown as $4,253.98 in September 2010 and $0.06 in August 2011.

6.  On 17 August 2011, she submitted an application for remission or cancellation of indebtedness through her immediate commander to the U.S. Army Human Resources Command (HRC).

7.  On 15 December 2011, after reviewing the applicant's packet requesting remission or cancellation of a debt, her commander recommended approval of the applicant's request in the amount of $4,640.70.  She (the commander) stated remission would serve the best interests of the U.S. Government since the applicant provided sufficient evidence to show the government has been unjustly enriched at the applicant's expense.  The only document the applicant has not been able to produce was the finance cash cage voucher.  However, her ability to produce the original receipt for 3,300 Euros dated the day she cleared Germany supports her sworn statement that she did return the OHA security deposit.

8.  On 19 March 2012, an official from the Chief, Special Actions Branch, U.S. Army HRC, denied the applicant's request for remission of $4,640.70.  The 


official stated a review of the applicant's request determined no grounds existed to remit or cancel the debt based on hardship or injustice in accordance with the provisions of Army Regulation 600-4 (Remission or Cancellation of Indebtedness).

9.  Army Regulation 600-4 outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.  It states, in pertinent part, applications for remission or cancellation of indebtedness must be based on injustice, hardship, or both.  The Army may remit or cancel a Soldier's debt arising from payments made in error, payments made in excess of an allowance on behalf of a Soldier, or debts incurred while serving on active duty.  To determine injustice the application must contain evidence that the applicant did not know and could not have known of the error and/or the applicant inquired of a proper authority and was told the payment was correct.  To determine injustice or hardship HRC must consider the Soldier's awareness of policy and procedures, military occupational specialty, rank, years of service, and prior experience.  

DISCUSSION AND CONCLUSIONS:

The evidence of record confirms the applicant incurred a $4,640.70 debt in June 2007 to the U.S. Army for an advancement of her OHA.  There is no evidence and she has not provided sufficient evidence that shows she repaid this debt prior to leaving Germany in 2008 or after that date.  She does not have a receipt for the payment and the DA Form 137-E she provided does not show that she cleared the Wiesbaden finance office prior to her departure from Germany.  Notwithstanding the applicant's sincerity, in the absence of conclusive evidence such as a receipt that shows she repaid the debt prior to September 2010, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.



      ____________x___________
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20120009001



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ABCMR Record of Proceedings (cont)                                         AR20120009001



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