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ISCR Case 07-00034.a1 — CASE

ISCR Case 07-00034.a1granted

Case Headnote

ISCR Case No. 07-00034.a1

Feb 5, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance decision involved a U.S. military veteran who served in Afghanistan, with concerns raised under Guideline B (Foreign Influence) and Guideline J (Criminal Conduct). The primary issues stemmed from the applicant's family ties in Afghanistan.

Despite these concerns, the judge granted the security clearance. This decision was based on several mitigating factors, specifically FIMC 8(a) and FIMC 8(b). The applicant's extensive military service in Afghanistan, where he risked his life to protect American personnel, was a significant factor. Furthermore, the applicant's family members in Afghanistan were found to have no ties to hostile entities and had, in fact, assisted U.S. military efforts.

The judge emphasized the applicant's strong commitment to U.S. interests, demonstrated through both his actions and relationships, and his significant contributions during military service. Ultimately, the applicant's loyalty to U.S. interests was deemed paramount, leading to the granting of the clearance.

Conditions Referenced

Mitigating

FIMC 8(a)appliedMitigating Condition 8(a)The applicant's brothers in Afghanistan have no ties to the Afghan government or hostile organizations.
FIMC 8(b)appliedMitigating Condition 8(b)The applicant's proven record of action in defense of the U.S. was significant in the decision.

Key Rule Quoted

“An applicant’s proven record of action in defense of the U.S. is very important and can lead to a favorable result for an applicant in a Guideline B case.”
— ISCR Case 04-02511 at 4 (App. Bd. Mar. 20, 2007)

Procedural Posture

SOR issuedJan 8, 2007
Answer filed—Applicant represented himself pro se.
Hearing held—Decision made on the written record.
Decision dateFeb 5, 2008Favorable decision affirmed on appeal.

Cite For

Mitigating Factors Under Guideline B Regarding Foreign Influence
Importance of an Applicant's Actions in Defense of U.S. Interests
Whole-person Analysis in Security Clearance Determinations

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 involved a security clearance decision where the Department Counsel challenged the Administrative Judge's favorable ruling for the applicant based on Guideline B. The Board affirmed the decision, finding no harmful error in the Judge's analysis and conclusions.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — granted the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline JGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Rejected
Department Counsel argued that the judge's favorable clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge articulated a detailed, rational explanation for her favorable determination, and the arguments raised by Department Counsel did not demonstrate harmful error.

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
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 B; Guideline J DIGEST: In this case Applicant has served in the U.S. military in dangerous circumstances in Afghanistan and has risked his life to protect American personnel there. The Judge has articulated a detailed, rational explanation for her favorable determination. Favorable determination affirmed. CASENO: 07-00034.a1 DATE: 02/05/2008 DATE: February 5, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-00034

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Edmunds, Esq., Department Counsel FOR APPLICANT Pro Se

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 8, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 Department Counsel’s appeal is limited to Guideline B. “[T]he nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country 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, group, organization, or government and the interests of the U.S.;” [T]here is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;” (Jan. 2, 1992), as amended (Directive). Applicant requested a decision on the written record. On September 6, 2007, after reviewing the record, Administrative Judge Mary E. Henry granted Applicant’s request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s favorable clearance decision is arbitrary, capricious, or contrary to law.1 Department Counsel argues that the judge erred by applying Foreign Influence Mitigating Conditions (FIMC) 8(a) and 8(b) and by her failure to discuss the dangerous conditions in Afghanistan in her whole-person analysis. The Judge found that Applicant has two children who are American citizens by birth. Applicant’s mother and one brother are American citizens residing in the U.S. Applicant’s sister is a citizen of and resides in Canada. Applicant has two brothers who are citizens of and reside in Afghanistan. Applicant maintains regular phone contact with those two brothers, who are auto parts salesmen. The Judge recognized the security significance of the presence of the two brothers in Afghanistan, but concluded that the concern was mitigated under FIMC 8(a). The Judge stated that the brothers have no ties to the Afghan government or to any non-governmental organization hostile to U.S. interests in Afghanistan, and when Applicant was in Afghanistan as a translator, the brothers helped recruit employees for the U.S. military. Decision at 8. With regard to FIMC 8(b), Applicant stated that he was loyal to the U.S. and would do nothing to compromise U.S. interests. Generally, an Applicant’s statements, by themselves, as to what he would do in the face of threats by a foreign government or entity are entitled to little weight. On the other hand, an applicant’s proven record of action in defense of the U.S. is very important and can lead to a favorable result for an applicant in a Guideline B case. See, e.g.,ISCR Case 04- 02511 at 4 (App. Bd. Mar. 20, 2007). In this case, Applicant has served the U.S. military as a translator in dangerous circumstances in Afghanistan and has risked his life to protect American personnel there. In her whole-person analysis, the Judge set out Applicant’s ties to the U.S. Applicant has lived in the U.S. for more than 20 years and returned to Afghanistan only once, when necessitated by his job as a translator for the U.S. Army. Although he is separated from his wife, he maintains a close relationship with his children, who are U.S. citizens by birth. His mother lives in the U.S. The Judge acknowledged the dangerous conditions in Afghanistan. However, she pointed out that the Afghan government is moving forward with democracy and developing a rule of law, with the assistance of the U.S. There were no findings that the government of Afghanistan possesses an aggressive or hostile intelligence/security profile vis-a-vis the U.S., or is otherwise engaged in efforts to acquire classified or sensitive economic information from the U.S. See, e.g., ISCR Case No. 04-12363 at 2 (App. Bd. Jul. 14, 2006). The Judge emphasized the contribution Applicant has made in the War on Terrorism in Afghanistan. The record contains letters of recommendation from three Americans who have served in Afghanistan with Applicant. All attest to his integrity and his invaluable contribution to the American mission there. Applicant has served as a translator and as a cultural liaison between Americans and Afghan citizens, diffusing tensions and facilitating transactions between the two groups. Applicant participated in interrogations of the Anti-Coalition Militia (ACM) and gathered information from ACM detainees which developed a greater understanding of ACM activities to further support U.S. operations. Applicant put his life in danger on at least one occasion to protect American lives and interests in Afghanistan. Accordingly, in this case, the Judge has articulated a detailed, rational explanation for her favorable determination under the whole-person concept. The Board need not agree with the Judge’s whole-person analysis to conclude that it is sustainable.

ORDER

The Judge’s favorable security clearance is AFFIRMED.

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