BOARD DATE: February 16, 2017 DOCKET NUMBER: AR20160018999 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ __X______ ___X__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: February 16, 2017 DOCKET NUMBER: AR20160018999 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. __________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. BOARD DATE: February 16, 2017 DOCKET NUMBER: AR20160018999 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: a. removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 26 May 2015 from her Official Military Personnel File (OMPF) and b. reinstatement of her educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. She has been denied continued service by the Qualitative Management Program (QMP) Selection Board due to receipt of nonjudicial punishment (NJP) under Article 15 of the UCMJ. The evidence contradicted the verdict and now she has to leave of the military. b. The injustice is not what happened to her, but to her daughter. Her daughter received an email stating her educational benefits had been revoked and there is a possibility that she would have to pay an overdue balance. She requests approval for her daughter to retain her education benefits because she is 10 months shy of completing her 4-year service obligation. If her daughter cannot retain the transferred educational benefits, she requests cancellation or remission of the amount owed. It would cause great hardship on her family if she loses her job and has a debt. 3. The applicant provides: * DA Form 2627 and allied documents * DA Form 4856 (Developmental Counseling Form) * documentation pertaining to forensic toxicology drug testing laboratory * Enlisted Record Brief * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) * memorandum, dated 19 May 2015, pertaining to a witness telephone interview * DA Form 3881 (Rights Warning Procedure/Waiver Certificate) * DA Forms 2823 (Sworn Statement) CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving on active duty in the rank of staff sergeant. 2. Records show she requested TEB under the Post-9/11 GI Bill on 23 January 2014 and the U.S. Army Human Resources Command approved her TEB on 24 January 2014 with a TEB service obligation ending date of 22 January 2018. 3. The DA Form 2627, dated 26 May 2015, shows she accepted NJP under Article 15 of the UCMJ for failing to obey a lawful order (wrongfully provided an adulterated specimen – urine sample not composed of urine). She did not demand trial by court-martial. The imposing commander directed filing the DA Form 2627 in the restricted folder of her OMPF. She appealed the imposed punishment, but her appeal was denied. 4. Subsequently, the QMP Selection Board conducted a comprehensive review of her records for potential denial of continued service under QMP and recommended her non-retention. Her projected QMP separation date is 1 March 2017. 5. Her OMPF in the interactive Personnel Electronic Records Management System (iPERMS) contains a copy of the DA Form 2627 in the restricted folder. 6. Records show the U.S. Army Human Resources Command rejected her TEB request on 3 November 2016 due to her QMP separation date occurring before her TEB service obligation ending date. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice. a. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. It states applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records. It further indicates there must be clear and compelling evidence to support removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the Army Board for Correction of Military Records. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the Army Board for Correction of Military Records or other authorized agency. 3. Appendix B (Documents Authorized for Filing in the OMPF and/or iPERMS) of Army Regulation 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. The instructions state a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 of the DA Form 2627). 4. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, this law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, have at least 90 days of qualifying Post-9/11 GI Bill service, 6 years in active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the TEB website, http://milconnect.dmdc.mil. All benefits must be transferred before the service member separates or retires. 5. The Post-9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The option to transfer educational benefits to a dependent is a retention incentive. The educational benefits transfer incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for past service nor a transition benefit. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. DISCUSSION: 1. The evidence shows the applicant accepted NJP under the provisions of Article 15, UCMJ, in May 2015 for failing to obey a lawful order. She did not demand trial by a court-martial and her appeal was denied. The imposing commander directed filing the DA Form 2627 in the restricted folder of her OMPF. 2. There is no evidence indicating the DA Form 2627 was improperly imposed. The DA Form 2627 imposed on 26 May 2015 is properly filed in the applicant's OMPF. 3. The evidence shows she was initially eligible for and was approved for TEB under the Post-9/11 GI Bill. However, she had unfavorable information (DA Form 2627) in her records which resulted in a comprehensive review of her records and QMP approval for separation. Her projected QMP separation date is 1 March 2017. She will not fulfill her TEB service obligation ending date of 22 January 2018. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160018999 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160018999 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2