BOARD DATE:  3 December 2019

DOCKET NUMBER:  AR20190010839


APPLICANT REQUESTS: 

*	Upgrade of his general discharge under honorable conditions to honorable
*	In effect, correction of his DD Form 214 (Certificate of Release or Discharge from 
Active Duty) by revising item 26 (Separation Code) to "JFF," changing item 
27 (Reentry (RE) Code) to RE-1 (Eligible to Reenlist without Waiver), and 
amending item 28 (Narrative Reason for Separation) to "Secretarial Authority" 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 
*	Table of Contents for applicant's arguments
*	Exhibits 1 – 16  List:

*	Exhibit 1 – DD Form 214
*	Exhibit 2 – Notice Letter from USCIS (U.S. Citizenship and Immigration 
Services) for Naturalization Interview
*	Exhibit 3:  Exhibit 3A – Naturalization Application Receipt and Interview 
Results; Exhibit 3B – Recent Responses from USCIS; Exhibit 3C – 
Applicant's Military Identification Card and Certificates of Appreciation
*	Exhibit 4 – USCIS Form N-445 (Notice of Naturalization Oath Ceremony); 
Certificate of Naturalization; U.S. Passport
*	Exhibit 5 – Army Discharge Review Board (ADRB) denials in 2014 
and 2017
*	Exhibit 6 – Pictures (a total of 12, from wedding, when applicant lived with ex-
wife, and Naturalization Oath Ceremony)
*	Exhibit 7 – Four affidavits from applicant's landlord, a doctor, and a friend
*	Exhibit 8 – Army Times article
*	Exhibit 9 – Bank statement and tax documents
*	Exhibit 10 – Airplane tickets for applicant and ex-wife
*	Exhibit 11 – Envelopes showing correspondence with ex-wife and ex-mother-
in-law while applicant was in basic combat training
*	Exhibit 12 – Applicant's Employment Authorization Document Card (EAD) and 
USCIS Form G-845 (Document Verification Request)
*	Exhibit 13 – USCIS webpage for USCIS Form I-130 (Petition for Alien 
Relative)
*	Exhibit 14 – Permit for Controlled Chemical Substances
*	Exhibit 15 – News of ICE (Immigration and Customs Enforcement) arresting 
illegal immigrants 
*	Exhibit 16 – Recommendation letters

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  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, during the discharge process, and later in the ADRB review, 
the Army committed "errors and misconducts."  He asserts the Army lacked:  
jurisdiction, related knowledge and experience, proper instructions, reliable grounds, 
and convincing evidence to support the allegations that resulted in his discharge.  
Further, the Army failed to follow the "Due Process Clause."  As to the ADRB, it did not 
comply with either the requirements of Army Regulation (AR) 635-200 (Active Duty 
Enlisted Administrative Separations) or standards, as they pertain to "arbitrary and 
capricious" decisions, that are outlined in the APA (Administrative Procedure Act, 
Title 5 (Government Organization and Employees), subchapter II (Administrative 
Procedure)).  The applicant submits additional arguments in a 37-page document, in 
which he writes the following:

	a.  He describes some of his personal history, beginning with his Regular Army 
enlistment in 2009.  

		(1)  He entered the Army via the Military Accessions Vital to National Interest 
(MAVNI) program (a Department of Defense initiative designed to recruit 
legal/nonimmigrant aliens (i.e. not permanent residents) with special language/cultural 
backgrounds).  When he enlisted, he provided all of the required immigration 
documents to his recruiter; at the time, his immigration status hinged on his marriage to 
a U.S. citizen.  

		(2)  He had served on active duty for more than 2 years when the U.S. Army 
Criminal Investigation Command (CID) launched an investigation into USCIS allegations 
that he had fraudulently enlisted into the Army.  After CID completed its investigation, 
his leadership never preferred charges against him; nonetheless, in May 2012, his unit 
commander initiated separation action against him for "Fraudulent Enlistment" and 
"False Official Statement."  He contends, during the separation process, the Army erred 
by not letting him present his case before an administrative separation board and/or a 
court-martial.  On 29 June 2012, the separation authority discharged him under 
honorable conditions (general).

		(3)  After he left the Army, USCIS interviewed him because of his pending U.S. 
citizenship application.  USCIS told him, while they were not denying his application, 
they were unable to make an immigration determination; he decided to sue USCIS.  His 
case was settled, USCIS subsequently approved his citizenship application, and, on 
23 May 2013, he became a naturalized U.S. citizen.

	b.  The applicant submits reasons why the Board should accept his application, 
despite the expiration of the ABCMR's 3-year statute of limitations.  He also provides 
language from the U.S. Code and gives a definition of the presumption of regularity.

	c.  He asserts the ADRB committed misconduct and numerous legal errors when it 
failed to appropriately address his case; in addition, his discharge and the ADRB's two 
denials were unlawful.  He offers nine arguments:

		(1)  The Army lacked jurisdiction to determine whether his marriage was 
fraudulent.

		(a)  The applicant quotes wording from his commander's notification of 
separation memorandum; the applicant then references a memorandum, signed by the 
separation authority, dated 14 June 2012, and having the Subject:  [applicant] Incident 
of Fraudulent Entry Determinations and Findings.  The applicant asserts, in effect, his 
chain of command discharged him "based on a possible fraudulent marriage"; however,  
if the evidence were to show his marriage was actually bona fide, then the Board would 
necessarily have to conclude the visa used to support his enlistment was valid, and his 
immigration status was legal; this would likewise mean he made no false 
representations during the enlistment process 

		(b)  Regarding his claim the Army lacked the necessary jurisdiction to determine 
whether his marriage was fraudulent, the applicant emphasizes the separation 
authority's findings were based solely on the "possibility" the applicant's marriage was 
fraudulent; he further notes the "possible fraudulent marriage occurred and was 
complete(d) before (he) joined the Army."  This is important because, he asserts, the 
Army cannot assume jurisdiction over an offense allegedly committed while he was still 
a civilian.  In support of his jurisdiction argument, the applicant:

*	Quotes a portion of the Immigration and Nationality Act (Title 8, U.S. Code), 
wherein it lists the legal penalties for anyone who knowingly enters into a 
marriage to evade immigration law
*	Cites case law that states a "fraudulent marriage is not a continuing crime"; 
and is "complete on the date of the marriage"; although he was still married in 
2009, his allegedly fraudulent marriage was "completed" in 2007, at a point 
when he had no connection to the Armed Forces
*	References a U.S. Supreme Court case that essentially affirms the military 
cannot exercise court-martial authority over civilians
*	Notes the APA provision that states a sanction cannot be impose unless 
jurisdiction has been properly delegated (Title 5, U.S. Code, section 
558 (Imposition of Sanctions; Determination of Applications for Licenses; 
Suspension, Revocation, and Expiration of Licenses)

		(2)  The separation authority did not affirm the finding of false official statement.

		(a)  The applicant argues, while his unit commander identified the rendering of a 
false official statement as one of the bases for initiating separation action, the 
separation authority did address it in his final determination (apparently referring to the 
earlier-referenced 14 June 2012 memorandum, Subject:  [applicant] Incident of 
Fraudulent Entry Determinations and Findings).  The applicant maintains, due to the 
presumption of administrative regularity, the Board "should not assume that the 
Applicant committed False Official Statement."

		(b)  He further asserts, in effect, the ADRB acted improperly when it opted not to 
change his separation, and determined the applicant's discharge was proper and 
equitable.  

		(3)  The applicant met citizen requirements when he enlisted.

		(a)  The applicant quotes one of the separation authority's findings, taken from 
the earlier-referenced fraudulent entry determinations and findings memorandum; in it, 
the separation authority stated:  "That [applicant] did not meet citizenship requirements 
when he enlisted, and that this requirement is of a disqualifying nature for enlistment."  
The applicant opines the wording is confusing, and contends, what the separation 
authority really meant was the applicant "should (have met) the immigration 
requirements to be a U.S. citizen when he enlisted, but he did not, therefore he was not 
qualified for enlistment (through the MAVNI program)."  The applicant asserts, contrary 
to this latter interpretation, the MAVNI enlistment criteria did not say he had to be a U.S. 
citizen.  He cites a U.S. Army Special Operations Command (USASOC) memorandum, 
dated 10 June 2009, which addresses the assignment of foreign-born Soldiers to 
USASOC, and specifically states the Secretary of Defense approved the recruitment of 
legal aliens.  
		(b)  The applicant points out his Regular Army enlistment was in September 
2009; by the time he applied for U.S. citizenship in January 2010, he had already 
served honorably for more than 2 years.  In Part 2 of his application, the applicant 
showed he was applying for citizenship because of qualifying military service.  (Section 
329 of the Immigration and Naturalization Act states members of the U.S. Armed Forces 
who have served honorably during designated periods of hostilities, including after 
11 September 2001, may be eligible to naturalize; they must have been living within the 
U.S., either as a lawful permanent resident or were physically present at the time of 
enlistment, and be able to demonstrate good moral character, be well disposed to the 
good order and happiness of the U.S., and show an attachment to the principles of the 
U.S. Constitution). 

		(c)  The applicant again points to the separation authority's determinations and 
findings memorandum, asserting, if the separation authority's above-cited finding was 
correct, the applicant's citizenship application should then have been denied by USCIS; 
instead, his citizenship application was subsequently approved and he was naturalized.

		(4)  The Army cannot prove its reasons and findings, with regard to his 
discharge.  While the Board will presume regularity as to the separation authority's 
reasons and findings, neither are supported by evidence:  

		(a)  As stated above, the notification memorandum's Reason Number 2 (False 
Official Statement), should be voided by virtue of the separation authority's failure to 
address it in the determinations and findings memorandum.  

		(b)  As to Reason Number 1 (Fraudulent Entry), the notification memorandum 
essentially alleged:  the applicant procured his enlistment through deliberate 
misrepresentation; made false representations that he (the applicant) was legally in the 
U.S., and based his presence in the U.S. on a fraudulent marriage; and that the 
applicant then illegally accepted pay and allowances as a result of his fraudulent 
enlistment.  The applicant maintains, in reality:  he knowingly made a statement that he 
was legally in the U.S. because he had a valid EAD, the EAD was never revoked, and 
he was neither charged nor convicted by a Federal court for the crime of fraudulent 
marriage.  

		(c)  The applicant asserts the "Army officers could not by themselves determine if 
the applicant committed fraudulent marriage."  He contends the separation authority's 
judgment on this matter was invalid; this was because the separation authority was 
unfamiliar with immigration law.  According to the U.S. Supreme Court, the Army's 
primary business does not include judging whether, at the time of the marriage, the 
applicant intended to establish a life with his now-former spouse. 

		(d)  The Board should not consider USCIS as a reliable source of information; 
during his lawsuit against USCIS, the USCIS and/or the District Attorney could have 
filed a motion to dismiss his suit; instead, the government settled his case.  The 
applicant asserts this outcome, and his subsequent naturalization, prove it is more 
probable than not that the government settled his case because, during the course of 
their investigation against him, USCIS did something that violated immigration law.  This 
alone should be enough for the Board to deem the USCIS as unreliable, but the 
applicant additionally argues, during the investigation and discharge process, the 
USCIS officer in charge of his case acted unreliably by giving an unreasonable 
explanation.  The applicant acknowledges USCIS made the allegation of fraudulent 
marriage against the applicant, but "anyone could make allegations, and the USCIS 
could make mistakes and even violate its own regulation."  In the final analysis, the 
Board should give more weight to the fact the Director, USCIS signed the applicant's 
naturalization certificate, and thereby validated the applicant had "complied in all 
respects with all of the applicable provisions of the naturalization laws of the U.S."  The 
Board should also find the USCIS director's aforementioned determination should be 
accepted as more reliable than any evidence offered by a subordinate USCIS officer.

		(5)  The ADRB did not follow AR 635-200.

		(a)  Paragraph 7-17 (Incident of Fraudulent Entry) of AR 635-200 requires the 
separation authority to apply two tests, when determining if an enlistment is fraudulent.  
In the second test, the commander must verify the existence and true nature of the 
apparent disqualifying information; such verification may ultimately reveal the enlistee 
was actually not disqualified and, thus, no fraud occurred.  The applicant describes the 
example given in the regulation, wherein it states, "if the Soldier alleged that he/she was 
convicted of burglary and placed on probation, inquiries must be made as to whether 
the Soldier was actually convicted of burglary.  In fact, the Soldier may have initially 
been charged with burglary, but the charge may have been reduced to trespass, which 
is a minor non-traffic offense for enlistment purposes that is not disqualifying for 
enlistment or re-enlistment."  

		(b)  The applicant essentially contends, in the foregoing example, it is beyond 
reasonable doubt that the Soldier committed trespass, since he/she was convicted; it is 
additionally probable the Soldier committed burglary, given the initial charge.  
Significantly, because the Soldier was not convicted of burglary, he/she cannot be 
discharged for fraudulent entry.  In requiring the commander to conduct an inquiry, the 
regulation does not state the commander should verify the existence or true nature of 
the burglary charge, even when the available evidence is sufficient to prove that it was 
more likely than not that the Soldier committed the crime.  The applicant argues this is 
because the alleged burglary occurred before the Soldier's enlistment and, at that time, 
the Army did not have jurisdiction.  In addition, the regulation does not say the 
commander should depend on another agency's opinion or judgment, when verifying 
the actual offense (apparently inferring the separation authority should not consider 
input from USCIS).

		(c)  In the applicant's case, the separation authority, and/or the ADRB, should 
have made inquiries as to whether the applicant was actually convicted of fraudulent 
marriage; the applicant maintains the Board should now conduct such an inquiry.  The 
inquiry's findings would reveal the applicant was never convicted, and, because the 
5-year statute of limitations has lapsed, the applicant will never face a Federal charges 
for fraudulent marriage.  While it is clear the ADRB confirmed the separation authority's 
determinations, the applicant argues the Board should consider that "at least it is 
possible (he) did not commit fraudulent marriage"; assuming this possibility, he 
contends the separation authority should not have discharged him.  

		(d)  He states, in effect, both the Army and the ADRB did not afford him his right 
to the presumption of innocence, and he asserts the Army's determinations alone do not 
overcome this presumption.  He asserts the Army bore the burden of overcoming this 
presumption, and, in apparent contravention of the presumption's precepts, the ADRB 
seemed to want the applicant to prove his innocence.  The applicant opines the 
separation authority gave him a general discharge because he anticipated the applicant 
would eventually be charged with and convicted of immigration fraud; of course, this did 
not happen.  The applicant maintains, ultimately, it cannot be proven whether he did, or 
did not he did commit this crime.  In any case, the Army failed to establish his marriage 
was fraudulent, and the fact he was naturalized should confirm for the Board that his 
discharge was invalid; he should not have been penalized for what was clearly a 
questionable and contested act of fraud.  

		(e)  In effect, the applicant maintains, as outlined in paragraph 3-7a (Honorable 
Discharge) of AR 635-200, the overall quality of his service was honorable because it 
generally met the Army's standards for acceptable conduct and duty performance; the 
Board should find in his favor and grant his requests because he has raised what he 
believes are valid doubts about his discharge.

		(f)  The ADRB failed to explain how the separation authority fulfilled the 
regulation's second test, as outlined in paragraph 7-17; the applicant reiterates his 
arguments regarding jurisdiction, and asserts the Army must at least depend on 
something tantamount to an actual conviction, or show that the alleged crime can be 
proved beyond a reasonable doubt.  Neither of these two conditions were met in his 
case and, as a result, the ADRB's denial decisions should be set aside.

		(g)  The ADRB was unfair in its treatment of his evidence.  He provided the 
ADRB four notarized affidavits, all dated prior to his enlistment.  The ADRB stated, in 
effect, because the affidavits seemed to be part of an investigation that pre-dated the 
applicant's entry on active duty, the ADRB deemed them as insufficiently compelling to 
overcome the presumption of regularity.  If the ADRB had applied this same standard to 
other evidence (one based on when the evidence was created), it would necessarily 
have concluded Department of Homeland Security's (DHS) report of investigation (also 
generated prior to his enlistment) was equally uncompelling; the ADRB should also 
have determined the DHS report was insufficient to overcome the applicant's 
presumption of innocence.  The fact is, the DHS report was the only real evidence the 
separation authority had to substantiate the applicant's possible marriage fraud; all other 
pieces of evidence, in the applicant's view, were irrelevant.  The manner in which the 
ADRB treated his affidavit evidence, when coupled with his argument about the 
DHS report's inability to overcome his presumption of innocence, should give the Board 
the necessary basis to find his contested fraudulent marriage cannot be proved and he 
should never have been discharged. 

		(6)  The Army violated the applicant's due process rights.

		(a)  A Soldier pending separation action should be given the opportunity to 
explain himself; as was his right, the applicant submitted matters in his own behalf.  In 
email correspondence between the battalion judge advocate and the applicant's USCIS 
case officer, the battalion judge advocate essentially acknowledges the applicant 
submitted documents, but, the applicant points out, those documents are no longer part 
of his separation packet.  As such, it is not clear whether his submissions were ever 
made available to the separation authority before the decision to discharge was made; 
the applicant notes the separation authority did not mention his evidence, and, he 
asserts, it is more likely than not that the separation authority never saw what he 
submitted.  In support of this assertion, he notes, while his evidence is missing, his 
separation packet does include the aforementioned email correspondence.  

		(b)  The applicant argues, assuming what he asserts is correct, the separation 
authority did not afford the applicant a proper review of his case prior to directing 
discharge.  The applicant cites Army Times reporting about two Soldiers who served in 
the 1990's, and who were discharged without being given the chance to plead their 
cases; the Army approved upgrades for both.  He affirms he asked to appear before an 
administrative separation board, but his request was denied; the Army's denial of his 
due-process rights should be yet another reason to upgrade his character of service.

		(7)  The USCIS case officer gave improper instructions.  

		(a)  CID stated its investigation resulted from a USCIS report claiming the 
applicant had fraudulently enlisted.  Neither CID nor the applicant's chain of command 
were familiar with immigration law; as such, it was the USCIS case officer's 
responsibility to properly educate both; the USCIS case officer failed to do so, and her 
misconduct affected the outcome of the applicant's case.

		(b)  Nowhere in the applicant's separation packet did his leadership offer the 
legal definition of a fraudulent marriage.  The investigation focused on the following:  
whether the applicant and his former-spouse lived together; if money was involved; was 
the marriage's purpose to circumvent immigration law; and was a matchmaker utilized.  
Reasonably, the applicant's chain of command could conclude the marriage was 
fraudulent if the couple did not live together, money was involved, the marriage's 
purpose was to evade immigration law, and a matchmaker had brought the couple 
together.  However, the applicant contends, "By law, even if the couple did not live 
together and a matchmaker arranged this marriage for immigration purpose, and there 
was money involved, the marriage was not necessarily fraudulent."  

		(c)  He requotes Title 8, U.S. Code, wherein in it essentially states anyone who 
knowingly marries for the purpose of evading immigration laws is subject to a fine and 
imprisonment.  He goes on to cite case law, stating, in effect, the key question is 
whether the person applying for citizenship, and his wife, intended to establish a life 
together after marrying.  "The concept of establishing a life as marital partners contains 
no Federal dictate about the kind of life that the partners may choose to lead.  Any 
attempt to regulate their lifestyles, such as prescribing the amount of time they must 
spend together, or designating the manner in which either partner elects to spend his or 
her time, in the guise of specifying the requirements of a bona fide marriage, would 
raise serious constitutional questions."

		(d)  Citing a 1986 Harvard Law Review article titled The Constitutionality of the 
INS (Immigration and Naturalization Service) Sham Marriage Investigation Policy, the 
applicant further maintains marriage fraud can be either unilateral (where only one party 
commits fraud) or bilateral (where both parties participate).  In the applicant's case, the 
prosecutor had the burden of proving the applicant never intended to establish a life 
with his ex-wife; however, no one ever asked about this and USCIS never proved it.  
Despite the USCIS case officer's active participation in both the investigation and 
discharge process, she never gave the legal definition of a fraudulent marriage, and the 
separation authority was not provided proper instruction on this matter.  The applicant 
offers possible reasons for this omission, to include the speculation that the case officer 
simply did not know the definition.

		(e)  The applicant proposes once more, "but at least it is possible" his marriage 
was not fraudulent.  Both during the 2008 DHS investigation, and again with CID, the 
applicant affirmed he got married because he loved his ex-wife.  It seems, the applicant 
notes, few people in the Army want to believe him; he contends it is nonetheless 
"possible" he told the truth, in that he really loved his ex-wife, and he fully intended to 
establish a life with her.  The applicant references pictures he included as evidence, and 
describes how they met, his feelings for her, and that, after marriage, they established 
joint bank accounts and filed taxes together; he additionally offers details about their life 
together.  It was only after he learned she was a drug user that they separated.  He 
states he tried to help her, but he failed; they divorced in 2010.  

		(f)  The applicant restates his earlier argument pertaining to the commander's 
allegation of a false official statement, and provides the allegation's Uniform Code of 
Military Justice (UCMJ) definition.  He points out one of the elements of proof for the 
UCMJ violation is that the government must show the intent to deceive.  He indicates 
the CID special agent's (SA) report stated the applicant lost his ability to speak English 
when asked about money, and he required the assistance of an agent who spoke 
Mandarin.  The applicant asserts, his English was poor and the statement itself was 
immaterial; he further argues the immateriality of the statement indicates the absence of 
any intent to deceive.  The applicant then offers the definition of "pay," which he says 
means to give something in return for goods or services; if his statement is put into this 
context, the real meaning would be that he never gave any money to anyone in return 
for a fraudulent marriage.  The applicant then opines "this real meaning of the statement 
could be true."

		(g)  The applicant maintains, when case law is considered, it is immaterial 
whether the applicant made a false statement about money.  The applicant cites a 
Federal court case where the court ruled, although an immigration petitioner made false 
statements, they were not material to the issue at hand; the only issue upon which the 
petitioner's citizenship application turned was whether his marriage was "pretextual" (i.e. 
having false reasons that hide true intentions).  The applicant contends, whether or not 
he made false statements regarding payment was not material; the only issue was 
whether the applicant intended to establish a life with his former spouse, and, as noted 
earlier, the immateriality of the statement indicates the absence of an intent to deceive.

		(h)  The applicant reiterates his argument about his USCIS case officer being 
unreliable, and insists, had she told the applicant's unit commander that making a false 
statement was immaterial to the determination of a fraudulent marriage, the unit 
commander would not have included this allegation.  As a result, any fraudulent 
marriage allegations made by his USCIS case officer should, in effect, be invalidated by 
the Board. 

		(8)  USCIS behaved unreliably during the applicant's discharge case.

		(a)  The applicant addresses apparent inconsistencies in what his USCIS case 
officer reported to CID and then later told the battalion judge advocate.  He contends 
the USCIS case officer was unaware the applicant had been issued an EAD.  The 
applicant goes on to hold the USCIS case officer provided an unreasonable explanation 
regarding the EAD, stating, in effect, the applicant was issued an EAD as part of his 
marriage-based residency application; although the applicant's ex-wife withdrew her 
petition and admitted to marriage fraud, the applicant's citizenship petition was never 
closed.  The USCIS case officer continued, saying, the applicant's files remained with 
ICE, pending the prosecution of the larger fraud ring; by the time ICE released the files, 
the applicant was already in the Army.  Given what the USCIS case officer said, the 
applicant claims:

*	If USCIS could provide wrong information to the Army during the enlistment 
process, it could do the same during the investigation of his alleged fraudulent 
enlistment
*	While the USCIS case officer stated the applicant's ex-wife admitted to 
marriage fraud, his ex-wife had no charges filed against her
*	As a result of the relative-based immigration application, the applicant needed 
his ex-wife's petition for the applicant to immigrate; he could not have gotten 
an EAD all by himself; despite this, ICE did not later seek to deport him
*	USCIS case officer stated the applicant's citizenship application was never 
closed, but her explanation was unreasonable; supposedly, his citizenship 
application remained open pending the criminal prosecution of the larger 
fraud ring
*	Even with an open citizenship application, the government could have 
prosecuted him for violations of immigration law; neither ICE nor USCIS ever 
sought to file charges
*	The marriage fraud conspirators pleaded guilty in April 2009 and the applicant 
enlisted in July 2009; USCIS inexplicably waited 2 years before informing CID 
of his possible fraudulent enlistment 

		(b)  The applicant states, he was not deported after his discharge; instead, 
USCIS scheduled him for a citizenship interview.  He provides quotes from Title 8, U.S. 
Code and the USCIS Policy Manual, and asserts USCIS found him to be a "person of 
good moral character."  He restates his argument regarding the USCIS case officer's 
unreliability, and he offers a "more reasonable story" regarding his immigration and 
naturalization process.  There is no argument the applicant stayed in the U.S. legally 
due to a student visa, and he married his ex-wife in 2007.  He states, "Maybe there 
were matchmakers, money, and immigration purpose involved.  But that is immaterial."  
He describes the ubiquity of matchmakers in traditional Chinese culture and that 
"Matchmakers promote marriages and (have gotten) paid legally in China for thousands 
of years."  He reasserts how he truly intended to establish a life with his ex-wife, and 
that his ex-wife's withdrawal of support for his petition was invalid.  The applicant 
opines, when his former spouse signed the withdrawal form, she was on drugs and her 
mental status was "not normal"; in addition, she "admitted to the fraud marriage under 
the influence of drugs, and the ICE agent noticed this situation."  

		(c)  An ICE agent went to the applicant's apartment and spoke with several 
individuals, including the applicant and his ex-wife.  Apparently, following this visit, the 
ICE agent was "not reasonably assured" the applicant "never intended to live together" 
with his former spouse; the applicant argues, even if it were true that their intention to 
live together was not strong, that they broke up quickly, and that his ex-wife never really 
intended to establish a life with the applicant, the marriage would still be legal so long as 
the applicant had had that intent.  Because of the court's ruling in his case, the ICE 
agent took no action against the applicant; he maintains it is easy to see why USCIS did 
not act, and why he was eventually naturalized:  the Director, USCIS determined the 
applicant complied with all provisions of U.S. immigration law.

		(9)  The Army lacked convincing evidence to support his separation.  The 
applicant lists 6 items of evidence (used by the ADRB in its two considerations of his 
case) and then discusses each item one-by-one.  He asserts the pieces of evidence 
cannot disprove his intent to establish a life together with his former spouse; fail to show 
he paid money for a fraudulent marriage; and do not affirm he made false statements 
about paying money with the intent to deceive.  The evidence also cannot prove he did 
not meet citizenship requirements when he enlisted in 2009.  His discussion of the 
evidence largely mirrors his above-stated arguments, in that he reiterates assertions of 
about jurisdiction, the absence of personal knowledge of his motives, and an inability to 
prove false official statement and fraudulent marriage.  He offers additional arguments 
that pertain to the following documents:

		(a)  Battalion judge advocate's undated Memorandum for Record (MFR), Subject:  
[applicant] Incident of Fraudulent Entry; Executive Summary of Evidence, with 
associated timeline.  

*	The battalion judge advocate writes the applicant was never prosecuted and, 
according to USCIS, this was because the Department of Justice did not want 
to use its resources to go after a "little fish"  
*	The applicant opines the foregoing explanation is unreasonable and appears 
to be inconsistent with the USCIS case officer's statement that the applicant 
was no longer a legal alien once his ex-wife withdrew her petition
*	The applicant contends, ICE could have deported him, or revoked his EAD, 
which would have hampered his efforts to find work and possibly cause  him 
to return to China on his own
*	None of these things happened and, the applicant speculates, it is more 
probable than not that there was another reason why he was not charged (he 
does not state what this other reason might be)
*	While the timeline may be the reason for suspecting the purpose of the 
applicant's marriage, it does not offer a basis for the separation action; the 
timeline does not prove it was more probable than not that the applicant did 
not intend to establish a life with his ex-wife 

		(b)  In CID's interview, the applicant denied knowing Mi__ W__ (listed on the 
Standard Form (SF) 86 (Questionnaire for National Security Positions) as the 
applicant's father-in-law); regarding the persons listed on the SF 86 as father-in-law and 
mother-in-law, the applicant said, "I swear to God that I didn't put Mi__ W__ or Me__ 
W__ on the SF 86."  This was proof the applicant had denied intentionally adding wrong 
information to his SF 86.

		(c)  Applicant's PAI/PEI Report (Security Clearance Application), dated 28 July 
2009.  The report shows the applicant's in-laws as having Chinese names, with 
addresses in China.  The applicant asserts the wrong information was inadvertently 
entered by him and his recruiter; the applicant acknowledges not reviewing the 
document before signing and that he "did not make this mistake 'with the intent to 
deceive.'"  

		(d)  ICE interview of applicant's ex-wife on 17 June 2008.  The applicant argues 
his ex-wife and her friends were all drug abusers and had mental problems; this made 
their statements unreliable because they had difficulty perceiving reality.  In addition, 
they all had memory and judgment issues.  None were immigration experts and likely 
did not understand the legal definition of a fraudulent marriage.  The applicant also 
quotes portions of his ex-wife's statement to ICE and essentially discounts what she 
says due to her drug use and mental condition.

		(e)  "Marriages Connected to T__ and N__."  This refers to a redacted extract 
from an ICE investigation into the marriage fraud ring run by Ms. K__ T__ and Mr. H__ 
N__; both pleaded guilty and were convicted by a Federal Court in 2009.  The applicant 
notes, while much of the report is redacted, it indicates that, on a date in 2007, the 
Alameda County Clerk's office reported Mr. H__ N__ came to the clerk's office with a 
couple who were then married.  ICE requested all marriage certificates executed on that 
date; one of the marriage certificates turned over by the clerk was the applicant's.  The 
applicant claims it is more probable than not that the county clerk was referring to 
someone else, not the applicant; nonetheless, the ICE agent somehow mistook 
applicant's marriage as being the one associated with Mr. H__ N__.

		(f)  Ms. K__ T__ and Mr. H__ N__ Plea Agreements.  The applicant contends, 
while these agreements show both Ms. K__ T__ and Mr. H__ N__ were guilty of 
arranging fraudulent marriages, they do not prove the applicant's guilt; nor do they serve 
to validate that Ms. K__ T__ and Mr. H__ N__ played a role in arranging the applicant's 
marriage.  Additionally, the documents do not preclude the possibility that some of the 
allegedly fraudulent marriages were genuine; even if Ms. K__ T__ and Mr. H__ N__ 
were involved in the applicant's marriage, it cannot be proven the applicant did not 
intend to establish a life with his ex-wife, or that he paid them money and then made 
false statements with the intent to deceive.  

	d.  Under the heading "Justice," the applicant maintains his discharge was 
inconsistent with the disciplinary standards that were in effect at the time, and he cites 
the version of AR 635-200 that was then in effect.  

		(1)  He essentially argues the separation authority did not correctly apply the two 
tests described in paragraph 7-17; the Soldier described in the second test was 
convicted of a lesser, but not the disqualifying crime; in contrast, the applicant was not 
of convicted any crime.  The applicant contends, to be fair, he should have been treated 
better than the Soldier in the example.  He asked the separation authority to let him 
remain on active duty until his citizenship was determined, but his request was denied; if 
he had obtained his U.S. citizenship during the discharge process, he contends it is 
more likely than not that he would gotten a different type of discharge.  

		(2)  After the applicant told the ADRB he had not been charged with violating 
immigration law and had become a U.S. citizen, the ADRB stated the applicant's record 
gave no indication his command's actions were arbitrary or capricious.  The applicant 
asserts the ADRB's decisions in his case were arbitrary and capricious, because his 
situation was so similar to that of the Soldier in paragraph 7-17's second test.  He 
quotes two court decisions that state, if an agency treats similarly situated parties 
differently, its actions are arbitrary and capricious; this violates the APA.  Because the 
ADRB's decisions in his case were not the final answer, he asks the Board to set aside 
the ADRB's determinations.  

		(3)  Based on case law, the decisions of the ABCMR receive the benefit of an 
"unusually deferential application of the (APA's) 'arbitrary or capricious' standard."  
However, while "military judgment requiring military expertise" (i.e. matters specifically 
requiring military expertise/judgment) should be viewed with unusual deference, case 
law also requires traditional APA standards to be applied in the "review of the Board's 
application of a procedural regulation governing its case adjudication process."  As 
such, it would be inappropriate to apply the "unusually deferential" standard of review in 
the applicant's case because he has raised "non-frivolous claims of plain legal error 
involving the Army's failure to comply with statutes, regulations, and mandatory 
procedures."  The applicant contends "the key issue is (whether) a civilian intended to 
establish a life together with his ex-wife at the time of their marriage, and there was no 
'military judgment requiring military expertise' involved."

		(4)  The applicant cites a 2011 U.S. District Court case that addressed the 
ABCMR's denial of relief in Docket Number AR20060014346, dated 26 July 2007.  

		(a)  The court noted its own previous finding that it is "axiomatic that '[a]n agency 
must treat similar cases in a similar manner unless it can provide a legitimate reason for 
failing to do so"; it also quoted case law that stated, "[I]f an agency treats similarly 
situated parties differently, its action is arbitrary and capricious in violation of the APA."  
		(b)  The court found, when the ABCMR denied relief in AR20060014346, it failed 
to address why an earlier ABCMR case, where relief was granted, was not used as a 
precedent; (the court mistakenly listed the docket number as AR200309457, vice 
AR2003094057; the court subsequently remanded the case to the ABCMR).  The court 
did not accept the following three reasons for the ABCMR's denial of relief in 
AR20060014346:  "The ABCMR reviews each case individually and is presented before 
the Board based on its own merit and evidence," "There are no cases that set the 
standards on how the Board should always vote," and "The decision in ABCMR Docket 
Number AR2003094057 ... was not a unanimous decision to grant relief."

		(c)  In the event the Board uses the same or similar reasons to deny his 
requests, the applicant submits the following counter-arguments:

*	Regarding the first reason:  while true that the applicant's case is not exactly 
the same as the example in paragraph 7-17's second test, he contends it is 
"virtually identical"
*	"Fraudulent marriage" could replace "burglary," and "trespass" substituted 
with some minor, non-disqualifying offense; consider a hypothetical where the 
applicant was charged with fraudulent marriage, but the charge was reduced 
to something non-disqualifying; result:  he would not have been discharged
*	The fact is, the applicant was not charged at all; this obviously makes his 
general discharge unfair and unjust
*	As to the second reason:  the aforementioned example specifically illustrates 
how to establish whether a fraudulent enlistment has occurred; it should "set 
the standards on how the Board should always vote"
*	The last reason indicates the vote was not unanimous; he argues, assuming 
the Board agrees his case is exactly the same as the above-referenced 
example case, the vote should be unanimous; nonetheless, the court points 
out "A split decision ... is no less valid than a unanimous one"

		(5)  The applicant states, in effect, he enlisted through the MAVNI program and 
gave his EAD to his recruiter; the applicant affirms he was not an expert in immigration 
matters.  Considering that his EAD was never revoked, he was not charged with 
fraudulent marriage, and USCIS subsequently considered him to be a person of good 
moral character and naturalized him, it appears he did nothing wrong.  Further, he never 
faced nonjudicial punishment or a court-martial at any point during his active duty 
service; he participated in Special Forces training and earned two Certificates of 
Appreciation.  Since his discharge, he has remained dedicated to the service of this 
country; he insists he is worthy of being extended every possible consideration.  




3.  The applicant provides 16 exhibits:

	a.  The exhibits include documents from his official military personnel file, separation 
packet, and his two ADRB considerations.  He also submits naturalization documents, 
and news articles pertaining to the results of previous ABCMR cases and how ICE is 
currently executing search warrants for illegal immigrants.  He provides letters of 
recommendation from two supervisors from his post-service employment; both describe 
him as an effective worker and an honest, dedicated employee.  

	b.  As addressed in his foregoing argument, he also provides four affidavits 
previously submitted to the ADRB.  The affidavits were intended to validate his desire to 
establish a life together with his ex-wife, but the ADRB dismissed them as 
uncompelling.  The applicant resubmits them because, given the amount of time that 
has passed, he finds it is difficult, if not impossible to procure any new evidence that 
might further demonstrate the applicant's intent when he married.  The four affidavits, 
dated in July/August 2008, stated the following, in summary:

*	Applicant's landlord (1st statement) – Ms. B__ R__ Wa__ certified she had 
personal knowledge of the applicant's "bona fide marriage relationship"; this 
was because, in December 2007, they leased an apartment from her and 
moved in; the landlord observed them doing household chores together
*	Applicant's landlord (2nd statement) – Ms. B__ R__ Wa__ certified, on 
several occasions, the applicant's wife created disturbances; once, at 1 a.m., 
the applicant's wife banged the apartment building's gate, shouted loudly, and 
argued profanely with a taxi driver; neighbors were disturbed
*	Ms. T__ M. L__'s doctor; friend of both the applicant and his ex-wife – the 
doctor certified he had personal knowledge of the "bona fide marriage 
relationship"; they and the doctor's family occasionally socialized; they 
sometimes slept at this place; applicant discussed marriage problems
*	Mr. Ed__ Pl__ (friend of applicant and ex-wife; introduced applicant to his ex-
wife; apparent link between the applicant and the marriage fraud ring) – 
certified personal knowledge of "bona fide marriage"; helped applicant in the 
dating process and saw instances of intimacy (i.e. kissing and hugging)

4.  The applicant's service records show:

	a.  On 21 November 2002, the applicant entered the U.S. from China using an 
F-1 student visa; he attended school in Arizona.  

		(1)  He graduated in 2007 and extended his student visa under the Optional 
Practical Training program; his F-1 visa's adjusted expiration was 31 January 2008.  
(OPT is a USCIS initiative that allows F-1 student visa holders to obtain temporary 
employment in their major field of study for up to 12 months).  

		(2)  In or around February 2007, he moved to the vicinity.  

		(a)  On 23 October 2007, he married Ms. T__ M. L__ at an county clerk's office.  
On or around that same date, the county clerk's office contacted ICE to report that Mr. 
H__ N__ (subsequently convicted of conspiracy to commit marriage fraud) had come 
there with a couple who were then married.  

		(b)  The county sheriff told ICE that Mr. H__ N__ was also seen dropping off a 
second couple at the county clerk's office (believed by ICE to be the applicant and his 
now former spouse).  ICE obtained all of the marriage certificates completed on or 
around 26 October 2007 and found two that had the same witness; one of those two 
certificates was the applicant's.  

		(3)  On 23 January 2008 (8 days prior to the expiration of the applicant's F-1/OPT 
visa), the applicant's spouse (hereinafter referred to as Ms. T__ M. L__) filed a USCIS 
I-130 (Petition for Alien Relative), reflecting the applicant as her spouse.  (The I-130 is a 
first step in helping an eligible relative immigrate to the U.S.; once approved the relative 
can apply for legal permanent residency). 

	b.  On 17 June 2008, ICE agents executed search and arrest warrants; the warrants 
were based on allegations Ms. T__ M. L__ was involved in a fraudulent marriage, 
arranged by Ms. K__ T__ (subsequently convicted of conspiracy to commit marriage 
fraud).  

		(1)  On ICE's arrival at the applicant's residence, the applicant's landlord (Ms. 
B__ R__ Wa__) told ICE the applicant had been residing there for 3 months, but Ms. 
T__ M. L__ never lived there.  

		(2)  The landlord affirmed she had seen Ms. T__ M. L__ 3 days prior, when she 
came to speak with the applicant; Ms. B__ R__ Wa__ stated she had never seen them 
living together and did not know where Ms. T__ M. L__ resided.  

	c.  Also on 17 June 2008, ICE agents interviewed the applicant.

		(1)  He stated his wife was staying at a local motel with her mother, after her 
mother's recent arrival from out-of-state for a visit.  He acknowledged his wife had been 
living on the streets and was staying with friends.  

		(2)  The applicant told ICE he met Ms. T__ M. L__ in August or September 
2007 at a jewelry store; her friend, Mr. Ed__ Pl__, was with her at the time.  He saw her 
about 8 times after that, but never spent the night at any of the places she was staying.  
He asked Ms. T__ M. L__ to marry him while they were in his car, and, in December 
2007 (sic, 23 October 2007), they were wed at a courthouse in.  They lived together for 
a short while at his Daly City address, but she moved out; Ms. T__ M. L__ had lifestyle 
problems and all they did was argue.

		(3)  Prior to the marriage, he had not met any of Ms. T__ M. L__'s family; 
because his entire family was in, Ms. T__ M. L__ had not met the applicant's family.  

		(4)  The ICE agents showed the applicant a photo line-up of four individuals; the 
applicant recognized only Mr. H__ N__, stating he had met Mr. H__ N__ at a local hotel, 
but he knew nothing about him.

		(5)  The applicant said he later learned Ms. T__ M. L__ was a drug abuser and 
that she was hanging around bad people; they discussed getting an annulment or a 
divorce, but he wanted them to stay together.  He said he had tried to help Ms. T__ M. 
L__ by purchasing tickets for them to fly her back to her mother, but Ms. T__ M. L__ 
never showed up for the flight.  He denied being involved in a fraudulent marriage.  ICE 
agents then checked the applicant's closet and found 15 to 20 items of women's 
clothing, ranging in size from x-small to large; there were no shoes and some of the 
clothing items still had store tags on them.  The ICE report of investigation does not 
indicate whether ICE detained the applicant at the time.

	d.  On 17 June 2008, ICE interviewed Ms. T__ M. L__ at the local motel; she was 
there with her mother and a friend, Mr. S__ C__.  While waiting for another ICE agent to 
arrive, the interviewing officer heard Ms. T__ M. L__ talking on the phone; she was 
heard saying:  "whatever you have me set up in, come get me"; "whatever thing you got 
me involved in; tell him to give me my $17,000"; and "tell him to empty his bank account 
and call it even."  Ms. T__ M. L__ later told the ICE agent she was talking to Mr. Ed__ 
Pl__ (the friend the applicant identified as being with Ms. T__ M. L__ when they met at 
the jewelry store).  

		(1)  Ms. T__ M. L__ claimed she met the applicant in a restaurant in September 
2007; she did not recall the name of the restaurant, but she remembered she was there 
alone, and the applicant was there with an unidentified girl.  They just started talking, 
exchanged phone numbers, and she would call the applicant.

		(2)  Ms. T__ M. L__ said she and the applicant saw each other about 8 more 
times before the applicant began talking about getting married; he also mentioned 
getting a green card (USCIS Form I-551 (Permanent Resident Card)).  They agreed 
they could help each other; she would marry him so he could stay in the U.S., and she 
would be taken care of with some money.  Ms. T__ M. L__ did not remember who 
brought up the marriage fraud scheme, but the applicant now owed her money, as a 
result of the marriage.  She said the applicant had already given her a couple of cell 
phones and $4,000 in cash.  

		(3)  Ms. T__ M. L__ continued, saying they got married in December 2007 (sic, 
23 October 2007) at a courthouse in Oakland, and she lived with the applicant for a little 
while.  She learned how to do marriage fraud from her friend, Mr. Ed__ Pl__ and Jo__ 
(an alias for Ms. K__ T__).  She acknowledged not living at the applicant's residence, 
but had stayed there "a couple of times."

		(4)  Ms. T__ M. L__'s friend, Mr. S__ C__, offered additional information.  He 
stated he had witnessed arguments about money between the applicant and Ms. T__ 
M. L__; the applicant would say he gave the money to Jo__ (AKA Ms. K__ T__).  
Mr. S__ C__ also heard Mr. E__ P__ tell Ms. T__ M. L__ she needed to meet with 
Jo__, and that he was sorry for getting her involved in the fake marriage to the 
applicant.

	e.  On 7 April 2009, Mr. H__ N__ signed a plea agreement in which he agreed to 
plead guilty to conspiracy to commit marriage fraud; apart from Ms. K__ T__ and one 
other named co-conspirator, the remaining co-conspirators were identified only as 
"U.S. Citizen-(number)" and "Chinese Citizen (number)."  On 29 April 2009, 
Ms. K__ T__ also agreed to plead guilty to conspiracy to commit marriage fraud.

	f.  On 30 June 2009, the U.S. Army Recruiting Command sent USCIS a 
Form G-845 (Document Verification Request) to validate the applicant's immigration 
status; on 8 July 2009, USCIS responded, indicating the applicant's EAD appeared to 
be valid, and that it was due to expire on 16 May 2010; the applicant was pending an 
adjustment in status.  In the comments section of the form, USCIS stated, "After a 
systems research, USCIS was unable to confirm that the applicant has maintained a 
continuous legal status for the previous two year period."

	g.  On 28 July 2009, as part of his enlistment into the Regular Army, the applicant 
completed the following forms:

		(1)  DD Form 1966 (Record of Military Processing – Armed Forces of the United 
States).  The form showed:  applicant was an immigrant alien; he had a dependent; 
and, to verify the applicant's name, age, and citizenship, the recruiter used a USCIS 
Form G-845.

		(2)  SF 86 (Questionnaire for National Security Positions)/PAI/PEI Report.  On 
this form the applicant indicated:  he was a nonimmigrant foreign national; he was 
married and his spouse was T__ M. (spouse's last name same as applicant's); his 
father-in-law was W__, Mi__, his mother-in-law was W__, Me__, and both lived in 
China.
	h.  On 28 July 2009, he enlisted into the U.S. Army Reserve Delayed Entry Program 
(USAR DEP); on 16 September 2009, the applicant was discharged from the DEP and 
enlisted into the Regular Army for a 4-year and 25-week term.  His DA Form 
3286 (Statement for Enlistment – U.S. Army Enlistment Program) shows:

		(1)  He enlisted under the U.S. Army Training Enlistment Program (MAVN).  He 
acknowledged his enlistment was executed under a provision of Federal law that 
authorized the Secretary of the Army to access non-U.S. citizens into the Regular Army.

		(2)  In exchange for enlisting, he agreed to apply for U.S. citizenship as soon as 
the Army certified his honorable service; if he became a U.S. citizen because of his 
military service, the government could revoke that citizenship in the event he were 
separated with a less than honorable conditions discharge.

	i.  On 31 October 2011, while the applicant was assigned to a Group Support 
Battalion at Joint Base Lewis McChord (JBLM), WA, CID received a USCIS report 
indicating the applicant may have fraudulently enlisted.  Between 2 and 8 November 
2011, CID contacted agents from Customs and Border Patrol (CBP) and USCIS, who 
provided the following:  

*	The applicant entered the U.S. on a student visa; the rule was, if not attending 
school, a nonimmigrant would have to leave the U.S. within 60 days; when 
there was a pending petition to adjust immigration status, however, a 
nonimmigrant could not be deported
*	The applicant arranged to remain in the U.S. through a fraudulent marriage to 
Ms. T__ M. L__, but when that began to fall apart, the applicant joined the 
Army under the MAVNI program
*	USCIS confirmed the applicant and Ms. T__ M. L__ were part of a marriage 
fraud ring involving Ms. K__ T__ and Mr. H__ N__; while Ms. K__ T__ and 
Mr. H__ N__ were both prosecuted, no charges were brought against either 
the applicant or Ms. T__ M. L__
*	On 17 June 2008, Ms. T__ M. L__ withdrew her application pertaining to the 
applicant's permanent residence; she had cooperated in USCIS's 
investigation into the marriage fraud ring

	j.  On 13 December 2011, the CID interviewed the applicant, and he provided the 
following in a sworn statement:

		(1)  He affirmed he was married to Ms. T__ M. L__ from October 2007 to 
December 2010; he met his former spouse at a jewelry store in San Francisco; the 
applicant noted "Ed__ Pl__ had friends there," and the owner of the jewelry store was 
Mr. Ed__ Pl__'s sister-in-law. 

		(2)  The applicant confirmed he had already applied for a green card, based on 
his marriage to a U.S. citizen (Ms. T__ M. L__), but the application was still pending.

		(3)  Because his former spouse was a drug user and had drug-induced mental 
problems, the applicant stated he could not live with her.  On 14 June 2008 (2 days 
before the ICE interviews of the applicant and his now-former spouse), Ms. T__ M. L__ 
disturbed one of their neighbors; she then asked the applicant to call the police, after 
which they went to the emergency room.  On 15 June 2008, the applicant and Ms. T__ 
M. L__ picked up her mother from the airport.  Although they had initially planned on 
staying at the applicant's apartment, Ms. T__ M. L__ and her mother ended up going to 
a local motel instead (the landlord had kicked them out).  On 16 June 2008, ICE agents 
came to the applicant's apartment and rudely questioned him; he was half-asleep and 
nervous during the interview.  

		(4)  The applicant stated he told the ICE agents he loved Ms. T__ M. L__ and 
she loved him; she wanted to stay with him and that was why they married.  After they 
married, Ms. T__ M. L__ supported his citizenship application; he was never told she 
withdrew her support on 17 June 2008.  The applicant also could not explain why Ms. 
T__ M. L__ told the ICE agents he had agreed to pay her $4,000 to get a green card.  
He acknowledged giving her some money ($30 several times); he also provided clothes, 
soda, and two cellphones.  He denied ever agreeing to pay Ms. T__ M. L__ $4,000.

		(5)  He admitted knowing Ms. K__ T__ because she was a friend of Mr. Ed__ 
Pl__, but the applicant claimed not to know Mr. H__ N__.  The applicant also 
acknowledged he got married at the Oakland courthouse because Mr. Ed__ Pl__ told 
him it would be easier there.  He stated he never paid Ms. K__ T__, Mr. H__ N__, or 
anyone to facilitate a fraudulent marriage.  He additionally declared he never entered 
the names of his in-laws as W__, Mi__ or W__, Me__ on the SF 86.  He enlisted under 
the MAVNI program because he wanted a stable job, sought to gain military experience, 
and he liked the U.S. and having U.S. citizenship.  

	k.  On 5 April 2012, a master sergeant (MSG) counseled the applicant, stating the 
command had received information the applicant may have fraudulently enlisted; as a 
result, the command was required to initiate separation action.  The MSG confirmed 
no decision had yet been made with regard to the proposed separation.  The applicant 
indicated he agreed with the counseling.

	l.  On 18 April 2012, CID finalized its report of investigation; CID established 
probable cause for fraudulent enlistment, as a result of the applicant's fraudulent 
marriage, and false official statement, which was based on erroneous entries on the 
applicant's SF 86.  CID concluded the applicant committed the alleged offenses to avoid 
deportation.  
	m.  In an undated MFR, the judge advocate for the applicant's battalion summarized 
the case against the applicant:

		(1)  The MFR detailed the applicant's alleged involvement with a marriage fraud 
ring in San Francisco (run by Ms. K__ T__ and Mr. D__ N__ (sic, Mr. H__ N__)), and 
confirmed the applicant had married Ms. T__ M. L__.  Ms. K__ T__ and Mr. H__ N__ 
were later convicted of multiple violations of Federal immigration law, and the applicant 
was never prosecuted; USCIS indicated the Department of Justice, in effect, did not 
want to invest resources into prosecuting the applicant, whom they considered a "little 
fish."

		(2)  At the time the applicant entered the Army, he presented his EAD to his 
Army recruiter; the applicant was then accessed under the MAVNI program.  USCIS 
subsequently forwarded the applicant's case file to CID for action.  The applicant 
withdrew his marriage residency application on 5 December 2010, following his divorce, 
and then filed for U.S. citizenship using his membership in the MAVNI program as the 
basis.  

		(4)  The battalion judge advocate opined, when the applicant enlisted, he 
concealed the fact his conditional residence in the U.S. was not valid, because his visa 
was based on a fraudulent marriage.  Thereafter, the applicant lied to CID about his 
marriage.

	n.  In an undated memorandum, the applicant's JBLM commander advised him of 
his intent to separate the applicant under paragraph 7-17, AR 635-200.  

		(1)  The reasons for this action were:  

		(a)  The applicant procured his enlistment through deliberate and material 
misrepresentation, omission, or concealment of information that, if known by the Army, 
might have resulted in rejection.  Specifically, that the applicant falsely represented he 
was legally residing in the U.S. based upon a valid visa, which, in turn, had resulted 
from a fraudulent marriage.  With this false representation, the applicant procured his 
enlistment into the Army as a SPC, and, thereafter at JBLM, received pay and 
allowances while serving as an enlisted Soldier.

		(b)  On 13 December 2011, and with the intent to deceive, the applicant made a 
false official statement to CID by stating he never paid anyone money for his marriage 
to Ms. T__ M. L__.

		(2)  On 9 May 2012, the applicant acknowledged receipt and affirmed his 
commander had informed him of the basis for the contemplated separation action.  He 
further stated he had been advised of his right to consult with counsel prior to submitting 
his Election of Rights; unless an extension was granted, a failure to respond within 
7 days would constitute a waiver of his rights.

		(3)  The applicant's separation packet does not include his Election of Rights.

	o.  In a second undated MFR, the battalion judge advocate stated:

		(1)  Per paragraph 7-17, AR 635-200, the commander was required to determine 
whether the applicant's previously concealed information was, in fact, disqualifying for 
enlistment.  A Soldier who did not meet citizenship requirements had to be processed 
for separation; to be a member of the MAVNI program, the applicant needed to have a 
legal immigration status at enlistment.  The applicant concealed the fact that his 
conditional permanent residence was obtained via a fraudulent marriage; the applicant's 
actions made it appear he was a lawful immigrant alien.

		(2)  The commander also had to verify the existence and truthfulness of the 
disqualifying information, as documented in USCIS and CID reports.  Once the 
fraudulent enlistment was verified, the commander was to suspend the applicant's pay 
and allowances, and the separation authority was to direct the applicant's discharge.

	p.  On 14 June 2012, the applicant's Group commander (also the separation 
authority) provided his determinations regarding the applicant’s fraudulent entry in an 
MFR, Subject:  [applicant] Incident of Fraudulent Entry Determinations and Findings:

		(1)  In accordance with chapter 7 (Defective Enlistments/Re-enlistments and 
Extensions), AR 635-200, the Group commander made the following determinations, 
based on USCIS and CID investigations:

		(a)  That the applicant "concealed information that his conditional permanent 
residence in the United States at the time of enlistment was not valid because his 
temporary marriage visa was procured by a fraudulent marriage.  In order to effect the 
fraudulent marriage, [applicant] violated 18 U.S. Code, section 371 (Conspiracy to 
Commit Offense or to Defraud the United States); 8 U.S. Code, section 1325(c) 
(Immigration Marriage Fraud); and 18 U.S. Code, section 1546(a) (Using False 
Statement(s) to Obtain (a) Green Card)."

		(b)  That the applicant "did not meet citizen requirements when he enlisted, and 
that this requirement was of a disqualifying nature.  In making this determination, (he) 
considered AR 601-2810 (sic, AR 601-210 (Active and Reserve Components Enlistment 
Program)), para 2-4 (Citizenship) and 4-22 (Nonwaivable Medical, Conduct, and 
Administrative Disqualifications), and (Title) 10 U.S. Code, section 504 (Persons not 
Qualified) and Memorandum, Deputy Chief of Staff, 28 January 2009, Subject:  MAVNI 
Pilot Program Implementation Policy."
		(c)  That the applicant "enlisted through the MAVNI program on 28 Jul 09.  The 
Army believed he was authorized to participate in the program because he falsely 
represented he was legally in the U.S. by possessing a temporary visa procured by a 
bona fide marriage to a U.S. citizen.  The MAVNI program is only open to individuals 
who have had a valid immigration status for 2 years prior to enlistment.  [Applicant]'s 
immigration status was not valid."

		(2)  The Group commander affirmed he had verified the existence and 
truthfulness of the disqualifying information, as indicated by the investigative reports.

	q.  On a date prior to 22 June 2012, the separation authority (applicant's Group 
commander) approved the unit commander's recommendation and directed the 
applicant's general discharge under honorable conditions.  Orders, dated 22 June 2012, 
directed the applicant to report to the U.S. Army Transition Point on 29 June 2012.  

	r.  On 29 June 2012, the applicant was separated with a general discharge under 
honorable conditions; his DD Form 214 shows he completed 2 years, 9 months, and 
14 days of his 4-year and 25 weeks enlistment contract.  He was awarded or authorized 
the National Defense Service Medal and the Army Service Ribbon.  His DD Form 
214 also showed the following additional information:

*	Item 25 (Separation Authority) – AR 635-200, chapter 7, section V (sic, 
section IV (Fraudulent Entry))
*	Item 26 (Separation Code (SPD)) – JDA
*	Item 27 (RE Code) – RE-3 (Waiver Required to Reenlist)
*	Item 28 (Narrative Reason for Separation) – Fraudulent Entry

	s.  On 29 June 2013, the applicant petitioned the ADRB, requesting an upgraded 
character of service and a change in the narrative reason for separation from fraudulent 
entry to reduction in force.  He essentially argued his commanders thought he 
committed fraudulent enlistment because of an investigation; however, the result of that 
investigation ended up being favorable.  On 26 March 2014, the ADRB conducted a 
records review and determined the applicant's discharge was proper and equitable.  

		(1)  The ADRB's Case Report and Directive listed the following documents 
obtained from the applicant's record:

*	MFR, dated 14 June 2012, Subject:  [applicant] Incident of Fraudulent 
Entry Determinations and Findings
*	MFR, undated, Subject:  [applicant] Incident of Fraudulent Entry; 
Executive Summary of Evidence, signed by the battalion judge advocate
*	Negative counseling statement, dated 5 April 2012
*	CID Report, dated 18 April 2012, which included seven relevant 
documents:  applicant's PAI/PEI Report, dated 28 July 2009; SF 312, 
dated 21 April 2010; USCIS Form N-400, dated 28 January 2010; two 
separate Forms G-325A (Biographic Information), dated 25 January 2008 
and 23 January 2008;
*	(continued CID Report documents):  Form I-130, Petition for Alien 
Relative, dated 23 January 2008; County Superior Court divorce decree, 
dated 10 December 2010; and DHS report of investigation, dated 30 
June 2008
*	Memorandum, dated 10 June 2009, Subject:  Assignment of Select 
Foreign Born Soldiers to Units of the USASOC
*	Email correspondence, dated between May and June 2012, Subject:  
Follow/Up/[applicant]

		(2)  The ADRB found the applicant did not provide any independently 
corroborating evidence showing his command's action was erroneous or that the 
applicant's service mitigated his misconduct.  

		(a)  As to the applicant's insistence his marriage was not fraudulent, this 
assertion was contradicted by the evidence of record; moreover, barring substantial and 
credible evidence to the contrary, there was a presumption of regularity in the conduct 
of governmental affairs.  The applicant bore the burden of overcoming this presumption, 
but the evidence he offered was insufficient.  

		(b)  Regarding the applicant's request to change the narrative reason for 
separation, the applicant's DD Form 214 correctly stated why he was separated.

		(c)  The applicant insisted he had good service and submitted certificates of 
appreciation, but the ADRB determined the applicant's evidence did not mitigate the 
reason for his separation.  The applicant further advised the ADRB he had been granted 
U.S. citizenship after his discharge; the ADRB stated a review of the applicant's overall 
service record, along with the reasons for his separation, led the ADRB to conclude his 
subsequent naturalization was not enough overcome his fraudulent enlistment.

		(d)  The ADRB addressed the four notarized affidavits, dated in July and August 
2008, presented as evidence by the applicant; although the writers claimed personal 
knowledge of the applicant's marital relationship, the statements appeared to have been 
generated as part of an investigation that pre-dated the applicant's enlistment, and the 
ADRB did not find them compelling enough to overcome the presumption of regularity.

		(e)  The ADRB stated the applicant's record did not contain any indication or 
evidence of arbitrary or capricious actions by the applicant's command, and all 
requirements of law and regulation were met. 
	t.  On 1 August 2016, the applicant filed a second petition with the ADRB, requesting 
a personal appearance with counsel to obtain a upgraded discharge, amended narrative 
reason for separation, and a revised reentry eligibility code.  Through counsel, the 
applicant claimed the investigation into his fraudulent entry was incomplete and was 
based on an assumption he knowingly and intentionally procured his enlistment through 
fraud.  Rather than waiting for the finalization of the investigation, the applicant's chain 
of command unjustly separated him; the applicant contended, in effect, USCIS cleared 
him of wrongdoing and granted him U.S. citizenship.  On 8 May 2017, the applicant 
personally appeared before the ADRB; the ADRB unanimously voted to deny the 
applicant's requests.  The ADRB referred to the same documentary evidence previously 
obtained from the applicant's service record and used in its earlier review of the 
applicant's case (AR20130012817). 

		(1)  The ADRB considered the applicant's testimony, his entire service record, 
the reasons for discharge, and his post-service accomplishments; it did not find enough 
evidence to overcome the reasons for separation and characterization of service. 

		(2)  In addition, the ADRB stated the applicant's record did not contain any 
indication or evidence of arbitrary or capricious actions by the applicant's leadership.  
The applicant's discharge was consistent with the procedural and substantive 
requirements of the regulation, was within the discretion of the separation authority, and 
the applicant received full administrative due process.

5.  According to the version of AR 601-210 (Active and Reserve Components 
Enlistment Program) effective when the applicant enlisted, only legal aliens who had 
been admitted into the U.S. for permanent residence were authorized to enlist.  

	a.  In November 2008, the Secretary of Defense approved the MAVNI program, 
which provided for an exception to the regulation's citizenship requirements.  One 
purpose of the program was to recruit legal nonimmigrant aliens with expertise in 
specific languages; Chinese was one of those languages.  

	b,  In February 2009, the U.S. Army Recruiting Command implemented MAVNI as a 
pilot program.  MAVNI eligibility requirements included:

*	Status as an asylee, refugee, or Temporary Protected Status, or having in 
one of 19 nonimmigrant categories (a nonimmigrant is a foreign national who 
enters the U.S. on a temporary basis for tourism, business, or to study); 
nonimmigrants with "F" (student) visas were eligible for this program
*	Being in one of the above-mentioned statuses for at least 2 years immediately 
prior to enlistment
*	No single absence from the U.S. of more than 90 days during the last 2 years 
before enlisting
6.  During the applicant's era of service, commanders were required to initiate 
separation action against Soldiers who had fraudulently enlisted into the Army.  

	a.  AR 635-200, in effect at the time, defined fraudulent entry as the procurement of 
an enlistment through any deliberate material misrepresentation, omission, or 
concealment of information which, if known and considered by the Army at the time of 
enlistment or re-enlistment, might have resulted in rejection.  

	b.  Section IV of Chapter 7, AR 635-200, specified two tests, which commanders had 
to apply in order to determine whether separation was appropriate; any incident that met 
the below-listed two tests could be the basis for a fraudulent entry separation.

		(1)  First Test – determine if previously concealed information is, in fact, 
disqualifying, applying the criteria outlined in AR 601-210.  Any waivable or non-
waivable disqualification concealed, omitted, or misrepresented was fraudulent entry.  

		(2)  Second Test – verify the existence and true nature of the apparently 
disqualifying information; if a Soldier alleged he/she was convicted of burglary and 
placed on probation, inquiries had to be made as to whether the Soldier was actually 
convicted of burglary.  In fact, the Soldier may have initially been charged with burglary, 
but the charge was later reduced to a non-disqualifying minor non-traffic offense. 

	c.  When court-martial charges were not pending or contemplated, commanders 
could separate the Soldier for fraudulent entry using the notification procedure, so long 
as the circumstances did not warrant an under other than honorable conditions 
discharge.  

	d.  The notification procedure instructed commanders to give the Soldier a written 
notice of the proposed separation, the type of separation, the reason for the 
commander's action, and the Soldier's rights under the regulation; those rights included:  
consultation with military counsel, submission of statements in his/her own behalf, 
copies of documents to be sent to the separation authority, and the ability to waive the 
aforementioned rights in writing.  On a document titled, Election of Rights, the Soldier 
was to indicate whether he/she had consulted with counsel, was submitting matters in 
his/her own behalf, and what rights he/she was asserting or waiving.  The notification 
procedure did not include the right to present his/her case before an administrative 
separation board; in addition, Soldiers whose combined active duty and Reserve 
Component service totaled was less than 6 years were not entitled to an administrative 
separation board.

7.  The "Due Process Clause" appears in both the 5th and 14 amendments of the U.S. 
Constitution, and it essentially prohibits the government from depriving a person's life, 
liberty, or property without giving him/her notice, providing him/her the opportunity to be 
heard, and permitting the final result to be determined by a neutral decision-maker.  The 
5th amendment addresses two aspects of due process:  procedural, concerned with 
how legal proceedings are conducted, and substantive, dealing with the content of law 
as they are applied in legal proceedings.  The 14th amendment states, "...nor shall any 
State deprive any person of life, liberty, or property, without due process of law."

8.  AR 635-200 states secretarial plenary separation authority is the prerogative of the 
Secretary of the Army; as such, it should be used sparingly and exercised only when, 
on a case-by-case basis, no other provision of the separation regulation applies.

9.  AR 635-5 (Separation Documents), then in effect, stated entries in items 26 and 
28 of the DD Form 214 were based on separation authority; according to 
AR 635-5-1 (SPD), when the separation authority was based on chapter 7, AR 635-200, 
fraudulent entry, "JDA" was the correct SPD, and "Fraudulent Entry" was the associated 
narrative reason for separation.  The source for item 27 is AR 601-210, and the SPD/RE 
Code Cross Reference Table was used to find the appropriate RE code, based on the 
SPD; the SPD "JDA" had a corresponding RE code of "3."

10.  The Administrative Procedure Act (APA) was enacted by Congress in 1946 and 
governs the operation of administrative agencies within the Federal government.  The 
Act's purposes are to ensure agencies keep the public informed and offer opportunities 
for public participation in the rule-making process, prescribe uniform standards for the 
conduct of formal rule-making and adjudicatory proceedings, and the APA restates the 
law of judicial review.  The APA further grants U.S. Federal Courts oversight authority of 
Federal agencies.  

	a.  Section 558 (Imposition of Sanctions; Determination of Applications for Licenses; 
Suspension, Revocation, and Expiration of Licenses), addresses the exercise of power 
or authority by government agencies; it states, "a sanction may not be imposed or 
substantive rule or order issued except within jurisdiction delegated to the agency and 
as authorized by law."  

	b.  Chapter 7 (Judicial Review).  A person is entitled to a judicial review (i.e. a 
reconsideration by a Federal court) when an agency's actions have caused him/her to 
incur a legal wrong.  The reviewing court decides relevant questions of law, interprets 
constitutional and statutory provisions, and determines the meaning or applicability of 
the terms of an agency's action.  Actions by the reviewing court can include setting 
aside an agency's actions, findings, and conclusions when the court finds the agency 
abused its discretion, acted in a manner that was arbitrary and capricious, or otherwise 
failed to comply with the law.


11.  U.S. Court of Appeals case, Bark v. Immigration and Naturalization Service (INS), 
was decided in 1975; the petitioner had been denied an immigration status adjustment 
from student to permanent resident because INS claimed the petitioner's marriage was 
a sham (i.e. fraudulent).  The court found INS based its determination solely the fact the 
petitioner and his wife had separated; the court stated a marriage can be considered a 
sham if the bride and groom did not intend to establish a life together at the time they 
married.  The conduct of the petitioner and his wife after marriage only mattered if 
reflected the couple's subjective state of mind at the time of the marriage, and evidence 
of separation, by itself, was not enough to substantiate the marriage was not bona fide.

12.  Harvard Law Review, Volume 99 (April 1986) included an article entitled, The 
Constitutionality of the INS Sham Marriage Investigation Policy.  The article essentially 
argued the manner in which was INS investigating marriages between nonimmigrant 
aliens and U.S. citizens/permanent residents was intrusive; the article contended either 
courts or the U.S. Congress should implement procedural safeguards to ensure privacy 
rights were balanced with legal requirements.  In its description of sham marriages, the 
article posited the sham marriage could either be contractual (both parties agree to 
marry solely for immigration purposes) or unilateral (where the nonimmigrant alien 
deceives the unsuspecting U.S. citizen/permanent resident into marrying).  

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, regulatory and legal requirements, and published DoD 
guidance for consideration of discharge upgrade requests.  The Board noted the facts 
presented above.  The Board noted that the applicant’s discharge for fraudulent entry 
had a number of command and legal reviews as cited in paragraph 4m through 4p 
above.  The Board noted that the CID investigation established probable cause for 
fraudulent enlistment, as a result of the applicant's fraudulent marriage, and false official 
statement, which was based on erroneous entries on the applicant's SF 86.  CID 
concluded the applicant committed the alleged offenses to avoid deportation.  The 
Board noted that the USCIS investigation found that the applicant did not meet the 
residency requirement for remaining in the US after his student visa ended, was unable 
to confirm that the applicant has maintained a continuous legal status for the previous 
two year period prior to enlisting for MAVNI, that he entered in a fraudulent marriage to 
remain in the US, and when that began to fall apart, the applicant joined the Army under 
the MAVNI program by providing false statements.

2.  The Board considered each of the applicant’s contentions that his discharge for 
fraudulent entry was unjust and the result of numerous errors committed against him by 
the Army and the ADRB.  The applicant offers 9 arguments in support of his claims 
which are discussed in subparagraphs a through f below:

	a.  The Army lacked jurisdiction to determine whether his marriage was fraudulent.  

		(1)  The term "jurisdiction" applies to the exercise of legal/judicial authority; 
separations under AR 635-200 are administrative in nature, and its authority is based on 
applicability rather than jurisdiction.  AR 635-200 is a regulation that is applicable to all 
active duty enlisted Soldiers, and, at the time of his separation, section III (Separation 
Authority) the regulation's chapter 1 (Purpose) gave the applicant's Group commander 
the authority to approve the applicant's separation action.

		(2)  An administrative inquiry, such as one conducted under chapter 7, 
AR 635-200, was not bound by judicial standards; such an inquiry was not intended to 
determine guilt or innocence, and neither judicial rules of evidence nor beyond-a-
reasonable-doubt standards of proof applied.  The regulation limited the separation 
authority's inquiry to an administrative determination of whether there was potentially 
disqualifying information and if the applicant misrepresented, omitted, or concealed it.  
In conducting this inquiry, the separation authority was empowered to use all available 
evidence (to include hearsay), and to employ a preponderance of evidence standard of 
proof (i.e. where the weight of the evidence presented is greater than 50-50).  

		(3)  The applicant's assertion as the Army's lack of authority hinges on the fact 
his allegedly fraudulent marriage occurred before he entered the Army; however, all 
fraudulent entry determinations necessarily involve potentially disqualifying events that 
took place before an enlistment.

	b.  The applicant asserts his circumstances mirror the regulatory example cited in 
the second test in paragraph 7-17.  He argues case law and the APA require the 
ABCMR to consistently decide similar cases or provide distinguishing reasons why it 
determined one applicant's request was different from another.  Additionally, the ADRB 
did not follow AR 635-200, in that it did not ensure the proper application of the second 
test in paragraph 7-17, AR 635-200, and failed to conduct an inquiry, which would show 
the applicant was not convicted of fraudulent marriage.

		(1)  The Soldier in the second test example disclosed he might have been 
convicted of a disqualifying crime; a commander's inquiry found the Soldier was 
convicted of a lesser, non-disqualifying offense instead.  The evidence of record and the 
applicant's statements do not affirm the applicant ever told the Army he was previously 
under DHS/DOJ scrutiny for possible immigration law violations, or that his then-spouse 
had admitted to committing marriage fraud when she and the applicant wed.  At the time 
of his enlistment, paragraph 4-2 (Moral and Administrative Disqualifications), 
AR 601-210, required recruiters to conduct a suitability determination when there was 
an indication a potential enlistee had a criminal history; this determination was 
mandated regardless of disposition, even for cases where the enlistee was released 
without prosecution.  The evidence of record does not reflect the applicant underwent a 
suitability review prior to enlisting.

		(2)  The applicant argues, contrary to the second test example where the Soldier 
was convicted, DHS/DOJ never filed charges against him for marriage fraud, and, 
because the 5-year statute of limitations lapsed in October 2012, they never will.  The 
applicant additionally provides evidence that, in 2013, USCIS approved him for U.S. 
citizenship.  USCIS's action followed the applicant's citizenship request, which he 
submitted while on active duty, and for which the basis was his military service; in 
addition, it came after the applicant's lawsuit against USCIS was settle in his favor.  
On 23 May 2013, he was naturalized as a U.S. citizen.

		(a)  The final CID report of investigation stated CID and USCIS had sufficient 
evidence to establish probable cause the applicant had committed fraudulent entry 
when he fraudulently married Ms. T__ M. L__ to avoid deportation. 

		(b)  The battalion judge advocate's memorandum, Subject:  [applicant] Incident of 
Fraudulent Entry; Executive Summary of Evidence, stated USCIS "indicate(d) that the 
DOJ did not want to utilize resources to go after a 'little fish.'"

	c.  The applicant contends, while his unit commander used an allegation of false 
official statement as one reason for separation action, the separation authority did not 
address it.  

		(1)  Despite the applicant's unit commander's reference to a false official 
statement, the separation notification only cited the regulation's provision for fraudulent 
entry (paragraph 7-17).  

		(2)  The rendering a false official statement with the intent to deceive is serious 
misconduct and violates Article 107 (False Official Statements), Uniform Code of 
Military Justice (UCMJ).  Because the UCMJ's maximum punishment for this offense 
includes a punitive discharge, the commander could have used it as a basis for a 
misconduct separation under paragraph 14-12c (Commission of a Serious Offense), 
AR 635-200; the commander did not include this provision to support his discharge 
recommendation.

	d.  The applicant contends he met citizen requirements when he enlisted; the Army 
cannot prove its reasons and findings and lacked convincing evidence to support his 
separation.  

		(1)  In his determination memorandum, dated 14 June 2012, the separation 
authority states, "[applicant] did not meet citizen requirements when he enlisted, and 
that this requirement (was) of a disqualifying nature for enlistment."  In reaching this 
finding, the separation authority would have applied the preponderance of evidence 
standard of proof; an underlying misconception in the applicant's argument is that the 
evidence being considered by the separation authority had to be proved beyond a 
reasonable doubt.  

		(2)  The evidence of record reflects the following recapitulation of events that 
would have been available for the separation authority's review:

*	The applicant entered the U.S. in a nonimmigrant status using an 
F-1 (student) visa; his F-1 status was extended until 31 January 2008 due to 
the approval of OPT
*	Around August/September 2007, the applicant met Ms. T__ M. L__; after 
meeting 8 times, they agreed to marry; the applicant has maintained he 
married for love; Ms. T__ M. L__ said they mutually agreed the applicant 
would pay her money in exchange for her help in securing a green card
*	On 23 October 2007, the applicant and Ms. T__ M. L__ married at an 
Oakland county clerk's office; the country clerk alerted ICE about suspicious 
marriages involving a Mr. H__ N__; of the marriage certificates reviewed by 
ICE, two had the same witness, and one of those was the applicant's
*	On 23 January 2008 (8 days before the applicant's OPT expired), Ms. T__ M. 
L__ filed a USCIS Form I-130 (Petition for Alien Relative); Ms. T__ M. L__ 
listed an address in Daly City, CA as their joint residence
*	On 17 June 2008, ICE agents executed search and arrest warrants because 
of allegations Ms. T__ M. L__ was involved in a fraudulent marriage arranged 
by Ms. K__ T__ (ultimately convicted with Mr. H__ N__ of conspiracy to 
commit marriage fraud); ICE agents went to the applicant's Daly City address
*	The applicant's Daly City landlord, Ms. B__ R__ Wa__, told ICE the applicant 
had been living there for 3 months, but Ms. T__ M. L__ never resided there 
*	Ms. B__ R__ Wa__ later affirmed, in a 20 July 2008 affidavit, she had 
personal knowledge of the applicant's "bona fide marriage"; she stated the 
applicant and Ms. T__ M. L__ began living at her apartment building in 
December 2007; she saw them doing household chores together
*	On 17 June 2008, ICE agents questioned the applicant; he told ICE, after 
they married, Ms. T__ M. L__ moved into their Daly City residence, but left 
shortly thereafter due to "lifestyle problems"; ICE checked the applicant's 
closet and found variously-sized women's clothing, some with store tags
*	On 17 June 2008, ICE located Ms. T__ M. L__ at a motel; an ICE agent 
heard her talking on the phone to someone she later identified as Mr. E__ 
P__ and saying, "Whatever you have me set up in, come get me... tell him to 
give me my $17,000... tell him to empty his bank account and call it even"
*	Ms. T__ M. L__ then told ICE, after meeting with the applicant about 8 times, 
the applicant proposed getting married so he could get a green card; she 
confirmed the applicant still owed her money for the marriage; she said she 
learned how to do marriage fraud from Mr. E__ P__ and Ms. K__ T__
*	Ms. T__ M. L__'s friend, Mr. S__ C__, said he witnessed arguments about 
money between the applicant and Ms. T__ M. L__; the applicant would say 
he gave the money to Ms. K__ T__, he also heard Mr. E__ P__ say he was 
sorry for getting Ms. T__ M. L__ involved in a fake marriage to the applicant
*	In April 2009, Ms. K__ T__ and Mr. H__ N__ were convicted of conspiracy to 
commit marriage fraud
*	In or around June 2009, the applicant offered the recruiter his EAD as proof of 
his valid immigration status; USCIS told the Army recruiter the EAD appeared 
valid, but it expired in May 2010 and the applicant was pending a status 
change 
*	On 28 July 2009, the applicant completed an SF 86, in which he stated he 
was in a nonimmigrant status; he listed Ms. T__ M. L__ as his spouse and 
provided the names and addresses of his in-laws (both were Chinese with 
addresses in China) 
*	On 28 July 2009, he enlisted into the USAR DEP under the MAVNI program
*	On 31 October 2011, CID received a USCIS report indicating the applicant 
may have fraudulently enlisted
*	Per subsequent conversations with USCIS and CBP agents, CID learned the 
applicant would have been required to leave the U.S. because he was not 
attending school and his OPT had expired; he could not be deported, 
however, while his U.S. citizenship petition was pending

	e.  The Army violated the applicant's due process rights by not allowing him to 
present his case to either an administrative separation board and/or a court-martial.  He 
also asserts there was no proof the evidence he submitted was ever considered by the 
separation authority. 

		(1)  By regulation, Soldiers with less than 6 years total active duty and Reserve 
Component service were not entitled to present their case before an administrative 
separation board.  In addition, the regulation stipulated the commander's use of the 
notification procedure when the circumstances did not warrant an under other than 
honorable conditions character of service.  

		(2)  Among the rights available to Soldiers under the notification process were 
the right to consult with military counsel and to submit statements in his/her own behalf.  
After consulting with counsel, the regulation indicated the Soldier was to complete and 
sign the Election of Rights, and submit any evidence he/she wanted the separation 
authority to consider; this document, along with the Soldier's evidence, was to be 
included in the Soldier's separation packet.  In the applicant's case, the separation 
packet is void of his Election of Rights document and the evidence he contends he 
submitted.  
	f.  The USCIS case officer gave improper instructions and USCIS behaved 
unreliably during the applicant's discharge case.  The applicant asserts USCIS bore the 
responsibility for providing a definition of marriage that included the intent "to establish a 
life together" with Ms. T__ M. L__ when they married.  He posits, a marriage could not 
be deemed fraudulent if at least one of the parties (in this case, the applicant) married 
with the intent to establish a life together, and this was true even when the "couple did 
not live together, and a matchmaker arranged this marriage for immigration purpose, 
and there was money was involved."

		(1)  The separation authority affirmed he evaluated evidence provided by 
CID and USCIS reports of investigation; he did not indicate he referred to information 
provided by the applicant's USCIS case officer.  

		(2)  The evidence included in the CID and USCIS reports of investigation would 
have allowed the separation authority to determine whether, at the time of his marriage, 
the applicant intended to establish a life with Ms. T__ M. L__.  On 14 June 2012, the 
separation authority stated he found sufficient evidence to show the applicant's 
immigration status was invalid at the time of his enlistment, and this fact was 
disqualifying.  

3.  As a result of this thorough review noted above, the Board found insufficient 
evidence of in-service mitigation to overcome the misconduct of fraudulent entry and 
found that the general under honorable conditions character of service equitable under 
the circumstances.  Based on a preponderance of evidence, the Board determined that 
there was no error or injustice in the applicant’s reason and authority for discharge for 
fraudulent entry, separation code, RE code, and general under honorable conditions 
character of service.  The Board found that relief is not warranted.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 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, USC, 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 ABCMR determines it would be in the 
interest of justice to do so.

2.  AR 635-200, in effect at the time, prescribed policies and procedures for enlisted 
administrative separations; it was applicable to all Regular Army enlisted personnel.

	a.  Section III (Separation Authority), Chapter 1 (General Provisions), stated 
commanders with special court-martial convening authority were authorized to approve 
or disapprove separation for chapter 7, unless an under other than honorable conditions 
discharge was warranted.

	b.  Section I (Notification Procedure), Chapter 2 (Procedures for Separation) outlined 
the requirements of the notification procedure.  

		(1)  The notification procedure instructed commanders to give the Soldier a 
written notice of the proposed separation, which specified the type of separation, the 
reason for the commander's action, and the Soldier's rights under the regulation; those 
rights included:  consultation with military counsel, submission of statements in his/her 
own behalf, copies of documents to be sent to the separation authority, and the ability to 
waive the aforementioned rights in writing. 

		(2) On a document titled, Election of Rights, the Soldier was to indicate whether 
he/she consulted with counsel, was submitting matters in his/her own behalf, and what 
rights he/she was asserting or waiving.  The notification procedure did not include the 
right to present his/her case before an administrative separation board; in addition, 
Soldiers whose combined active duty and Reserve Component service totaled was less 
than 6 years were also not entitled to an administrative separation board.

	c.  Paragraph 3-7a (Honorable Discharge).  An honorable discharge was a 
separation with honor and entitled the recipient to benefits provided by law.  The 
honorable characterization was appropriate when the quality of the member's service 
generally met the standards of acceptable conduct and performance of duty for Army 
personnel or was otherwise so meritorious that any other characterization would be 
clearly inappropriate.

	d.  Paragraph 5-3 (Secretarial Plenary Authority).  Secretarial plenary separation 
authority is the prerogative of the Secretary of the Army; as such, it should be used 
sparingly and exercised only when, on a case-by-case basis, no other provision of the 
separation regulation applies..  

	e.  Section IV (Fraudulent Entry), Chapter 7, pertained to the procurement of an 
enlistment through any deliberate material misrepresentation, omission, or concealment 
of information.  If the Army had known and considered this information at the time of 
enlistment, rejection might have resulted; this included all disqualifying information 
requiring a waiver.  Commanders were to apply the following tests for each case of 
suspected fraudulent enlistment:

		(1)  First Test – commanders were to determine if previously concealed 
information was, in fact, disqualifying; this information was to be evaluated using the 
criteria for enlistment in AR 601-210 (Regular Army and Army Reserve Enlistment 
Program).  Any waivable or nonwaivable disqualification concealed, omitted, or 
misrepresented constituted fraudulent entry.  This included concealing information with 
alleged or actual recruiter connivance.  If, however, the newly revealed information did 
not amount to a disqualification, then there was no fraudulent enlistment.  

		(2)  Second Test – commanders had to verify the existence and true nature of 
the apparent disqualifying information.  Verification of the actual offense might reveal no 
disqualification, and thus not constitute fraudulent entry.  For example, if the Soldier 
alleged a conviction for burglary and placement on probation, commanders were to 
inquire as to whether a court actually convicted him/her.  Commanders could determine, 
while the initial charge was burglary, civilian authority reduced the charge to trespass (a 
minor, non-traffic offense for enlistment purposes).

		(3)  Any incident that met the foregoing two tests could be cause for fraudulent 
entry separation.  An example of fraudulent entry was the concealment of the Soldier's 
true citizenship status and concealment of other disqualifications.  

		(4)  Upon receipt of the unit commander's separation request, the separation 
authority determined whether fraudulent entry was verified and proven.  If verified, the 
separation authority was to take action to suspend the Soldier's pay and allowances.  
The separation authority also directed the Soldier's discharge and the issuance of an 
honorable or under honorable (general discharge) character of service.  In determining 
the character of service, the separation authority was to assess the evidence of 
preservice misrepresentation, which would have precluded, postponed, or otherwise 
affected the Soldier's enlistment.  In addition, because fraudulent enlistment was an 
offense under the UCMJ (Article 83), and based upon acceptance of pay and 
allowances, such improper acceptance of pay was as an "in-service" activity that 
separation authorities could factor into the character of service determination.

3.  AR 601-210, in effect in July 2009, prescribed policies and procedures of the 
enlistment of Regular Army and U.S. Army Reserve enlistees/applicants.

	a.  Chapter 2 (Enlistment in the Regular Army. Army Reserve, or Army National 
Guard for Non-Prior Service Applicants) outlined enlistment considerations.  Paragraph 
2-2 (Basic Eligibility Criteria for All Non-Prior Service Applicants), listed citizenship as a 
criteria:

		(1)  An applicant was eligible if he/she was:
*	U.S. Citizen
*	Alien lawfully admitted into the U.S. for permanent residence
*	National of the U.S.
*	Citizens (including naturalized citizens) of the Federated States of Micronesia, 
Palau, and the Republic of the Marshall Islands
*	U.S. Citizen by adoption

		(2)  Permanent residents had to present their I-551 (Permanent Residence Card) 
as proof they had been admitted into the U.S. for permanent residence.  The regulation 
does not list any other USCIS forms use as verification documents.

	b.  Table 3-1 (U.S. Army Reentry Eligibility Codes) showed RE codes; this table is 
extracted from the version of the regulation in effect in June 2012:

*	"RE-1" applied to Soldiers completing their initial term of active service who 
were fully qualified when last separated
*	"RE-3" applied to Soldiers who were not qualified for continued Army service, 
but the disqualification was waivable

4.  In November 2008, the Secretary of Defense approved the MAVNI program in order 
to recruit legal aliens with expertise in specific languages; Chinese was one of those 
languages.  In February 2009, the U.S. Army Recruiting Command implemented MAVNI 
as a pilot program.  MAVNI eligibility requirements included:

*	Status as an asylee, refugee, or Temporary Protected Status, or having in one of 
19 nonimmigrant categories (a nonimmigrant is a foreign national who enters the 
U.S. on a temporary basis for tourism, business, or to study); nonimmigrants with 
"F" (student) visas were eligible for this program
*	Being in one of the above-mentioned statuses for at least 2 years immediately 
prior to enlistment
*	No single absence from the U.S. of more than 90 days during the last 2 years 
before enlisting

5.  AR 635-5, in effect at the time, prescribed policies and procedures for the completion 
of the DD Form 214.  The regulation stipulated the required entries for Items 26 (SPD) 
and 28 (Narrative Reason for Separation) were found in AR 635-5-1 (SPD Codes).

6.  AR 635-5-1, in effect at the time, provided the specific authorities (regulatory or 
directive), reasons for separating Soldiers from active duty, and the SPD codes to be 
entered on the DD Form 214.  It identified the SPD code of "JDA" as applying to 
Soldiers separated under the provisions of paragraph 7-17, AR 635-200; the associated 
narrative reason for separation was "Fraudulent Entry."  Soldiers separated per 
paragraph 5-3 (Secretarial Plenary Authority) received the SPD of "JFF," with 
"Secretarial Authority" listed as the narrative reason for separation.

7.  The "Due Process Clause" appears in both the 5th and 14 amendments of the U.S. 
Constitution, and it essentially prohibits the government from depriving a person's life, 
liberty, or property without giving him/her notice, providing him/her the opportunity to be 
heard, and permitting the final result to be determined by a neutral decision-maker.  The 
5th amendment addresses two aspects of due process:  procedural, concerned with 
how legal proceedings are conducted, and substantive, dealing with the content of law 
as they are applied in legal proceedings.  The 14th amendment states, "...nor shall any 
State deprive any person of life, liberty, or property, without due process of law."

8.  The Administrative Procedure Act (APA) was enacted by Congress in 1946 and 
governs the operation of administrative agencies within the Federal government.  The 
Act's purposes are to ensure agencies keep the public informed and offer opportunities 
for public participation in the rule-making process, prescribe uniform standards for the 
conduct of formal rule-making and adjudicatory proceedings, and the APA restates the 
law of judicial review.  The APA further grants U.S. Federal Courts oversight authority of 
Federal agencies.  

	a.  Section 558 (Imposition of Sanctions; Determination of Applications for Licenses; 
Suspension, Revocation, and Expiration of Licenses), addresses the exercise of power 
or authority by government agencies; it states, "a sanction may not be imposed or 
substantive rule or order issued except within jurisdiction delegated to the agency and 
as authorized by law."  

	b.  Chapter 7 (Judicial Review).  A person is entitled to a judicial review (i.e. a 
reconsideration by a Federal court) when an agency's actions have caused him/her to 
incur a legal wrong.  The reviewing court decides relevant questions of law, interprets 
constitutional and statutory provisions, and determines the meaning or applicability of 
the terms of an agency's action.  Actions by the reviewing court can include setting 
aside an agency's actions, findings, and conclusions when the court finds the agency 
abused its discretion, acted in a manner that was arbitrary and capricious, or otherwise 
failed to comply with the law.

9.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  Clemency generally refers to relief specifically granted from a criminal 
sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.  This guidance does not mandate 
relief, but rather provides standards and principles to guide Boards in application of their 
equitable relief authority.  In determining whether to grant relief on the basis of equity, 
injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, 
external evidence, sworn testimony, policy changes, relative severity of misconduct, 
mental and behavioral health conditions, official governmental acknowledgement that a 
relevant error or injustice was committed, and uniformity of punishment.  Changes to the 
narrative reason for discharge and/or an upgraded character of service granted solely 
on equity, injustice, or clemency grounds normally should not result in separation pay, 
retroactive promotions, and payment of past medical expenses or similar benefits that 
might have been received if the original discharge had been for the revised reason or 
had the upgraded service characterization.

10.  U.S. Court of Appeals case, Bark v. Immigration and Naturalization Service (INS), 
was decided in 1975; the petitioner had been denied an immigration status adjustment 
from student to permanent resident because INS claimed the petitioner's marriage was 
a sham (i.e. fraudulent).  The court found INS based its determination solely the fact the 
petitioner and his wife had separated; the court stated a marriage can be considered a 
sham if the bride and groom did not intend to establish a life together at the time they 
married.  The conduct of the petitioner and his wife after marriage only mattered if 
reflected the couple's subjective state of mind at the time of the marriage, and evidence 
of separation, by itself, was not enough to substantiate the marriage was not bona fide.

11.  Harvard Law Review, Volume 99 (April 1986) included an article entitled, The 
Constitutionality of the INS Sham Marriage Investigation Policy.  The article essentially 
argued the manner in which was INS investigating marriages between nonimmigrant 
aliens and U.S. citizens/permanent residents was intrusive; the article contended either 
courts or the U.S. Congress should implement procedural safeguards to ensure privacy 
rights were balanced with legal requirements.  In its description of sham marriages, the 
article posited the sham marriage could either be contractual (both parties agree to 
marry solely for immigration purposes) or unilateral (where the nonimmigrant alien 
deceives the unsuspecting U.S. citizen/permanent resident into marrying).  

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190010839


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190010839


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ABCMR Record of Proceedings (cont)	AR20190010839


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