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ISCR Case 13-00559.a1 — CASE

ISCR Case 13-00559.a1denied

Case Headnote

ISCR Case No. 13-00559.a1

Mar 12, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A naturalized U.S. citizen, originally from Afghanistan, was denied a security clearance under Guideline B (Foreign Influence). The primary concerns stemmed from the applicant's ties to in-laws residing in Afghanistan and his prior military service in that country.

While the judge made favorable findings regarding the applicant's immediate family, these did not sufficiently mitigate the broader foreign influence concerns. Disqualifying conditions under Guideline B, specifically B2, were raised due to the applicant's connections to foreign nationals.

Despite the application of mitigating conditions under B8, the judge concluded that the applicant did not provide enough evidence to alleviate the risks associated with his in-laws, especially considering Afghanistan's political instability and ongoing terrorist activity. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

B2raisedForeign Influence

Mitigating

B8rejectedContact with Foreign Citizens Is Casual and InfrequentThe judge found that the applicant's contact with his in-laws was not infrequent enough to mitigate concerns.

Key Rule Quoted

“The presence of terrorist activity in a foreign country is a significant factor in Guideline B cases.”
— ISCR Case No. 10-09986 at 3 (App. Bd. Dec. 15, 2011)

Procedural Posture

SOR issuedJul 12, 2013
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateMar 12, 2014Appeal Board affirmed the denial.

Cite For

Significant Security Concerns Due to Foreign Influence Under Guideline B
Impact of Prior Military Service on Security Clearance Decisions
Rebuttable Presumption of Ties to In-laws Under Guideline B

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

Affirmed

The appeal was filed by the applicant after the Department of Defense denied his request for a security clearance based on concerns under Guideline B (Foreign Influence). The applicant argued that the Judge's findings contained errors and that the decision was arbitrary and capricious. The Appeal Board affirmed the Judge's decision, finding that the errors alleged were either harmless or did not warrant a reversal.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance

Decided onthe written record

Guidelines belowGuideline B

What the Board reviewed

Erroneous finding of fact — raised by the applicantError found, but harmless
The Judge's finding that Applicant remained in the inactive reserves after his service as an officer was not true.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Judge's findings were supported by substantial evidence, and the decision was not arbitrary or capricious. The error regarding the inactive reserve status was deemed harmless and did not affect the outcome.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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 B DIGEST: The Appeal Board examines a Judge’s findings to see if they are supported by substantial evidence. There is a rebuttable presumption that a person has ties of affection or obligation to in-laws. Prior lengthy service to a foreign government is relevant to a Guideline B analysis. Adverse decision affirmed. CASE NO: 13-00559.a1 DATE: 03/12/2014 DATE: March 12, 2014 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 13-00559

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 12, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On November 6, 2013, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s findings of fact contained errors and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge made the following findings pertinent to the issues raised on appeal. Applicant was born in Afghanistan, where he attended high school and college. He served as a high-ranking officer in the Afghan military from the early 1980sto the early 1990sand, afterward, remained in the inactive reserves. He received an honorable discharge from the military. Applicant left Afghanistan in the early 1990s, moving to another country in the Middle Ease. Applicant came to the U.S. in the early 2000s, becoming a naturalized citizen several years later. Applicant’s spouse was born and raised in Afghanistan. She is a naturalized U.S. citizen, as are her four children with Applicant. Applicant’s mother and father-in-law are citizens and residents of Afghanistan. They are not aware of the nature of his work. Although in his response to the File of Relevant Material Applicant stated that he had not spoken with them in over a year, in an earlier document he stated that he contacted them once a month. Applicant enjoys an excellent reputation for the quality of his work performance. A supervisor stated that his efforts were critical to mission achievement. Afghanistan has a history of political unrest. Terrorist activities remain high in Afghanistan. Terrorist organizations such as the Taliban and al-Qaeda operate within its borders, targeting U.S. and Afghan interests by such means as suicide bombings, assassination, and hostage-taking. Afghanistan has a poor human rights record. According to recent reports by the Department of State, insurgents continue to plan attacks and kidnapings of Americans and other Western nationals.

The Judge’s Analysis Concluding that Applicant’s circumstances raised Guideline B concerns, the Judge entered favorable findings regarding three allegations concerning Applicant’s own immediate family. However, the Judge concluded that Applicant had failed to mitigate concerns arising from his in- laws in Afghanistan and his former service in the military. She stated that, given the presence of foreign terrorist organizations within the borders of Afghanistan, she could not rule out the possibility that Applicant’s in-laws could become a means through which he could be subjected to coercion or duress. Though acknowledging that loyalty to foreign in-laws is a positive character trait, the Judge stated that Applicant had not provided evidence sufficient to sustain a favorable application of Mitigating Condition 8(a).1 In the whole-person analysis, the Judge noted evidence favorable to Applicant but concluded that this evidence was not sufficient to outweigh those factors that militated against approval of a clearance, citing explicitly to Applicant’s over 10 years of foreign military service. She stated that there is no information about the nature of Applicant’s duties while he was in the military, nor was there any information about the extent to which his wife and children maintain contact with his foreign in-laws.2

DISCUSSION

Applicant challenges the Judge’s findings of fact. Specifically, he argues that the Judge’s finding that he had remained in the inactive reserves after his service as an officer was not true. We examine a Judge’s findings to see if they are supported by substantial record evidence, that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.21. See also ISCR Case No. 11- 00970 at 2 (App. Bd. Feb. 28, 2012). In this case, the only evidence concerning this matter was supplied by Applicant himself. He stated in his security clearance application (SCA) that he had served as an officer in the Afghanistan military during a specified time between the early 1980sand the early 1990s. In reply to a question about the status of his service during the time he served, Applicant checked “Inactive Reserve.” Item 4, SCA, dated March 21, 2011, at p. 15. In his reply to the SOR, Applicant stated that he had been a high-ranking officer in the military between two dates named in the SCA. However, he stated that, after the latter of the two dates, he left the service. The record evidence states only that, during the dates asserted by Applicant in the SCA and alleged in the SOR, he served as an officer in the inactive reserves of the military of Afghanistan. There is no evidence in the record of any further service after the dates given by Applicant in his SCA. Therefore, the Judge’s finding that Applicant served as an officer until the early 1990s, after which he entered the inactive reserves, is in error. However, given her statement that there is no evidence as to what Applicant may have done while in the military, and given her findings about Applicant’s in-laws in Afghanistan, it is not likely that, but for this error, she would have decided the case differently. Also, in the Analysis section of her Decision, the Judge makes reference to Applicant’s 12 years of military service. This reference excludes any consideration of purported inactive reserve status after 1992. Therefore, the error is harmless. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. “There is a rebuttable presumption that a person has ties of affection for, or obligation to, the immediate family members of the person’s spouse.” ISCR Case No. 04-11577 at 4 (App. Bd. Feb. 7, 2007). “The presence of terrorist activity in a foreign country is a significant factor in Guideline B cases.” ISCR Case No. 10-09986 at 3 (App. Bd. Dec. 15, 2011). Prior lengthy service to a foreign government is also relevant. See, e.g., ISCR Case No. 04-12449 at 5 (App. Bd. May 14, 2007). The decision is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 Directive, Enclosure 2 ¶ 8(a): “the nature of the relationships with foreign persons . . . are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual . . . and the interests of the U.S.”

2 See Directive, Enclosure 2 ¶ 8(c): “contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk of foreign influence or exploitation[.]”