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ISCR Case 16-02988.h1 — CASE

ISCR Case 16-02988.h1granted

Case Headnote

ISCR Case No. 16-02988.h1

grantedApr 20, 2017· Hon. Richard A. Cefola· hearing

Summary

A 43-year-old Cultural Advisor/Linguist serving with U.S. Forces in Afghanistan was granted a security clearance despite concerns under Guideline B (Foreign Influence) related to family ties in Afghanistan and Ukraine. The applicant admitted to the allegations, which included providing $200 monthly financial support to his mother, a citizen and resident of Afghanistan whose petition to come to the United States has been approved. His brother, a lieutenant colonel in the Afghan Armed Forces who trains NCOs and works closely with U.S. Forces, is also a citizen and resident of Afghanistan and hopes to immigrate to the U.S. Additionally, the applicant has a 26-year-old son, a computer technician, by a Ukrainian citizen and resident, with whom he last spoke four years ago.

Disqualifying conditions under AG ¶ 7(a) and AG ¶ 7(b) were raised. However, the judge applied mitigating conditions under AG ¶ 8(a), AG ¶ 8(b), and AG ¶ 8(c).

The clearance was granted because the applicant has served with U.S. Forces in Afghanistan since 2011, demonstrating commitment to U.S. interests. His mother and brother are actively seeking to immigrate to the U.S., which reduces potential foreign influence concerns. Furthermore, the applicant has minimal contact with his son in Ukraine, mitigating concerns of divided loyalties.

Why the Applicant Prevailed

The applicant has served with U.S. Forces in Afghanistan since 2011, demonstrating commitment to U.S. interests.
His mother and brother in Afghanistan are seeking to immigrate to the U.S., reducing potential foreign influence.
The applicant has minimal contact with his son in Ukraine, mitigating concerns of divided loyalties.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedMinimal Conflict of Interest Due to U.S. Ties
AG ¶ 8(c)appliedInfrequent Contact with Foreign Citizens

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedNov 14, 2016
Answer filedNov 29, 2016
Hearing heldMar 14, 2017
Decision dateApr 20, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Family Ties in Security Clearance Decisions
Consideration of the Whole-person Concept in Adjudication

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

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the foreign influence concerns related to his family ties in Afghanistan and Ukraine. The applicant's mother and brother are citizens of Afghanistan, and he has a son in Ukraine, but the judge concluded that these ties do not pose a security risk due to the applicant's strong connections to the U.S. and his ongoing service with U.S. Forces. The decision ultimately granted the applicant eligibility for a security clearance.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: U.S. Spouse or Partner · U.S. Children · Intent to Remain in U.S. · Naturalized U.S. Citizen

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s mother is a citizen and resident of Afghanistan. “Her petition to come to the United States” has been approved. “She is a housewife.” He provides financial support to his mother in the amount of “$200 a month.”	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (c) contact so casual and infrequent there is little likelihood of risk	Credited Deep U.S. Ties
1.b	Applicant’s brother is also a citizen and resident of Afghanistan. He is a lieutenant colonel with the Afghan Armed Forces. “He trains Afghan soldiers to become” non-commissioned officers (NCOs). Applicant’s brother works closely with the U.S. Forces in Afghanistan as evidenced by four “Certificates of Appreciation,” and a Letter of Commendation, from the U.S. Forces in Afghanistan. This brother hopes to immigrate to the United States, where his married daughter lives with her American husband.	For Applicant	Sibling in Foreign Country Immediate Family GOVT-AFFILIATED	Afghanistan HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (c) contact so casual and infrequent there is little likelihood of risk	Credited Deep U.S. Ties
1.c	Applicant has a 26-year-old son by a Ukrainian women, who is a citizen and resident of the Ukraine. He has little contact with this “Computer Technician” son, with whom he last spoke “four years ago.” Applicant’s wife is aware of the existence of his Ukrainian son, as evidenced by a letter from his wife.	For Applicant	Extended Family in Foreign Country Extended Family	Ukraine HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (c) contact so casual and infrequent there is little likelihood of risk	Credited Deep U.S. Ties

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-02988 ) ) Applicant for Security Clearance )

For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Pro se

April 20, 2017 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On November 14, 2016, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guideline B. The SOR further informed Applicant that based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance.

Applicant answered the SOR on November 29, 2016, and requested a hearing before an administrative judge. (Answer.) The case was originally assigned to another administrative judge, but was assigned to me on March 8, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on January 25, 2017, scheduling the hearing for March 14, 2017. The hearing was convened as scheduled. The Government offered Exhibits (GXs) 1 through 6, which were admitted. Applicant offered Applicant’s Exhibit (AppX) A, testified on his own behalf and called one witness. The record was left open until April 14, 2017, for receipt of additional documentation. Applicant presented one document, which I marked Applicant’s Exhibits (AppX) B. DOHA received the transcript of the hearing (TR) on March 21, 2017.

PROCEDURAL RULINGS

At the hearing, the Government requested I take administrative notice of certain facts relating to both Afghanistan and Ukraine. Department Counsel provided a five- page summary of the facts, supported by six Government documents pertaining to Afghanistan, identified as AppX 5. Department Counsel also provided a five page summary of the facts, supported by three Government documents pertaining to Ukraine, identified as AppX 6. The documents provide elaboration and context for the summary. I take administrative notice of the facts included in the U.S. Government reports. They are limited to matters of general knowledge, not subject to reasonable dispute. They are set out in the Findings of Fact.

FINDINGS OF FACT

Applicant admitted to all three allegations of the SOR. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 43-year-old “Cultural Advisor/Linguist,” serving with U.S. Forces in Afghanistan. (TR at page 19 lines 1–10.) He has served in this capacity since 2011. (RTR at page 19 lines 11–20.) He has had a security clearance since 2011. (Id.) He is married to a U.S. citizen, and has three native-born American children. (TR at page 29 lines 4–14, and GX 1 at pages 23–25.)

Applicant was born in Afghanistan. (TR at page 19 line 21 to page 20 line 4.) As a 16 year old, he was sent to the former Soviet Union to further his education. (TR at page 20 lines 5–25.) He initially went to St. Petersburg “to learn English.” (TR at page 21 lines 10–22.) After that, in 1990, he was “transferred to Kharkov, which is [in the] Ukraine.” (Id.) He stayed in the Ukraine “until 1999.” (TR at page 21 lines 21–22.) There, he married his American wife, and moved to the United States to be with her in 1999. (TR at page 26 line 18 to page 27 line 17.) Applicant became a U.S. citizen in 2013. (TR at page 27 line 18 to page 28 line 16.)

1.a. Applicant’s mother is a citizen and resident of Afghanistan. (TR at page 29 line 25 to page 31 line 9.) “Her petition to come to the United States” has been approved.” (Id.) “She is a housewife.” (TR at page 30 lines 11–14.) He provides financial support to his mother in the amount of “$200 a month.” (TR at page 37 line 10 to page 38 line 17.)

1.b. Applicant’s brother is also a citizen and resident of Afghanistan. (TR at page 31 lines 10–15.) He is a lieutenant colonel with the Afghan Armed Forces. (Id.) “He trains Afghan soldiers to become” non-commissioned officers (NCOs). (TR at page 31 line 16 to page 32 line 10.) Applicant’s brother works closely with the U.S. Forces in Afghanistan as evidenced by four “Certificates of Appreciation,” and a Letter of Commendation, from the U.S. Forces in Afghanistan. (Answer, at pages 4–8.) This brother hopes to immigrate to the United States, where his married daughter lives with her American husband. (TR at page 32 lines 8–16.)

1.c. Applicant has a 26-year-old son by a Ukrainian women, who is a citizen and resident of the Ukraine. (TR at page 21 line 12 to page 23 line 6.) He has little contact with this “Computer Technician” son, with whom he last spoke “four years ago.” (TR at page 38 line 19 to page 39 line 6.) Applicant’s wife is aware of the existence of his Ukrainian son, as evidenced by a letter from his wife. (AppX B.)

Notice

I take administrative notice of the following facts about Afghanistan and the Ukraine. As to Afghanistan, a U.S. State Department Travel Warning remains in effect. Extremists are active throughout the country. The situation in Afghanistan remains precarious. (AppX 5 at pages 2–4.)

As to the Ukraine, there is an ongoing struggle with Russia, which has seized Ukraine’s Crimean peninsula and which supports pro-Russian forces operating in Eastern Ukraine. The situation in Ukraine also remains precarious. (AppX 6 at pages 3–4.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline B - Foreign Influence

The security concern relating to the guideline for Foreign Influence is set out in AG ¶ 6:

Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.

The guideline notes several conditions that could raise security concerns under AG ¶ 7. Two are potentially applicable in this case:

(a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information.

Applicant‘shousewife mother and brother are citizens and residents of Afghanistan, and his illegitimate son lives in the Ukraine. The evidence is sufficient to raise these disqualifying conditions.

AG ¶ 8 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 8 including:

(a) the nature of the relationship 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.;

(b) there 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 interests in favor of the U.S. interests;

(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; and

(f) the value or routine nature of the foreign business, financial, or property interest is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.

AG ¶¶ 8 (a), 8(b), and 8 (c) apply, and are mitigating. Applicant‘smother will soon be immigrating to the United States, and his Afghan Armed Forces brother, who works closely with the U.S. effort in Afghanistan, hopes to also immigrate to the United States to be closer to his American daughter. As to his illegitimate Ukrainian son, Applicant has little contact with him.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment.

Applicant has distinguished himself in his service with the U.S. forces in Afghanistan. This is evidenced by letters of support from two U.S. Marine Corps (USMC) generals, two USMC colonels, a U.S. Army colonel, two USMC lieutenant colonels, and a U.S. Army lieutenant colonel. (AppX A.) A USMC master sergeant also testified on Applicant’s behalf. (TR at page 41 line 12 to page 46 line 12.) His wife and children are U.S. citizens residing in the United States. I find that Applicant can be expected to resolve any conflict of interest in favor of the United States due to his continuing service to the U.S. forces in Afghanistan, and due to his family ties here.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the Foreign Influence security concerns.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B: FOR APPLICANT

Subparagraph 1.a: For Applicant

Subparagraph 1.b: For Applicant

Subparagraph 1.c: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ Richard A. Cefola Administrative Judge