1. Applicant's Name: a. Application Date: 1 August 2016 b. Date Received: 3 October 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through legal counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable, a change to his narrative reason for separation to reflect "Secretarial Authority," and a change to his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, his discharge should be upgraded for reasons of propriety and equity based on the fact that he did not violate any naturalization laws of the United States and that his discharge was based on a factual error and a just outcome could only be achieved by correcting this error. The applicant contends his discharge was based on an incomplete investigation and an assumption that he knowingly and intentionally obtained his enlistment through fraud. Rather than waiting for the investigation to be fully resolved, his chain of command made a material error of discretion in moving forward with his discharge without waiting for resolution of the investigation and possible criminal prosecution or deportation. The applicant contends that he was cleared of wrongdoing and granted citizenship. He believes it was clearly unfair and unjust to separate him for fraudulent enlistment and to impose a general (under honorable conditions) discharge. Despite his negative experience, he remains dedicated to serving his country and continues to do all he can to improve himself as a person. The record indicates the applicant had a prior records review in March 2014. In a personal appearance hearing conducted at Arlington, VA on 8 May 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Fraudulent Entry / AR 635-200, Chapter 7, Section V / JDA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 29 June 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 May 2012 (2) Basis for Separation: The applicant was informed of the following reasons: for procuring his enlistment through deliberate material misrepresentation, omission, or concealment of the following information, which if known and considered by the Army at the time of enlistment, his enlistment might have resulted in rejection: In that he did, at or around Los Angeles, California, on or about 28 July 2009, by means of knowingly making false representations that he was legally in the United States because he had a valid visa when in fact he was not lawfully in the United States because his visa was obtained by a fraudulent marriage, procuring himself to be enlisted as a specialist in the United States Army, and did thereafter, at or around Joint Base Lewis- McChord, Washington, received pay and allowances under the enlistment so procured; and In that he did, at or near Joint Base Lewis-McChord, Washington, on or about 13 December 2011, with intent to deceive, made to Special Agent H an official statement, to wit: "I never paid any money to anyone for the marriage," which statement was totally false, and was then known by him to be so false. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 September 2009 / 4 years, 25 weeks b. Age at Enlistment / Education / GT Score: 32 / Bachelor's Degree / 118 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91J10, Quartermaster and Chemical Equipment Repairer / 2 years, 9 months, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record, dated 14 June 2012, Subject: [The applicant] Incident of Fraudulent Entry Determinations and Findings, signed by the separation authority, provides the findings based on investigations conducted by the Department of Homeland Security Immigration and Customs Enforcement (cites case number) and the U.S. Army Criminal Investigation Division (Report of Investigation (cites case number)). Memorandum for Record, undated, Subject: Incident of Fraudulent Entry; Executive Summary of Evidence, signed by a battalion judge advocate, provides a summary of the events surrounding the applicant's enlistment with a timeline chart of sequence of events from 2002 through 2011. One negative counseling statement, dated 5 April 2012, in regards to the command receiving information that the applicant fraudulently enlisted. CID report, dated 18 April 2012, reflects the applicant was the subject of an investigation for fraudulent enlistment and making false official statement. The report contains the following, in pertinent part: PAI/PEI Report (Security Clearance Application), dated 28 July 2009. Classified Information Nondisclosure Agreement, dated 21 April 2010, agreement between the applicant and the United States. Application for Naturalization, dated 28 January 2010, shows information entered from Part 5, Information for Criminal Record Search (page 3) through Part 14, Oath of Allegiance (page 10). Two separate Department of Homeland Security Forms G-325A, Biographic Information, dated 23 and 25 January 2008, reflects information on the applicant and Ms. T.M.L, respectively. Department of Homeland Security Form I-130, Petition for Alien Relative, dated 23 January 2008, signed by Ms. T.M.L. County Superior Court, Decree of Dissolution (DCD) (Marriage), dated 10 December 2010, references the marriage of the applicant as petitioner (signed on 2 September 2010), and Ms. T.J.L. as respondent (signed on 15 August 2010). Department of Homeland Security Report of Investigation, dated 30 June 2008, reflects the applicant was the subject of an investigation for marriage fraud. Memorandum, dated 10 June 2009, Subject: Assignment of Select Foreign Born Soldiers to Units of the U.S. Army Special Operations Command (USASOC) is self-explanatory. E-Mail Correspondence, dated 24 May 2012 through 8 June 2012, Subject: FW: Follow Up, exchanged between CID special agent, an immigration officer with DHS, and a battalion judge advocate. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; Exhibits 1-9: DD Form 214, Record of Military Processing-Armed Forces of the United States, license and certificate of marriage dated 23 October 2007/photos; right warning procedure/waiver certificate/sworn statements; divorce documents, dated 10 December 2010; superseding indictment/immigration status court documents, dated 22 January 2009; certificate of naturalization, dated 23 May 2013; passport document, dated 15 July 2013; Master of Science certificate; and resume. 6. POST SERVICE ACCOMPLISHMENTS: The applicant was became a U.S. naturalized citizen on 23 May 2013. 7. REGULATORY CITATION(S): Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, paragraph 7-17 provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. Soldiers separated under Chapter 7 may be awarded an honorable discharge, general, under honorable conditions discharge, or a discharge under other than honorable conditions. If in an entry level status, the discharge will be uncharacterized. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 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 identifies the SPD code of "JDA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 7, Section V, Fraudulent Entry. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JDA" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant, through legal counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable, a change to his narrative reason for separation to reflect "Secretarial Authority," and a change to his reentry eligibility (RE) code. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. By the procurement of his enlistment through deliberated material misrepresentation, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active duty. The applicant requested his narrative reason for discharge and RE code be changed. However, the appropriate SPD code and narrative reason for discharge to assign enlisted Soldiers who are discharged for fraudulent entry is "JDA" and the RE code is 3. Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends his discharge should be upgraded for reasons of propriety and equity based on the facts that he did not violated any naturalization laws of the United States, and that his discharge was based on a factual error and a just outcome could only be achieved by correcting this error. The applicant contends his discharge was based on an incomplete investigation and an assumption that he knowingly and intentionally obtained his enlistment through fraud. Rather than waiting for the investigation to be fully resolved, his chain of command made a material error of discretion in moving forward with his discharge without waiting for resolution of the investigation and possible criminal prosecution or deportation. He contends he was cleared of wrongdoing and granted citizenship and believes it was clearly unfair and unjust to separate him for fraudulent enlistment and impose a general (under honorable conditions) discharge. Despite his negative experience, he remains dedicated to serving his country and continues to do all he can to improve himself as a person. The applicant's contentions were noted; however, in review of the applicant's entire service record at the time of discharge and the reasons for the discharge, it appears that his subsequent accomplishments did not overcome the reason for discharge and characterization of service granted. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents. b. The applicant presented the following additional issues: Change narrative reason to "Secretarial Authority". c. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 8 May 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. Restore (Restoration of) Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160017841 1