DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 A RLINGTON, VA 22204-2490 Docket No: 10769-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , USNR, XXX­ XX- Ref: (a) 10 U.S.C. § 552 (b) SECNAVINST 5420.193 (c) MILPERSMAN 1910, 130, "Separation by Reason of Defective Enlistments and Inductions -Erroneous Enlistment," CH-43, 10 May 2013 (d) MILPERSMAN 1910-134, "Separation by Reason of Defective Enlistments and Inductions -Fraudulent Entry into Naval Service," CH-42, 23 March 2013 (e) MILPERSMAN 1910-144, "Separation by Reason of Misconduct -Civilian Conviction," CH-69, 9 October 2019 (f) MILPERSMAN 1910-160, "Separation by Reason of Supremacist or Extremist Conduct," CH-23, 28 May 2008 (g) MILPERSMAN 1910-233, "Mandatory Separation Processing," CH-69, 9 October 2019 (h) MILPERSMAN 1910-600, "Forwarding Cases to the Separation Authority," CH-28, 2 Sep 2009 (i) MILPERSMAN 1910-702, "General Guidance for Separation Authorities (SA)," CH­62, 3 January 2018 (j) MILPERSMAN 1910-704, "Determining Separation Authority," CH-54, 10 March 2016 (k) MILPERSMAN 1910-710, "Procedures when an Administrative Separation Board was Held," CH-11, 8 June 2005 (l) USDEF Memo, "Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations," 25 July 2018 Encl: (1) DD Form 149 w/attachments (2) DD Form 4/1, Enlistment Contract, 25 February 2002 (3) NAVPERS 1070/601, Immediate Reenlistment Contract, 16 October 2009 (4) Member Data Summary (5) Department of Defense Consolidated Adjudications Facility Memo, subj: "Intent to Revoke Eligibility for Security Clearance," 29 April 2016 (6) Petitioner Memo, subj: "Response to Notice of Intent to Revoke Eligibility for Security Clearance," 11 October 2016 (7) NAVPERS 1910/31, Administrative Separation Processing Notice, 16 September 2016 (8) NOSC, Memo, subj: "Administration Separation ICO [Petitioner]," 21 December 2017 (9) Navy Region RCC Memo, subj: "Recommendation for Administrative Separation ICO [Petitioner]," 5 January 2018 (10) CNRFC Memo, subj: "Recommendation for Administrative Separation ICO [Petitioner]," 15 March 2018 (ll) Navy Personnel Command Action Memo, subj: "Administrative Separation ICO [Petitioner]," 24 August 2018 (12) COMNAVPERSCOM Mes age, subj: Admin Disch ICO [Petitioner], dtg Ol 1600Z Nov 18 (13) NAVPERS 1070/613, Administrative Remarks ("Page 13" Entries), 6 November 2018 l. Pursuant to the provisions of references (a) and (b), Petitioner, a former enlisted member of the U.S. Navy Reserve (USNR), filed enclosure (l) with the Board for Correction of Naval Records (Board), reque ting that his 2018 administrative discharge be set aside and that he be returned to an active drilling status in the USNR. 2. The Board reviewed Petitioner's allegations of error and injustice on 6 November 2020. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval service records, and applicable statutes, regulations, and policies, to include the guidance of reference (1). 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows: a. Before applying to the Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Enclosure (1) was filed in a timely manner. c. Regarding the Petitioner's request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered the Petitioner's case based on the evidence of record. d. On 25 February 2002, Petitioner originally enlisted in the USNR for eight years. He reenlisted on 16 October 2009 for six years. Petitioner's most recent reenlistment was on 8 December 2014 for six years. See enclosures (2) through (4). e. By memorandum dated 29 April 2016, the Department of Defense Consolidated Adjudications Facility (DoD CAF) notified Petitioner of its preliminary decision to revoke his security clearance. The reason stated for this decision was a lengthy list of information derived from Petitioner's April 2014 Office of Personnel Management inve tigation, a Federal Bureau of Investigation name check of Petitioner pulled on 27 March 2014, and Petitioner's 28 October 2003 Defense Security Service investigation, which the DoD CAF determined to be disqualifying under the "Allegiance to the United States," personal conduct, and criminal conduct security guidelines. Specifically, the information upon which the decision to revoke Petitioner's security clearance included, but was not limited to, allegations of his personal involvement with and associations with known leaders of several domestic terrorist and white supremacy groups; his personal use of violence against Federal officials in the performance of their duties and several acts taken in furtherance of the ideology of the white supremacist and hate groups with which he was associated; several arrests in both the United States and , which resulted in two convictions; his failure to disclose all but one of his previous arrests in his security clearance questionnaire; and Petitioner's failure to be truthful and candid in his security clearance questionnaire regarding his past action , associations, and criminal record. All of the conduct discussed in the DoD CAF memorandum occurred prior to Petitioner's initial enlistment in the USNR. The DoD CAF memorandum notifying Petitioner of its preliminary revocation decision, with the specific details upon which the decision was based, can be found at enclosure (5). f. By memorandum dated 11 October 2016, Petitioner provided a detailed rebuttal response to the DoD CAF security clearance revocation letter in which he categorically denied or refuted the allegations made against him in the above referenced DoD CAF letter. He admitted to have associated and "foolishly" supported individuals with known racist views in his youth, but that he was never a member of any terrorist or white supremacist group. See enclosure (6). g. On 16 September 2016, Petitioner was notified that he was being proces ed for administrative eparation based upon erroneous enlistment under reference (c); fraudulent entry into naval service under reference (d); supremacist or extremist conduct under reference (f); and civilian conviction under reference (e). See enclosure (7). The information upon which these bases for separation was established came from the above-referenced DoD CAF ecurity clearance revocation memorandum. He elected to exercise his right to an administrative separation board. See enclosure (7). Per reference (g), processing for administrative separation was mandatory under the circumstances. h. On 13 September 2017, an administrative separation (ADSEP) board was convened and heard the evidence in Petitioner's case. Following the presentation of evidence and witness testimony, the ADSEP board substantiated the allegations of erroneous enlistment and fraudulent enlist, but unsubstantiated the allegations of supremacist or extremist conduct and civilian conviction.1 Despite substantiating the allegations of erroneous and fraudulent enlistment, the ADSEP Board voted to retain Petitioner in the naval service. See enclosure (8). i. The Commanding Officer (CO), Navy Operational Support Center (NOSC), , did not concur with the ADSEP board's recommendation to retain Petitioner in the USNR. By memorandum dated 21 December 2017 addressed to the CO, Navy Region () , the NOSC CO argued that Petitioner should be separated from the USNR despite the recommendation of the ADSEP board in accordance with reference (k). He asserted that Petitioner had admitted on the record to the bases for which the ADSEP board determined were not supported, that Petitioner's counsel denied the Government of a fair hearing by preventing cross examination of Petitioner's character witne ses, that Petitioner lacks future utility in the USNR given the revocation of his security clearance, and that his retention would have long lasting and far reaching negative effort on good order and discipline within both the NOSC and the U.S. Navy. See enclosure (8). 1 The ADSEP Board voted 3-0 and 2-1 to substantiate the allegations of erroneous enlistment and fraudulent enlistment respectively, and 3-0 to unsubstantiate the allegations of both support of supremacist or extremist conduct and civilian conviction. j. By memorandum dated 5 January 2018, the CO, Navy Region Reserve Component Command () concurred with the CO's recommendation to separate the Petitioner contrary to the ADSEP board recommendation. On 15 March 2018 Commander, Navy Reserve Forces Command in concurred with the separation recommendation. See enclosures (9) and ( 10). k. By memorandum dated 24 February 2018, the Commander, Navy Personnel Command (NPC), forwarded Petitioner's ADSEP board report, along with the recommendations of Petitioner's chain of command to separate Petitioner contrary to the ADSEP board's recommendation, to the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN (M&RA)) for action, with the recommendation that the ASN (M&RA) separate Petitioner from the USNR with a general (under honorable conditions) characterization of service, a separation code of JDA, and a reenlistment code of RE-4. By signature dated 3 October 2018, the ASN (M&RA) approved this recommendation.2 See enclosure (11). l. By message dated 1 November 2018, the Commander, NPC, pursuant to the decision of the AS (M&RA), directed that Petitioner be discharged from the USNR for fraudulent entry with a general (under honorable conditions) characterization of service within five days of receipt of the message. 3 See enclosure ( 12). Petitioner was so discharged on 6 November 2018. See enclosure (13). Petitioner's separation from the USNR was documented on "Page 13" entries in lieu of a DD Form 214.4 m. By memorandum dated 7 August 2019 (attached to enclosure (1)), Petitioner asserted that his discharge from the USNR was an injustice because he was denied due process. Specifically, he asserted that because his ADSEP board recommended that he be retained in the USNR, the Commander, NPC, had no authority to direct his discharge in enclosure (12). He cites to the provisions of reference (i), stating that a Separation Authority may not approve findings and characterization recommendations less favorable to the respondent than those rendered by the ADSEP board. He acknowledges that the Secretary of the Navy has the authority to direct separations contrary to the recommendation of the ADSEP board, but asserts that his case did not meet this requirement. He further asserts that reference (k) would require that another separation process be initiated before the Secretary of the Navy could take action on his case. Finally, he asserts that he was separated for fraudulent enlistment on an enlistment contract that he had already completed. 2 Per paragraph 9f of reference (j), the separation authority in "board overturn" cases is the Secretary of the Navy. 3 Fraudulent enlistment was the only basis cited for Petitioner's discharge. 4 Unlike their active duty counterparts, USNR personnel do not receive a DD Form 214 upon separation or retirement. USNR discharges are only documented by "Page 13" entries. BOARD CONCLUSION: After careful and conscientious consideration of the entire record, the Board found the evidence to be insufficient to establish the existence of probable material error or injustice. It found Petitioner's assertions to be unpersuasive and without merit. Specifically, the Board concluded that Petitioner was not aware that his discharge, contrary to the recommendation of the ADSEP board, was approved by the ASN (M&RA) in accordance with reference (j).5 Reference (k) establishes the procedure to be followed in cases when the separation authority disagrees with the recommendation of an ADSEP board to retain a service member despite substantiating a basis for separation, and those procedures were followed in this case. Petitioner received all process due to him during the ADSEP board, wherein he was well represented as evidenced by the ADSEP board's findings and recommendation. However, Petitioner's chain of command, not agreeing with the ADSEP board recommended, followed the appropriate procedures to have Petitioner's discharge, contrary to the ADSEP board recommendation, considered by the Secretary of the Navy's delegate. Contrary to Petitioner's apparent belief, it was the ASN (M&RA), not the Commander, NPC, who approved Petitioner's discharge contrary to the recommendation of the ADSEP Board. Accordingly, there was no error or injustice in the process by which Petitioner was discharged from the USNR. In addition to finding no error or injustice in the process by which Petitioner was discharged, the Board also found no error or injustice in the decision itself. Specifically, the Board found this to be a prima facie case of fraudulent enlistment. The Petitioner clearly effected a fraudulent enlistment by falsely repre enting or deliberately concealing potentially disqualifying information. The Board believed that if Petitioner had fully and candidly proffered his entire criminal history and his known association with extremist and hate groups, he never would have been permitted to enlist in 2002. The Board concurred with the CO's determination that the Petitioner made the conscious decision to disclose only law enforcement interactions whose associated reports did not make specific reference to Petitioner's association with hate-based or supremacist groups. Moreover, the Board determined that Petitioner deliberately concealed relevant criminal history as well as his affiliation with white supremacist and hate groups on the SF-86 que tionnaire for his security clearance. The Board concluded that Petitioner lied on his initial enlistment paperwork, his initial 2003 security clearance paperwork, and again on his 2014 security clearance paperwork. The Board was also not persuaded by Petitioner's assertion that his disclosure (or lack thereof) were made in conjunction with a previous enlistment contract, and therefore his discharge for fraudulent enlistment constitutes an error or injustice, because all of Petitioner's subsequent enlistments relied upon the disclosures that he had made in in initial enlistment. Accordingly, the Board found no error or injustice in Petitioner's discharge for fraudulent enlistment. 5 The Board notes that the ASN (M&RA) serves as the delegate of the Secretary of the Navy for such matters. The Board also noted that the Petitioner's lack of truthfulness and candor extended to his response to the DoD CAF notification of intent to revoke his security clearance. The Board concurred with the conclusion of the CO that Petitioner continued to minimize and, in some instances, outright disavow any association or affiliation with white supremacist groups or activities, despite later admitting to the very same associations and activities during his ADSEP board hearing. The Board understood that enlisted personnel must maintain a security clearance. Thus, the Board noted that the loss of Petitioner's security clearance esentially renders him unable to perform any meaningful duties in the USNR in his rating. The Board determined that although Petitioner's supremacist/extremist activity occurred prior to enlisting in the USNR, his 2018 separation was warranted and in the best interests of the service. The Board concluded that Petitioner's admitted association with white supremacist and hate groups involved behavior antithetical to Navy core values and ethos and clearly merited his discharge. In addition to reviewing the circumstances of Petitioner's discharge from the USNR for error or injustice, the Board also considered the totality of the circumstances in accordance with reference (1) to determine whether relief is warranted in the interests of justice. In this regard, the Board considered, among other factors, Petitioner' s meritorious service in the USNR prior to the discovery of his originally fraudulent enlistment; that Petitioner's extremist activities and associations predated his enlistment in the USNR and there was no evidence of such conduct or associations continuing after his initial enlistment in the USNR; Petitioner's assertions in enclosure (6) refuting the allegations in the DoD CAF letter; and that the ADSEP board recommended Petitioner's retention in the USNR despite sub tantiating his fraudulent enlistment. Even considering these potentially mitigating factors, however, the Board did not find that relief was warranted under the totality of the circumstances. It found no injustice in either Petitioner's discharge from the USNR or in the characterization of his service under the totality of the circumstances. BOARD RECOMMENDATION: In light of the above, the Board recommends that Petitioner's request for relief be denied. 4. It is certified that a quorum was present at the Board' s review and deliberations, and that the foregoing is a true and complete record of the Board' s proceedings in the above-entitled matter. 5. The foregoing action of the Board is submitted for your review and action. Executive Director 12/28/2020 PRINCIPAL DEPUTY. ASSISTANT SECRETARY OF THE NAVY M&RA) DECISION: (Performing the Duties of the Assistant Secretary of the Navy (M&RA)) BOARD RECOMMENDATION APPROVED 2/10/2021 10 Feb 2021