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ISCR Case 04-02630.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date5/23/2007
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 04-02630.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, Jean E. Smallin, James E. Moody
Government Counsel: Melvin A. Howry
Guidelines Evaluated
- Guideline BForeign Influence · Against Applicant
- Guideline EPersonal Conduct · For Applicant
- Guideline FFinancial Considerations · For Applicant

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ISCR Case 04-02630.a1unknown

Case Headnote

ISCR Case No. 04-02630.a1

May 23, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing himself, who sought a security clearance under three guidelines: Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline F (Financial Considerations).

The Appeal Board determined that the original judge made a significant error by failing to consider the geopolitical situation in Afghanistan when evaluating Guideline B. This omission impaired the analysis of potential foreign influence concerns.

While the judge had applied mitigating conditions for Guidelines E and F, the fundamental error regarding Guideline B necessitated a remand of the case for further evaluation. Consequently, no final outcome on the security clearance was reached.

Conditions Referenced

Disqualifying

AG BraisedForeign Influence

Mitigating

AG EappliedPersonal Conduct
AG FappliedFinancial Considerations

Key Rule Quoted

“Security concerns are not limited to influence exercised by foreign governments.”

Procedural Posture

SOR issuedJul 21, 2005
Answer filed—
Hearing heldAug 23, 2006
Decision dateMay 23, 2007Remanded for further analysis.

Cite For

Remand Due to Failure to Consider Geopolitical Factors Under Guideline B
Impact of Foreign Influence on Security Clearance Decisions
Importance of Whole Person Analysis in Security Clearance Cases

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Remanded

The Appeal Board reviewed the Administrative Judge's decision to grant a security clearance to the Applicant, which was challenged by Department Counsel. The Board found that the Judge failed to consider the geopolitical situation in Afghanistan, which affected his analysis under Guideline B and the whole person. Consequently, the Board remanded the case for further findings and analysis.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — granted the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline EGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's failure to make findings concerning the geopolitical situation in Afghanistan rendered his decision arbitrary and capricious.

Why the Board ruled this way

The Board found that the Judge's failure to address the geopolitical conditions in Afghanistan impaired his analysis of Guideline B and the whole person, necessitating a remand for further findings.

No rational connection between facts and conclusion

On remand, the judge must

The Judge must provide a new opinion that includes a detailed whole person analysis, taking into account the dangers existing in Afghanistan and their bearing on potential coercion, as well as detailing the Applicant's pertinent qualities and circumstances.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline F; Guideline E; Guideline B DIGEST: Security concerns are not limited to influence exercised by foreign governments. The Judge’s failure to make findings concerning the geopolitical situation in Afghanistan impairs his analysis both of Guideline B and the whole person. Adverse decision remanded. CASENO: 04-02630.a1 DATE: 05/23/2007 DATE: May 23, 2007 In Re: --------- SSN: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-02630

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Melvin A. Howry, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 21, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations), Guideline E (Personal Conduct) and Guideline B (Foreign Influence) of Department of Defense Directive “A determination that the immediate family member(s) . . . in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States . . .” Directive ¶ E2.A2.1.3.1. Department Counsel does not challenge the Judge’s favorable decision under Guidelines F and E. Therefore, they are not at issue in this case. Applicant Exhibit C includes an evaluation of Applicant’s duty performance. Written on stationary bearing the letterhead of Combined Forces Command - Afghanistan, it states in part that Applicant is a “critical link” between the U.S. and the Afghan people. “Of special note, his mastery of five languages and cultural expertise has earned him the respect and trust of our Deputy Commanding General. [Applicant] is often called upon to translate and verify strategic-level documents for the Commander.” Another document contained in this exhibit states that Applicant has assisted in “several joint planning groups to solve a myriad of problems surfacing in Afghanistan . . . [S]everal important [Afghan officials] will speak only through Applicant.” 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 23, 2006, after the hearing, Administrative Judge Richard A. Cefola granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raises the following issues on appeal: whether the Judge erred in his application of Foreign Influence Mitigating Condition (FIMC) 1; and whether the Judge’s whole person analysis was arbitrary, capricious, and contrary to law. Finding error, we remand the case to the Judge. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings of fact: Applicant has two brothers who are citizens and residents of Afghanistan. Both are carpenters. They have no connection with the Afghan government. Applicant has worked for the Afghan government, without pay, from March to July of 2004. He worked for the U.S. Army in Afghanistan from December 2004 until June 2005. The “Deputy Commanding General” of the U.S. Army in Afghanistan thinks most highly of Applicant, and other U.S. Army officers echo the general’s comments. B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. In his discussion of the first asserted error, Department Counsel noted that the Judge’s findings include nothing about the nature of the Afghan government or the nature of threats posed by groups such as terrorists and para-military organizations operating within Afghanistan. Department Counsel notes that the Judge’s failure to address the geopolitical conditions in Afghanistan render his decision arbitrary and capricious. Security concerns under Guideline B are not limited to influence exercised by foreign governments. Such concerns can arise from the operation of non-governmental groups, such as terrorist organizations, within a foreign country. See ISCR Case No. 03-22643 at 8 (App. Bd. June 24, 2005)(“The Board has rejected the contention that there is no rational connection between terrorism and threats to the security of classified U.S. information.”) See also ISCR Case No. 02-29403 at 9 (App. Bd. Dec. 14, 2004). In this case, the Judge’s failure to make findings concerning the geopolitical situation within Afghanistan impairs his analysis, both of Guideline B and of the whole person. Therefore, we remand the case to the Judge for a new opinion, under Guideline B and the whole person. The new opinion should include a more detailed whole person analysis, which takes into account the dangers existing in Afghanistan insofar as they have a bearing on the potential for coercion. Also, as appropriate, it should detail and explain Applicant’s pertinent qualities, characteristics, and circumstances which are the basis for the Judge’s ultimate decision.

ORDER

The Judge’s decision granting Applicant a clearance is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board