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ISCR Case 16-03997.h1 — CASE

ISCR Case 16-03997.h1granted

Case Headnote

ISCR Case No. 16-03997.h1

grantedOct 13, 2017· Hon. Mark W. Harvey· hearing

Summary

A 47-year-old U.S. citizen and former Afghan military officer was granted a security clearance despite concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The Statement of Reasons cited that the applicant's mother, brother, and three sisters reside in Afghanistan, with the applicant providing financial support to his mother for medical assistance. Additionally, the applicant's spouse has four brothers, two sisters, and a mother who are citizens and residents of Afghanistan.

Concerns under Guideline E arose from the applicant providing false information about his employment history on his November 24, 2015 security clearance application. However, during a December 23, 2015 OPM Personal Subject Interview, the applicant disclosed that he had been fired from two previous employments, correcting the earlier misrepresentation.

The judge granted the clearance, noting the applicant's honorable service as a U.S. linguist for approximately five years in a dangerous environment. Key mitigating factors included the applicant's correction of the false employment information during his interview, his naturalization as a U.S. citizen, and his substantial connections to the United States, including family residing there.

Why the Applicant Prevailed

The applicant served honorably as a U.S. linguist in a dangerous environment for about five years.
The applicant corrected false information about his employment history during his personal subject interview.
The applicant has substantial connections to the United States, including his naturalization and family residing in the U.S.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 8appliedForeign Influence
AG ¶ 17appliedPersonal Conduct

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 8, 2017
Answer filedMar 14, 2017
Hearing heldJun 14, 2017
Decision dateOct 13, 2017

Cite For

Mitigation of Foreign Influence Concerns Due to U.S. Citizenship
Mitigation of Personal Conduct Issues Through Full Disclosure
Consideration of Applicant's Service and Contributions to National Security

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's foreign influence concerns were mitigated due to his substantial connections to the United States, including his naturalization as a U.S. citizen and the citizenship of his children. The applicant admitted to having family ties in Afghanistan but demonstrated a commitment to U.S. interests, leading to a decision to grant his 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: Naturalized U.S. Citizen · U.S. Children · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant's mother, brother, and three sisters are citizens and residents of Afghanistan.	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties Claimed Financial Event Outside Control
1.b	Applicant provides financial support to his mother because she needs medical assistance.	For Applicant	Financial Support to Foreign Relative Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties Claimed Financial Event Outside Control
1.c	Applicant's spouse has four brothers, two sisters, and mother, who are citizens and residents of Afghanistan.	For Applicant	In Law in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties Claimed Financial Event Outside Control

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's personal conduct concerns were mitigated, leading to a favorable decision regarding his security clearance. The applicant admitted to providing false information about his employment history but corrected this during his interview, which contributed to the favorable outcome.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant provided false information about his employment history in his November 24, 2015 Questionnaire for National Security Positions (SF 86) or security clearance application (SCA).	For Applicant	Falsification Security FormFOUND DELIBERATESELF-CORRECTED	Employment History	Admitted	—	(a) prompt, good-faith correction before being confronted	Credited Corrected Falsification Promptly
2.b	During Applicant’s December 23, 2015 OPM PSI, Applicant disclosed that he was fired from the employments ending in August 2014 and March 2015.	For Applicant	Lack of Candor in Interview	—	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). 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. 16-03997 ) ) Applicant for Security Clearance

For Government: Andrew H. Henderson, Esq., Department Counsel For Applicant: Pro se

10/13/2017 __________

STATEMENT OF CASE

__________

HARVEY, Mark, Administrative Judge:

Applicant served honorably as a U.S. linguist in a dangerous environment for about five years, and he has made substantial contributions to the national security of the United States. Applicant has substantial connections to the United States. During his December 23, 2015 Office of Personnel Management (OPM) personal subject interview (PSI), he corrected the false information about his employment history in his November 24, 2015 Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). Foreign influence and personal conduct security concerns are mitigated, and eligibility for access to classified information is granted.

Statement of the Case

On November 24, 2015, Applicant completed and signed an SCA. (Government Exhibit (GE) 1) On February 8, 2017, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, effective on September 1, 2006 (Sept. 1, 2006 AGs). The SOR set forth security concerns arising under the foreign influence and personal conduct guidelines. On March 14, 2017, Applicant responded to the SOR and requested a hearing. HE 3. On April 18, 2017, Department Counsel was ready to proceed. On April 24, 2017, the case was assigned to me. On May 9, 2017, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for June 14, 2017. HE 1. Applicant’s hearing was held as scheduled.

During the hearing, Department Counsel offered four exhibits; Applicant offered three exhibits; there were no objections; and all proffered exhibits were admitted into evidence. Tr. 19-25, 36-37; GE 1-4; Applicant Exhibits (AE) A-C. On June 22, 2017, DOHA received the transcript of the hearing.

The Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position on or after June 8, 2017. The new AGs supersede the previous AGs. I have evaluated Applicant’s security clearance eligibility under the new AGs.1

PROCEDURAL RULINGS

Department Counsel offered six exhibits and a summary for administrative notice concerning foreign influence security concerns raised by Applicant’s connections to Afghanistan. Tr. 20-21; HE 4; I-VI. Administrative or official notice is the appropriate type of notice used for administrative proceedings. See ISCR Case No. 16-02522 at 2-3 (App. Bd. July 12, 2017); ISCR Case No. 05-11292 at 4 n. 1 (App. Bd. Apr. 12, 2007); ISCR Case No. 02-24875 at 2 (App. Bd. Oct. 12, 2006) (citing ISCR Case No. 02-18668 at 3 (App. Bd. Feb. 10, 2004) and McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n. 4 (3d Cir. 1986)). Usually administrative notice at ISCR proceedings is accorded to facts that are either well known or from government reports. See Stein, ADMINISTRATIVE LAW, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for administrative notice). Applicant did not object to me taking administrative notice of the proffered documents and obtaining information from the Department of State website. Tr. 20-21. I granted Department Counsel’s request for administrative notice. Tr. 20-21.

The first three paragraphs and the last paragraph of the Afghanistan section are taken from U.S. State Department Background Notes, https://2001-2009.state.gov/p/ sca/ci/af/. The other paragraphs are quoted from Department Counsel’s administrative notice request (bullet symbols and internal footnotes are omitted). Findings of Fact2

Applicant admitted the allegations in SOR ¶¶ 1.a, 1.b, 1.c, 2.a, and 2.b. HE 3. He also provided mitigating information. HE 3. His admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence of record, I make the following findings of fact.

Applicant is a 47-year-old linguist, and DOD contractors have employed him as a contractor in Afghanistan and as a cultural advisor at a military installation in the United States. Tr. 6; AE A. He was employed in Afghanistan until the SOR was issued. AE A at 1.

Foreign Influence

Applicant was born in Afghanistan. Tr. 25; GE 1. In 1987, Applicant graduated from high school in Afghanistan. Tr. 6. He received a bachelor’s degree from a military university in Afghanistan in 1991 or 1992. Tr. 6. He served in the Afghan military for several years up until around 1995, and when he left Afghan military service, he was a first lieutenant platoon leader. Tr. 7; GE 3. He returned to Afghan Army service from 2001 to 2005. GE 3. When he left the Afghan Army the second time, he was a lieutenant colonel assigned as a tank-driver instructor. GE 1; GE 3.

Applicant married in 1996, and his children are ages 7, 12, 10, and 20. Tr. 8. All of his children were born in Afghanistan except for the seven year old who was born in the United States. Tr. 8. In 2009, he received a U.S. visa because of support to the U.S. Government. GE 2. He immigrated to the United States in 2009, and he and his spouse were naturalized as U.S. citizens in 2014. Tr. 25; GE 2 at 11. All of his children live in the United States and are U.S. citizens. GE 1; GE 2.3

Applicant took the Naturalization Oath of Allegiance to the United States in 2014. GE 2. The Naturalization Oath of Allegiance to the United States of America states:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform

2 The facts in this decision do not specifically describe employment, names of witnesses, names noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.4

Applicant’s mother, brother, and three sisters are citizens and residents of Afghanistan. Tr. 31, 34; SOR response; GE 2. His mother lives with Applicant’s brother in Afghanistan. Tr. 33. Applicant’s father has passed away. Tr. 33. Applicant plans to bring his mother to the United States. Tr. 14-15. Applicant applied to the U.S. Government to obtain a visa for her. Tr. 31; AE C. She is in the midst of the immigration process to obtain a green card. Tr. 15, 23. He provides financial support to his mother because she needs medical assistance. Tr. 15, 33. He provides about $250 monthly to his brother, and then his brother provides the funds to Applicant’s mother. Tr. 36, 44. In total, he has provided about $14,000 to $21,000 to his mother over the years. GE 3 at 9. Applicant previously contacted his brother several times a month; however, now he only contacts his brother about once a year. Tr. 36; GE 2.

Applicant’s brother does not work for the Afghan government. Tr. 32. All of Applicant’s sisters are married, and he is not aware of his sisters’ husbands’ employment. Tr. 32. His contact with his sisters or their husbands is about once or twice a year. Tr. 33; GE 2.

Applicant’s spouse has four brothers, two sisters, and mother, who are citizens and residents of Afghanistan. Tr. 35; SOR response. Applicant or his spouse has weekly to monthly contact with her two sisters and one brother. GE 2. Applicant provides about $400 to $600 annually to her mother. Tr. 35; GE 2. None of Applicant’s in-laws work for the Afghan government. Tr. 35.

Personal Conduct

In Applicant’s November 24, 2015 SCA, he said he was employed from February 2010 to August 2014 as an interpreter/cultural advisor at a military installation. GE 1. He said he left that employment because of “lack of work.” GE 1. He was also employed from October 2014 to March 2015 as a driver, and he said he left that employment due to “lack of work.” GE 1. This SCA asks:

For this employment have any of the following happened to you in the last seven (7) years?

Fired Quit after being told you would be fired Left by mutual agreement following notice of unsatisfactory performance Applicant responded no to these questions for both employments.

A few months after arriving in the United States, Applicant obtained employment at an Army installation where he worked as a cultural advisor for about four years until August 2014. Tr. 15, 18, 26-27; GE 1. After two agents of the Federal Bureau of Investigation (FBI) interviewed him and gave him a polygraph test, someone in the Army barred him from the Army installation. Tr. 38, 42-43. He believed he passed the FBI polygraph test. SOR response. Applicant said he does not know why the FBI agents questioned him or why he was barred from the installation. Tr. 18, 28, 39-42. Applicant believes the loss of employment was not his fault. Tr. 15-16. He did not lose that employment because of a lack of work. Tr. 28. He characterized his company’s action as firing him for not having access to the installation. Tr. 18; SOR response.

After Applicant was terminated from his employment on the military installation in August 2014, he obtained employment for a government contractor as a driver. Tr. 29. He lost his employment as a driver because of an argument he had with a manager. Tr. 16. They argued over whether he was supposed to be paid $80 for a trip or $80 a day. Tr. 16. The manager used profanity and told Applicant he was fired. Tr. 16, 29. Applicant filed a lawsuit against his employer, and the employer paid Applicant $820 to settle the lawsuit. Tr. 16-17. Applicant did not leave that position because of “lack of work.” Tr. 29.

Applicant explained why he did not disclose that he was fired as follows, “When you get another job, if you said you’re fired and nobody will give you other job.” Tr. 29.

During Applicant’s December 23, 2015 OPM PSI, Applicant disclosed that he was fired from the employments ending in August 2014 and March 2015. GE 2. He said he did not provide accurate information about leaving the employments because “it is harder to find a job if you have been ‘fired’.” GE 2. Applicant also disclosed that he was fired from these two employments on his November 9, 2015 Counterintelligence- Focused Security Screening Questionnaire. GE 3. The OPM investigator did not indicate in his or her summary of interview that Applicant was confronted with information about being fired from his employments before he admitted he was fired.

Character Evidence

Applicant was employed in Afghanistan by a contractor working for the U.S. Army from 2005 to 2009. Tr. 14, 25-26. Applicant was injured in Afghanistan. Tr. 24. He hurt his back, knee, and ankle when he lifted a duffel bag and slipped on a gravel helicopter pad. Tr. 24. A vehicle accident in April 2017 aggravated the injury to his back. AE B.

Applicant has been employed in Afghanistan from November 2016 to April 2017. AE A at 1. His current employer in Afghanistan described him as an effective interpreter. AE A at 1. He accepts extra assignments, has conducted hundreds of interviews, is professional, and acts as a mentor for new interpreters. AE A at 1. Applicant provided five letters of support from U.S. Army Corps of Engineers employees, a Navy petty officer second class, and other Army employees who served with Applicant in Afghanistan from 2005 through 2007. AE A at 3, 4, 9, 12, 13. The general sense of their letters is Applicant is dependable, trustworthy, diligent, and honest. AE A at 3, 4, 9, 12, 13. He received 11 certificates of appreciation for his excellent services (including service as a force protection guard), professionalism, and contributions to mission accomplishment in Afghanistan. AE A at 25-28, 44-48, 52, 62.

Applicant provided letters of support from one colonel, three lieutenant colonels, one major, one captain, and one staff sergeant lauding his diligence, professionalism, and contributions to mission accomplishment during Applicant’s service in the United States and Afghanistan as a cultural advisor, interpreter, and role player. AE A at 5, 6, 7, 8, 10, 11, 14. He received 57 certificates of appreciation for his outstanding work as a cultural advisor, interpreter, and role player in the United States. AE A at 16-24, 29-43, 50-51, 53-61, 63-95.

On June 29, 2016, a U.S. Army colonel wrote Applicant has “immense character and integrity.”5 He is “tremendously hard-working and loyal,” and he achieves “phenomenal results.” “He proved instrumental in rebuilding . . . security forces from the worst to one of the most capable units within Afghanistan.” Applicant is trustworthy, and the colonel said he would be honored to serve with Applicant in the future.

Afghanistan

Afghanistan is a country in Southwestern Asia that is approximately the size of Texas (249,935 square miles). Pakistan borders it on the east and the south. Iran borders it on the west and Russia to the north. It is a rugged and mountainous country, which has been fought over by powerful nations for centuries. In 2009, the population was about 28 million people with about 3,000,000 Afghans living outside Afghanistan.

Afghanistan is presently an Islamic Republic with a democratically-elected president. Afghanistan has had a turbulent political history, including an invasion by the Soviet Union in 1979. After an accord was reached in 1989, and the Soviet Union withdrew from Afghanistan, fighting continued among the various ethnic, clan, and religious militias. By the end of 1998, the Taliban rose to power and controlled 90% of the country, imposing aggressive and repressive policies.

In October 2001, U.S. forces and coalition partners led military operations in the country, forcing the Taliban out of power by November 2001. The new democratic government took power in 2004 after a popular election.

A U.S. State Department Travel Warning remains in effect. The State Department warns U.S. citizens against travel to Afghanistan because of continued instability and threats by terrorist organizations against U.S. citizens. Travel to all areas of Afghanistan remains unsafe due to the ongoing risk of kidnapping, hostage-taking, military combat operations, landmines, banditry, armed rivalry between political and tribal groups, militant attacks, direct and indirect fire, suicide bombings and insurgent attacks, including attacks using vehicle-borne or other improvised explosive devices (IEDs). Attacks may also target official Afghan and U.S. governmental convoys and compounds, foreign embassies, military installations, and other public areas.

Extremists associated with various Taliban networks, the Islamic State of Iraq and the Levant - Khorasan Province (ISKP) and members of other armed opposition groups are active throughout the country. ISKP has shown its operational capability, having attacked both Afghan and foreign government facilities. The Taliban and its affiliates routinely attack Afghan, Coalition, and U.S. targets with little regard for civilian casualties.

Due to security concerns, unofficial travel to Afghanistan by U.S. government employees and their family members is restricted and requires prior approval from the State Department.

According to the State Department’s 2015 Country Reports on Terrorism, Afghanistan continued to experience aggressive and coordinated attacks by the Taliban, including the Haqqani Network and other insurgent and terrorist groups. The Haqqani Network continued to plan and conduct high profile attacks and assassinations against U.S., Coalition and Afghan interests, particularly in Kabul and other key government centers.

According to the State Department, the border region of Afghanistan and Pakistan remains a safe haven for terrorists. It is an under-governed area that terrorists exploit to conduct attacks in both countries. Terrorist groups active in Afghanistan, such as al-Qa’ida (AQ), the Haqqani Network and others, operate in Afghanistan and Pakistan. ISIL-Khorasan (ISIL-K) is largely based in Afghanistan, but its support network also reaches into Pakistan's tribal areas along the border. The Afghan government has struggled to assert control over this remote terrain where the population is largely detached from national institutions.

According to the U.S. Defense Department's June 2016 report on Afghanistan, although al-Qa’ida’s core leadership in the Afghanistan-Pakistan border region has been degraded, elements continue to seek safe haven on both sides of the border to regenerate and conduct attack planning. The continued development of an al-Qa’ida affiliate in the region (al-Qa’ida in the Indian Subcontinent (AQIS)), highlights the dynamic nature of the terrorist and militant landscape of the region, posing risks to the mission and to U.S. interests.

The situation in Afghanistan remains precarious, and in July 2016, President Obama announced that he would keep 8,400 U.S. service members in Afghanistan through the end of his term in January 2017. In its annual Human Rights Report for 2015, the U.S. Department of State reported that the most significant human rights problems in Afghanistan during the year were widespread violence, armed insurgent groups' attacks on civilians and killing of persons affiliated with government, torture and abuse of detainees by government forces; widespread disregard for the rule of law, and little accountability for those who conduct human rights abuses, as well as targeted violence and societal discrimination against women and girls.

The United States’ extraordinary commitment to Afghanistan is balanced against the inherent dangers of the ongoing conflict in Afghanistan to its citizens and residents and Afghan government problems developing and complying with the rule of law. A top national security goal of the United States is to establish relationships, cooperation, training, and support of the Afghanistan Government and military in the ongoing war against terrorism.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), § 3.1. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Foreign Influence

AG ¶ 6 explains the security concern about “foreign contacts and interests” stating:

Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism.

AG ¶ 7 has three conditions that could raise a security concern and may be disqualifying in this case:

(a) contact, regardless of method, 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;

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

(e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion.

Applicant has frequent contacts6 with his mother and brother, who are citizens and residents of Afghanistan. His frequent contacts are a manifestation of his care and concern for his relatives living in Afghanistan. Applicant provided between $14,000 and $21,000 in financial support for his mother living in Afghanistan.

Applicant’s spouse has four brothers, two sisters, and mother, who are citizens and residents of Afghanistan. Applicant or his spouse has weekly to monthly contact with her two sisters and one brother. Applicant provides about $400 to $600 annually to his spouse’s mother.

There are widely documented safety issues for residents of Afghanistan because of terrorists and insurgents. Applicant has voluntarily shared in those dangers on behalf of the DOD, and he is willing to do so in the future. Numerous Afghan linguists, supporting U.S. forces, have family living in Afghanistan. Thousands of United States and coalition armed forces and civilian contractors serving in Afghanistan are targets of terrorists or the Taliban, along with Afghan civilians who support the Afghan government and cooperate with coalition forces.

The mere possession of close family ties with one or more family members living in Afghanistan is not, as a matter of law, disqualifying under Guideline B; however, if an applicant has a close relationship with even one relative living in a foreign country, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See Generally ISCR Case No. 03- 02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001).

There is a rebuttable presumption that a person has ties of affection for, or obligation to, their immediate family members. See generally ISCR Case No. 01-03120, 2002 DOHA LEXIS 94 at *8 (App. Bd. Feb. 20, 2002). Applicant has ties of affection and obligation to his spouse; she has relatives in Afghanistan; and she may be close to them. “[A]s a matter of common sense and human experience, there is [also] a

“frequent contact” under AG ¶¶ 7 and 8. ISCR Case No. 14-05986 at 3-4 (App. Bd. Oct. 14, 2016). See once every four or five months not casual and infrequent). 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. 07-17673 at 3 (App. Bd. Apr. 2, 2009) (citing ISCR Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002)). This concept is the basis of AG ¶ 7(e).

The nature of a nation’s government, its relationship with the United States, and its human-rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion or inducement. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, the government ignores the rule of law including widely accepted civil liberties, a family member is associated with or dependent upon the government, the government is engaged in a counterinsurgency, terrorists cause a substantial amount of death or property damage, or the country is known to conduct intelligence collection operations against the United States. The relationship of Afghanistan with the United States, places a significant, but not insurmountable burden of persuasion on Applicant to demonstrate that his relationships with his family members living in Afghanistan do not pose a security risk. Applicant should not be placed into a position where he might be forced to choose between loyalty to the United States and a desire to assist a family member living in Afghanistan.

Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.” ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. See ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002).

While there is no evidence that intelligence operatives or terrorists from Afghanistan seek or have sought classified or economic information from or through Applicant or his family, nevertheless, it is not possible to rule out such a possibility in the future. International terrorist groups are known to conduct intelligence activities as effectively as capable state intelligence services, and Afghanistan has an enormous problem with terrorism. Applicant’s relationships with relatives living in Afghanistan create a potential conflict of interest because terrorists or the Taliban could place pressure on his family living in Afghanistan in an effort to cause Applicant to compromise classified information. These relationships create “a heightened risk of foreign inducement, manipulation, pressure, or coercion” under AG ¶ 7. Department Counsel produced substantial evidence of Applicant’s contacts with family in Afghanistan and has raised the issue of potential foreign pressure or attempted exploitation. AG ¶¶ 7(a), 7(b), and 7(e) apply, and further inquiry is necessary about potential application of any mitigating conditions. AG ¶ 8 lists six conditions that could mitigate foreign influence security concerns including:

(a) the 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 United States;

(b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;

(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;

(d) the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee;

(e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and

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

The DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

AG ¶¶ 8(b) applies. Applicant has frequent contact with his mother and brother, and his spouse has frequent contact with her siblings and mother who are citizens and residents of Afghanistan. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.” Applicant was born in Afghanistan. He married in 1996, and his children are ages 7, 12, 10, and 20. Applicant, his spouse, and his four children are U.S. citizens. He immigrated to the United States in 2009, and he and his spouse were naturalized as U.S. citizens in 2014.

Applicant’s years of support to the DOD in Afghanistan as a linguist and cultural advisor, including the dangers that service entailed, weigh heavily towards mitigating security concerns. Applicant was serving in Afghanistan as recently as April 2017 providing critical assistance to U.S. Armed Forces in a dangerous combat environment. He has offered to continue to risk his life to support the United States’ goals in Afghanistan. He has shown his patriotism, loyalty, and fidelity to the United States.

Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by his relationships with relatives who are citizens and residents of Afghanistan. Applicant’s mother, siblings, and in-laws currently live in Afghanistan. Like every other resident of Afghanistan, they are at risk from terrorists and the Taliban.

It is important to be mindful of the United States’ huge investment of manpower and money in Afghanistan, and Applicant has supported U.S. goals and objectives in Afghanistan. Applicant and his relatives living in Afghanistan are potential targets of terrorists and the Taliban, and Applicant’s potential access to classified information could theoretically add risk to his relatives living in Afghanistan from lawless elements in Afghanistan.

In sum, Applicant’s connections to his relatives living in Afghanistan are less significant than his connections to the United States. His employment in support of the U.S. Government, family living in the United States, performance of linguist duties in a combat zone, and U.S. citizenship are important factors weighing towards mitigation of security concerns. His mother is his primary remaining family connection to Afghanistan, and she is in the process of immigrating to the United States. His connections to the United States taken together are sufficient to fully overcome and mitigate the foreign influence security concerns under Guideline B. Even if security concerns are not mitigated under Guideline B, they are mitigated under the whole-person concept, infra.

Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern stating:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

AG ¶ 16 describes two conditions that could raise a security concern and may be disqualifying in this case:

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire . . . used to conduct investigations, . . . determine security clearance eligibility or trustworthiness. . . . ;7 and

(b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative.

In Applicant’s November 24, 2015 SCA, he falsely stated that he left his employment from February 2010 to August 2014 as an interpreter/cultural advisor at a military installation and from October 2014 to March 2015 as a driver due to “lack of work.” On both occasions, he was fired. Applicant admitted that he lied because he was worried that he would not be hired if he disclosed he had been fired. AG ¶¶ 16(a) and 16(b) are established.

AG ¶ 17(a) contains one condition that could mitigate security concerns. AG ¶ 17(a) states, “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts.” At Applicant’s December 23, 2015 OPM PSI, Applicant disclosed that he was fired from the employments ending in August 2014 and March 2015. He said he did not provide accurate information about leaving the employments because “it is harder to find a job if you have been ‘fired’.” GE 2.

The applicability of AG ¶ 17(a) has been limited by several Appeal Board decisions. An intentional omission allegation is not mitigated when an applicant admits

2004)). the omission after an investigator tells him or her that the Government has already learned facts establishing the omission.8 If an Applicant provides false information in multiple interviews, voluntary, accurate disclosure during the third interview does not mitigate the falsification concern.9 In ISCR Case No. 05-10921 at 4 (App. Bd. Apr. 19, 2007) the Appeal Board considered an applicant’s claim that he promptly disclosed his firing from employment to an investigator after falsely denying the termination from employment on his security clearance application stating:

. . . Applicant did not disclose his termination from the hotel until he was at his security clearance interview. The . . . investigating agent asked about the hotel in the context of previous employments and Applicant indicated he worked there. The investigator then asked if anyone at the hotel would have anything negative to say about Applicant, at which time Applicant supplied the investigator with a name and the hotel management. Subsequently, Applicant informed the investigator that he had been fired from the hotel.

The Appeal Board in ISCR Case No. 05-10921 at 4 (App. Bd. Apr. 19, 2007) affirmed the administrative judge’s decision not to credit applicant with making a “prompt, good faith [effort] to correct the falsification before being confronted with the facts.” Id. at 4-5. Stated differently, once it becomes apparent to an applicant that an investigator is likely to discover derogatory information, it is too late to receive mitigating credit under AG ¶ 17(a).

In the instant case, Applicant disclosed his two terminations from employment before being confronted with any information that made it appear likely the investigator would discover this information. He fully cooperated with the investigator’s follow-up interrogation as indicated by his disclosure that he was told he was fired and his explanation that he lied because he needed employment. His falsification of his SCA is mitigated. See ISCR Case No. 09-05655, (App. Bd. Aug. 24, 2010) (mitigating Guideline E falsification allegation under whole-person concept); DISCR No. 93-1390 (App. Bd. Jan. 27, 1995) (discussing prompt disclosure requirement); ISCR Case No. 98-0422, 1999 DOHA LEXIS 49, (A.J. Jan. 22, 1999) (mitigating Guideline E concern). The personal conduct concern is mitigated. Even if security concerns are not mitigated under Guideline E, they are mitigated under the whole-person concept, infra.

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

clearance). conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guidelines E and B are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines but some warrant additional comment.

Applicant has frequent contact with his mother and brother; his spouse has frequent contact with her mother and siblings; he provides financial support to his mother; and all of them are citizens and residents of Afghanistan. Their frequent contacts and his financial support are manifestations of their care and concern for their relatives living in Afghanistan. These relationships raise important foreign influence security concerns, and they must be balanced against his connections to the United States.

Applicant immigrated to the United States in 2009, and he and his spouse were naturalized as U.S. citizens in 2014. He swore an Oath of Allegiance to the United States. Their four children are U.S. citizens and live in the United States. His closest relative in Afghanistan is his mother, and she is in the process of immigrating to the United States.

Applicant served as a security guard, linguist, translator, linguist consultant, or cultural advisor for about five years in Afghanistan in support of U.S. forces. He provided 11 letters of support including from one colonel, three lieutenant colonels, one major, one captain, one staff sergeant, one petty officer second class, and several U.S. Corps of Engineer Employees. The general sense of those letters is that Applicant is diligent, professional, trustworthy, and honest. He provided 68 certificates of appreciation lauding his contributions to mission accomplishment in the United States and Afghanistan.

A June 29, 2016, letter from a U.S. Army colonel who worked closely with Applicant under combat conditions for eight months is particularly persuasive. He said Applicant has “immense character and integrity.” He is “tremendously hard-working and loyal,” and he achieves “phenomenal results.” “He proved instrumental in rebuilding . . . security forces from the worst to one of the most capable units within Afghanistan.” Applicant is trustworthy, and the colonel said he would be honored to serve with Applicant in the future.

Applicant was serving in a U.S. designated combat zone until shortly before his hearing. During his five years of service in Afghanistan, he contributed to the U.S. military at personal risk. He is willing to continue to serve in Afghanistan in support of U.S. Armed Forces as a linguist and cultural advisor, risking his life on behalf of the U.S. combat forces in Afghanistan. All of these circumstances increase the probability that Applicant will recognize, resist, and report any attempts by a foreign power, terrorist group, or insurgent group to coerce or exploit him. See ISCR Case No. 07-00034 at 2 (App. Bd. Feb. 5, 2008). His past honorable service as a linguist weighs heavily towards approval of his security clearance. See ISCR Case No. 07-00034 at 3 (App. Bd. Feb. 5, 2008) (affirming grant of security clearance and commenting “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 put his life in danger on at least one occasion to protect American lives and interests in Afghanistan.”).

A Guideline B decision concerning Afghanistan must take into consideration the geopolitical situation and dangers there.10 Afghanistan is a dangerous place because of violence from the Taliban and terrorists. The Taliban and terrorists continue to threaten the Afghan government, the interests of the United States, U.S. Armed Forces, and those who cooperate and assist the United States. The Afghan government does not fully comply with the rule of law or protect civil liberties in many instances. The United States and Afghan governments are allies in the war on terrorism.

I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude foreign influence and personal conduct security concerns are mitigated, and eligibility for access to classified information is granted.

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

Subparagraphs 1.a through 1.c: For Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraphs 2.a and 2.b: For Applicant

discussion of geopolitical situation and suggesting expansion of whole-person discussion).

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.

____________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/SEAD4 20170608.pdf. of other groups, or locations in order to protect Applicant and his family’s privacy. The cited sources contain more specific information.

3 Applicant’s children were all under the age of 18, held green cards, and resided with Applicant and his spouse when Applicant and his spouse were naturalized as U.S. citizens. Their children meet the criteria for automatic U.S. citizenship. See U.S. Citizenship and Immigration Services website, “Citizenship Through Parents,” https://www.uscis.gov/us-citizenship/citizenship-through-parents. 4 The language of the current Oath of Allegiance is found in the Code of Federal Regulations Section 337.1 and is closely based upon the statutory elements in Section 337(a) of the Immigration and Nationality Act. U.S. Citizenship and Immigration Services, 8 U.S.C. § 1448, https://www.uscis.gov/us- citizenship/naturalization-test/naturalization-oath-allegiance-united-states-america. 5 The source for the information in this paragraph is a statement from an Army colonel who indicated Applicant served as his personal linguist for eight months in the most volatile province in Afghanistan. AE A at 2. 6 The Appeal Board has concluded that contact every two months or more frequently constitutes

also ISCR Case No. 04-09541 at 2-3 (App. Bd. Sep. 26, 2006) (finding contacts with applicant’s siblings 7 The Appeal Board has cogently explained the process for analyzing falsification cases, stating:

(a) when a falsification allegation is controverted, Department Counsel has the burden of proving falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent or state of mind at the time the omission occurred. [Moreover], it was legally permissible for the Judge to conclude Department Counsel had established a prima facie case under Guideline E and the burden of persuasion had shifted to the applicant to present evidence to explain the omission.

ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9, 8 ISCR Case No. 02-30369 at 5 (App. Bd. Oct. 27, 2006) (sustaining denial of security clearance); ISCR Case No. 04-00789 at 7 (App. Bd. June 28, 2006) (reversing grant of security clearance); ISCR Case No. 99-0557 at 4 (App. Bd. July 10, 2000) (reversing grant of security clearance).

9 ISCR Case No. 03-00577 at 5 (App. Bd. Dec. 11, 2006) (sustaining denial of security 10 See ISCR Case No. 04-02630 at 3 (App. Bd. May 23, 2007) (remanding because of insufficient