DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

ELP
Docket No. 870-01
24 January 2002

Dear 

Mr.-

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

considered your application on

Your allegations of error and injustice were

A three-member panel of the Board for Correction of Navy Records,
sitting in executive session,
16 January 2002.
reviewed in accordance with administrative regulations and
procedures applicable to the proceedings of this Board.
Documentary material considered by the Board consisted of your
application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
the Board considered the advisory
opinion furnished by the Navy Personnel Command Enlisted
Performance Branch  
which is attached.

(Pers-832),  dated 6 August 2001, a copy of

In addition,

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

The record reflects that you were born in the Philippines and
your father, who was a lawful permanent resident of the United
States, applied for an immigrant visa on your behalf.
Thereafter, you petitioned for an immigrant visa and regi-
stration as an unmarried son of a lawful permanent resident, and
entered the United States on 3 February 1979.
However, you had
been married since 10 November 1976.

You enlisted in the Naval Reserve on 21 March 1979 and were
ordered to active duty for a period of three years.
to the Philippines and went through another marriage ceremony
on 27 July 1979 with the same woman you married in 1976,
apparently in an effort to conceal the prior marriage.
filed a petition for an immigrant visa for your wife and son on
12 March 1981.

You reenlisted in the Navy on 6 May 1981 for six

You

You returned

Thereafter, you were

You were advanced to MS3 (E-4) on

years as an MSSN (E-3).
16 July 1981.
On 3 March 1983 the Immigration and Naturalization Service (INS)
submitted a request to a district director that you be issued a
"show cause" order for visa fraud.
investigated by both the Naval Investigative Service (NIS) and
the INS for visa fraud, false statement, conspiracy, and
fraudulent alien registration.
when you applied for an immigrant visa and alien registration,
you stated that you were "single, never married."
of your statement, you were issued an immigrant visa as an
unmarried son of a lawful permanent resident.
immigrant visa for your spouse and child, records revealed the
marriage of 10 November 1976,
time of your enlistment in March 1979.
investigation, you were convicted on 17 April 1986 of alien
On 21 May 1986, the Department of Justice
registration fraud.
informed your command that your enlistment on 21 March 1979 and
reenlistment on 6 May 1981 were obtained with a fraudulent alien
The purpose of this letter was to advise the
registration card.
command that it had no plans to deport you as long as you
remained in the Navy.

and that you were married at the

That investigation revealed that

As a result

When you filed for

As a result of this

On 22 January 1987 the commanding officer (CO) advised Commander,
Naval Military Personnel Command (CNMPC) of your conviction of
The CO stated that you had no other
alien registration fraud.
military or civil disciplinary action pending, your performance
since reporting on board had been outstanding, and no admini-
strative separation action was planned because he highly
recommended your retention in the Navy.
CNMPC decided to take no action,
retained but warned that any further misconduct could result in
administrative separation.

and directed that you be

On 21 February 1987,

You reenlisted again on 25 November 1988 for four years as an
rrCVV school, on 31 March 1989, you
MS2 (E-5).
reported for duty at the Naval Security Group Activity, Adak, AL.

After completing MS  

In January 1990, a military lawyer at the Naval Legal Service
CA, acting as counsel for a woman
Office (NSLO) in San Diego,
who claimed to be your wife,
contacted NIS and requested an
investigation.
1990 and she provided a marriage certificate, which showed that
you had married her on 14 March 1987, and a birth certificate for
She claimed to
a child born of this marriage on 5 January 1988.
have received phone calls from your first wife and stated that
when confronted, you admitted to marrying and having two children
with her, but said that you had divorced her.

An NIS agent interviewed this woman on 23 January

The Records of

Emergency Data (RED) on file in your record list the woman you
first married in 1976 as your wife.
then had three children with this woman, the last of which was
The record contains no evidence that
born on 6 September 1988.
you ever divorced your first wife or had the marriage annulled.

The last RED shows that you

Thereafter, NLSO San Diego informed your command that you were
apparently married to two women.
the NIS for further investigation, and it was discovered that
your initial enlistment was fraudulent; that you had married
again, without benefit of a divorce; and had a son from this
second marriage.

The matter was then referred to

Shortly after arriving at Adak, you became romantically involved
with a female MSSN (E-3), who later became pregnant by you. On
26 March 1990 you were involved in a fire of a suspicious nature,
which put your pregnant girlfriend in the hospital with serious
burns and destroyed your barracks room.
surrounding the fire, NIS began an investigation into the
incident.
disciplinary action was contemplated.

The investigation was completed in June 1990 and

Given the circumstances

On 25 July 1990 you were notified that administrative separation
under other than honorable conditions was being considered by
reason of fraudulent enlistment and misconduct due to the
commission of serious offenses,
destruction of government property.
You were advised of your
procedural rights, declined to consult with legal counsel, and
waived the right to present your case to an administrative
discharge board (ADB).

to include bigamy and the willful

but discussions with the station

On 6 August 1990 the CO recommended separation under other than
honorable conditions.
He noted that the convening of judicial
proceedings had been considered,
judge advocate indicated that the costs of a court-martial would
be astronomical, and the government's case rested on weak
evidence or witnesses who would have to travel great distances to
Accordingly, the command elected against court-martial
testify.
proceedings.
The CO stated that fraudulent entry into the United
States and the Naval service could be overlooked if an individual
demonstrates that he is worthy of retention, but you had proven
that perjury, dishonesty and wanton disregard for your lawful
responsibilities were in character for you.
deception were unacceptable in the Naval service and merited
separation.

Your behavior and

On 24 August 1990 your legal counsel requested that admini-
strative action against you be rescinded and asserted that the
decision to resort to administrative processing, with its relaxed

3

rules of evidence and lower standard of proof, should not be used
as a means to circumvent an individual's due process rights.
CO forwarded counsel's request with the discharge package and
stated that whether you accepted nonjudicial punishment or
elected a trial by court-martial for destruction of government
property, those proceedings would have been followed by
administrative separation action for fraudulent enlistment. Such
action was in no way meant to circumvent your right to due
process.
The CO asserted that the evidence was clear that you
fraudulently enlisted in the Navy and that you were married to
two women.

The

On 7 September 1990, CNMPC directed a general discharge by reason
of fraudulent entry and assignment of an RE-4 reenlistment code.
You were so discharged on 7 November 1990.

In its review of your application the Board carefully conducted a
careful search of your records for any mitigating factors which
would warrant recharacterizing your third period of service, or
changing the reason for discharge and reenlistment code.
However, no justification for such changes could be found.
Board noted your contentions to the effect that if a former
command waived administrative proceedings against you, the next
command cannot process you for separation based on the very same
offense; the bigamy charge was dropped because the marriage was
annulled; the charge of destruction of government property was
dropped because your roommate admitted to owning the Coleman fuel
which caused the fire; counsel's letter contesting administrative
processing in lieu of trial by court-martial should have resulted
in a due process hearing; the command abused its authority when
it decided to discharge you for fraudulent enlistment when the
charges were dropped by a Federal court;
be overlooked if an individual proves he is worthy of retention.

and fraudulent entry may

The

After your conviction in 1986 of alien registration fraud, the
command declined to process you for separation given your
otherwise excellent record, and CNMPC
retained you in the Navy.
Normally, an individual cannot be processed for separation based
on conduct for which an individual was previously processed and
However, you were never processed for separation in
retained.
Further, your third enlistment was also fraudulent since
1987.
you were married to two women at the time.
You would not have
been allowed to reenlist had this information been known prior to
Additionally, your RED's fail to reflect your
this reenlistment.
second marriage, or the children born of that marriage.
The
Board found the record disturbing since it showed your second
wife had a son in January 1988, your first wife had her third
child in September 1988, and that your girlfriend in Adak became

Your contentions that the bigamy

pregnant shortly thereafter.
charge was dropped because the marriage was annulled and the
destruction of government property charge was dropped because
your roommate admitted culpability are not supported by the
evidence of record.
cost of a trial and no guarantee of a conviction.
a right to request trial by court-martial, the Navy was not
required to grant the request.
show that your first marriage was annulled or ended by a divorce.

The charges were dropped due to the extreme
While you had

You have submitted no evidence to

The Board also noted the aggravating factor that you waived your
right to an ADB, the one opportunity you had to show that your
last enlistment was not fraudulent,
serious offense.

or that you did not commit a

While your legal counsel requested that all separation processing
be terminated since court-martial proceedings against you were
dropped, he did not request a hearing before an ADB.
Based on
the evidence of record, had you appeared before an ADB, it most
likely would have recommended discharge under other than
honorable conditions.
standard of proof at an ADB is a preponderance of the evidence
and not beyond a reasonable doubt,
trial by court-martial.
considered your otherwise excellent service and gave legal
counsel's request due consideration when it directed a general
discharge.

It appeared to the Board that CNMPC

the applicable standard at a

the Board noted that the

In this regard,

The fact that the reason for

The Board substantially concurred with the comments contained in
the attached advisory opinion.
discharge is somewhat stigmatizing or may impact on future
endeavors does not provide a valid basis for changing the reason
for discharge.
enlistment was improper, you could have been discharged by reason
of misconduct due to commission of a serious offenses,
specifically, bigamy or destruction of government property.
Regulations require the assignment of an RE-4 reenlistment code
to individuals separated for fraudulent entry.

Even if separation by reason of fraudulent

Based on the foregoing,
characterization, reason for discharge, and reenlistment code
were proper and no changes are warranted.
Accordingly, your
application has been denied.
of the panel will be furnished upon request.

the Board concluded that the

The names and votes of the members

It is regretted that the circumstances of your case are such
that favorable action cannot be taken.
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by

You are entitled to have

the Board. In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure