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ISCR Case 14-04587.h1 — CASE

Case record

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

Decision Date10/7/2015
Statusdenied
LevelHEARING
TypeSTANDARD ISCR
Related decisionSee the appeal decision (Case 14-04587.a1) →
Participants
Judge: Noreen A. Lynch
Applicant's Counsel: Richard L. Morris
Guidelines Evaluated
- Guideline BForeign Influence · Unknown Outcome
- Guideline EPersonal Conduct · Unknown Outcome
- Guideline JCriminal Conduct · Unknown Outcome

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Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 14-04587.h1denied

Case Headnote

ISCR Case No. 14-04587.h1

deniedOct 7, 2015· Hon. Noreen A. Lynch· hearing

Summary

A 31-year-old naturalized U.S. citizen, originally from Afghanistan, was denied a security clearance due to concerns under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The applicant's mother and two brothers are citizens and residents of Afghanistan, with whom she maintains weekly contact and visited in 2014. Her father and another brother reside in Canada, while an Afghan sister lives with her in the United States.

Additionally, the applicant was arrested on September 25, 2013, and charged with Felony Grand Larceny. She subsequently pled guilty to grand larceny and was placed on supervised probation, which is set to conclude in March 2016. This criminal conduct raised questions about her judgment, reliability, and trustworthiness.

Despite the presence of some mitigating factors, the judge determined that the applicant's felony conviction for grand larceny, her ongoing probation, and her familial ties to Afghanistan presented an unacceptable risk of foreign influence and coercion. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant's felony conviction for grand larceny raised significant concerns about her judgment and reliability.
The applicant's familial ties to Afghanistan created a potential risk of foreign influence and coercion.
The applicant's ongoing probation status indicated unresolved issues related to her criminal conduct.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons Creating Potential Conflict of Interest
AG ¶ 31(a)raisedSingle Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)raisedAdmission of Criminal Conduct
AG ¶ 31(d)raisedCurrently on Probation

Mitigating

AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong Ties to the U.S.

Key Rule Quoted

“Eligibility for a security clearance is predicated upon an applicant meeting the criteria contained in the adjudicative guidelines (AG).”
— Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified.

Procedural Posture

SOR issuedOct 22, 2014
Answer filed—Timely response to SOR.
Hearing heldAug 25, 2015Hearing rescheduled from May 22, 2015.
Decision dateOct 7, 2015

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Impact of Criminal Conduct on Security Clearance Eligibility Under Guideline J
Mitigating Factors Regarding Family Ties and Immigration Status in Security Clearance Cases

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found that the applicant had foreign influence concerns due to her family ties in Afghanistan, including her mother and two brothers who are citizens and residents there. However, the judge ultimately ruled in favor of the applicant on all allegations under Guideline B, indicating that the applicant's connections did not pose a significant risk to national security.

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. Home or Property · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s mother and two brothers are citizens and residents of Afghanistan.	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	Credited Deep U.S. Ties
1.b	Applicant calls her mother every week and visited her in 2014.	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	Credited Deep U.S. Ties
1.c	Applicant lives with her Afghan sister who is in the United States.	For Applicant	Sibling in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Credited Deep U.S. Ties
1.d	Her brother lives in Canada with her father.	For Applicant	Parent in Foreign Country Immediate Family	Canada	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Credited Deep U.S. Ties

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: denied

The judge found against the applicant on the personal conduct allegation under Guideline E, concluding that the applicant's criminal conduct raised security concerns. The applicant admitted to the criminal conduct, which was deemed relevant to the personal conduct assessment, leading to a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	The applicant engaged in personal conduct that raises questions about her judgment, reliability, and trustworthiness.	Against Applicant	Questionable Judgment General	—	Denied	—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on the criminal conduct allegation under Guideline J, specifically regarding a felony grand larceny charge. The applicant admitted to the conduct but did not provide sufficient mitigation to overcome the security concerns raised by the charge.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was arrested on September 25, 2013, and charged with Felony Grand Larceny. She pled guilty to grand larceny and was placed on supervised probation, which ends in March 2016.	Against Applicant	Theft or Larceny	Convicted	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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. 14-04587 ) Applicant for Security Clearance

For Government: Philip J. Katauskas, Esq., Department Counsel For Applicant: Richard Morris, Esq.

10/07/2015 ______________

STATEMENT OF CASE

______________

LYNCH, Noreen, A., Administrative Judge:

On October 22, 2014, the Department of Defense (DOD) issued a Statement of Reasons (SOR) alleging security concerns arising under Guideline B (Foreign Influence), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense (DOD) Directive 5220.6. Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines (AG) implemented in September 2006.

Applicant timely answered the SOR and requested a hearing before an administrative judge. A notice of hearing was sent on April 8, 2015, scheduling the hearing for May 22, 2015. The hearing was rescheduled by notice dated June 2, 2015, for August 25, 2015. The Government submitted five exhibits (GX 1-5), which were admitted into the record. Applicant submitted 28 exhibits (AX A-BB) which were admitted into the record without objection. Applicant testified and presented one witness. Based on a review of the pleadings, submissions, testimony and exhibits, I find Applicant has not met her burden regarding the security concerns raised. Security clearance is denied. Procedural and Evidentiary Rulings

The Government, through Department Counsel, requested that I take administrative notice of certain facts relating to Afghanistan. The request and the attached documents are included in the record file. The facts administratively noticed are set out in the Findings of Fact, below.

FINDINGS OF FACT

In her answer to the SOR, Applicant admitted the factual allegations under Guideline B in ¶¶ 1.a-1.d. She admitted the one allegation under Guideline J, but denied the one allegation under Guideline E. Her admissions are incorporated in my findings of fact. I make the following findings:

Applicant is 31 years old and was born in Afghanistan. While in Afghanistan, she worked in the U.S. Embassy. (AX N) She came to the United States in 2008, and became a naturalized U.S. citizen in 2013. (AX G) Applicant is single. (GX 1)

Applicant obtained her undergraduate degree in 2013 from a university in the United States. (AX K) She has been employed with her current employer since 2014. This is her first request for a security clearance. (GX 1)

Applicant’s mother and two brothers (ages 11 and 16) are citizens and residents of Afghanistan. Her father, who has renounced his Afghan citizenship, resides in Canada, and has refugee status in Canada. (AX B) He has applied for permission to allow his wife and two sons to join him in Canada. Applicant has one sister who is residing in the United States and is now a U.S. permanent resident by her marriage to a U.S. citizen. She expects to become a naturalized citizen in 2016. Applicant had one brother who was residing in the United States. He is a citizen of Afghanistan and has applied for refugee status in Canada. He has renounced his Afghan citizenship, and is a resident of Canada. (Tr. 17)

Applicant’s parents have no connection with the Afghan government. Her father was an independent taxi driver, and her mother is an administrative clerk who will soon retire. She has contact with her mother about once a week by phone. (Tr. 35) She traveled to Afghanistan once in 2013 to visit her sick mother. (Tr. 33)

Applicant considers the United States to be her home. She is not interested in living in Afghanistan. She states that the United States gives her everything and in Afghanistan there are no opportunities for women. She believes she was lucky to have the opportunity to come to the United States. (Tr.) She has a voter registration card. (AX I)

Applicant does not own any property in Afghanistan. She has no financial interests in Afghanistan. (Tr. 36) Applicant’s sister came to the United States in 2006. She testified that she attended university in the United States and received her undergraduate degree in 2010. (Tr. 16) Applicant’s sister confirmed that their father became a Canadian resident and his dependents (mother and two teen sons) are undergoing the administrative process to leave Afghanistan and live in Canada. Applicant lives with her sister. (Tr. 18)

Criminal Conduct

Applicant was arrested on September 25, 2013, and charged with Felony Grand Larceny. She pled guilty to grand larceny and was placed on supervised probation, which ends in March 2016. (AX C) Applicant was in a department store and purchased a bag. She was then looking at baby clothes for a gift for a friend. She put the baby clothes in her bag. She then decided not to pay for the clothes and to leave the store. (Tr. 37) When she was leaving the store, she was stopped by the “loss prevention officer.” She was searched and the officer took the baby clothes. Applicant stated that they also confiscated her sunglasses and insisted that they did not belong to her but to the store. (Tr. 38) She explained that is why she was charged with grand larceny because the baby clothes were less then $100, but the sunglasses were more than $200. (Tr. 38) She also stated that she offered to pay for the baby clothes, but the police were called. (Tr. 47) She was adamant that she did not take any sunglasses from the store.

Applicant explained this is an isolated event in her life. She had the money to pay for the baby clothes. She is ashamed, and she does not know why she chose to take the clothes without paying for them. (Tr. 38) She testified that she was taught proper values and she has learned from her mistake. She understands that one bad decision can have bad consequences. (Tr. 39) Applicant stated that she voluntarily entered the plea and has completed 63 hours of community service. (Tr. 39, AX E) Applicant presented a letter from her probation officer. (AX F) Applicant’s probation officer states that she has complied and has been on a lower level of supervision since March 2014. She calls him once a month. As noted, her probation ends in March 2016. The sentence was suspended pending the successful completion of the two years supervised probation. In 2016 it will be determined if the case is dismissed or reduced to a misdemeanor offense. (AX F)

Applicant’s sister is aware of the criminal conduct that is also at issue for Applicant’s security clearance. She testified that Applicant is hard working and very honest. Applicant told her sister that she was shopping and explained that after purchasing a bag in the store, she looked at baby clothes for a gift and decided to put the clothes in her bag, but she did not pay for them. (Tr. 22) Applicant could not explain why she did this. Applicant’s sister was shocked at the behavior.

Personal Conduct

Applicant admitted the information that was raised under the Criminal Conduct Guideline. The Personal Conduct allegation in SOR ¶ 2.a duplicates and incorporates this same conduct. References

Applicant submitted a 2014 performance evaluation, which praised her skills and expertise. She assumes additional responsibilities and is highly efficient and organized. (AX O) She is considered a valued asset to the company.

Applicant has received many awards and certificates from her work, school, and various leadership training over the years. She is a member of the National Society of Collegiate Scholars. (AX N)

She submitted several letters of recommendation from colleagues. Each attested to her trustworthiness. Applicant is described as talented and hardworking. (AX S,U, and V) Her brother-in-law, who is a former Marine, states that he would trust her with security matters. (AX T)

Applicant’s current supervisor, a former military officer, writes that she is both reliable and an outstanding employee. (AX W) She is recognized by her peers as credible and by her seniors for her willingness to support the company mission. (AX W)

Administrative Notice

I take administrative notice of the following facts about Afghanistan, including the fact that Afghanistan has been an independent nation since August 19, 1919, after the British relinquished control. A monarch ruled from 1919 until a military coup in 1973. Following a Soviet-supported coup in 1978, a Marxist government emerged. In December 1979, Soviet forces invaded and occupied Afghanistan. Afghan freedom fighters, known as mujaheddin, opposed the communist regime. The resistance movement eventually led to an agreement known as the Geneva Accords, signed by Pakistan, Afghanistan, the United States, and the Soviet Union which ensured Soviet forces withdrew by February 1989.

The mujaheddin were not a party to the negotiations for the Accords and refused to accept them. As a result, civil war continued after the Soviet withdrawal. In the mid 1990s, the Taliban rose to power largely due to the anarchy and warlordism that arose after the Soviet withdrawal. The Taliban sought to impose an extreme interpretation of Islam on the entire country and committed massive human rights violations. The Taliban also provided sanctuary to Osama Bin Laden, as well as Al Qa’ida, and other terrorist organizations.

After the September 11, 2001 terrorist attacks, demands to expel Bin Laden and his followers were rejected by the Taliban. U.S. forces and a coalition partnership commenced military operations in October 2001 that forced the Taliban out of power by November 2001. A new democratic government took power in 2004. Despite progress made since the Taliban was deposed, Afghanistan still faces many daunting challenges. Among these challenges are defeating terrorists and insurgents, recovering from over three decades of civil strife, and rebuilding a shattered physical, economic, and political infrastructure. The Taliban, Al-Qa’ida, other insurgent groups, and anti-Coalition organizations continue to operate in Afghanistan, resulting in numerous attacks and deaths. Insurgents have targeted non-governmental organizations (NGOs), Afghan journalists, government workers, and UN workers. Instability along the Pakistan-Afghan frontier continued to provide al-Qa’ida with leadership mobility and the ability to conduct training and operational planning, targeting Western Europe and U.S. interests in particular. Kabul, in particular, has seen a rise in militant attacks, including rocket attacks, vehicle- borne improvised explosive devices (IEDs), and suicide bombings.

At this time, the risk of terrorist activities remains extremely high. The country’s human rights record remains poor and violence is rampant. According to recent reports from the U.S. Department of State, insurgents continue to plan attacks and kidnappings of Americans and other Western nationals. Travel warnings are ongoing. Overall, the State Department has declared that the security threat to all American citizens in Afghanistan remains critical, as no part of Afghanistan is immune from violence.

The United States supports the efforts of the Afghan Government to establish a vibrant civil society, one that emphasizes democratic principles through a rule of law and creates accountable and transparent forms of government. The United States and its international partners remain committed to helping Afghans realize their vision for a country that is stable, democratic, and economically successful, and to an Afghan Government committed to the protection of women’s rights, human rights, and religious tolerance.

On May 2, 2012, the United States and Afghanistan signed the Enduring Strategic Partnership Agreement between the Islamic Republic of Afghanistan and the United States of America, a 10-year-strategic partnership agreement (SPA) that demonstrates the United States’ enduring commitment to strengthen Afghanistan’s sovereignty, stability, and prosperity and continue cooperation to defeat Al-Qaida and its affiliates.

In 2013, insurgents conducted a significant number of large vehicle-borne improvised explosive device attacks, targeting Coalition Forces (CF) bases, military convoys, and Afghan government buildings, mostly in southern and eastern Afghanistan, including Kabul. Corruption is endemic throughout society, and flows of money from the military, international donors and the drug trade continue to exacerbate the problem.

POLICIES

“[N]o 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 occupy a position . . . that will give that person access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants 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 and modified.

Eligibility for a security clearance is predicated upon an applicant meeting the criteria contained in the adjudicative guidelines (AG). 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 an applicant may deliberately or inadvertently fail to protect classified information. Such decisions entail a certain degree of legally permissible extrapolation of 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 an applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is not necessarily a determination of the loyalty of an applicant. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense 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 an 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 an 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). “[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

Guideline B (Foreign Influence)

The security concern under Guideline B is set out in AG ¶ 6 as follows:

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.

A disqualifying condition may be raised by “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.” AG ¶ 7(a). A disqualifying condition also may be raised by “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.” AG ¶ 7(b). Finally, AG ¶ 7 (d) “sharing 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” may be disqualifying conditions in this case.

Applicant’s mother and two young brothers are citizens and residents of Afghanistan. She calls her mother every week and visited her in 2014. Applicant lives with her Afghan sister who is in the United States. Her brother lives in Canada with her father. Based on this evidence, AG ¶¶ 7(a) and (b) are raised.

Since the Government produced evidence to raise the disqualifying conditions in AG ¶¶ 7(a) and (b), the burden shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).

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). Nevertheless, 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. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, the country is known to conduct intelligence operations against the United States, or the foreign country is associated with a risk of terrorism.

Security concerns under this guideline can be mitigated by showing that “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 U.S.” AG ¶ 8(a). The totality of an applicant’s family ties to a foreign country as well as each individual family tie must be considered. ISCR Case No. 01-22693 at 7 (App. Bd. Sep. 22, 2003). Similarly, AG 8(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 interest in favor of the U.S. interest” partially applies.

Applicant has presented sufficient information to mitigate the security concerns given her relationships and frequency of contact with her mother and two young brothers in Afghanistan. Her father is a resident of Canada and her sister is living in the United States and by marriage is a U.S. permanent resident citizen. Her other brother is in Canada. Her father is in the process of getting her mother and younger brothers to Canada.

Applicant’s immediate family (sister) is a permanent resident of the United States. Applicant has been in the United States since 2008. She is a naturalized U.S. citizen. Her home is in the United States. She looks forward to fufilling her dreams and goals in the United States.

While Afghanistan’s human rights record under the Taliban was dismal and serious problems continue, its human rights record is slowly improving. Applicant has worked in the U.S. Embassy in Afghanistan. There is no evidence that Applicant or her family has been pressured by any organization to provide any type of information, classified, or otherwise, to Afghanistan.

In every case where a family member lives overseas, there is a risk of pressure on this relative and through them upon the holder of a security clearance. Applicant has ties to the United States and strong ties to her mother in Afghanistan. However, her mother and brothers are in the process of moving to Canada to be with her father. Applicant has presented sufficient mitigation under AG ¶ 8(b) and foreign influence concerns are mitigated.

Guideline J, Criminal Conduct

AG ¶ 30 expresses the security concern pertaining to criminal conduct: “Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.”

AG ¶ 31 describes conditions that could raise a security concern and may be disqualifying:

(a) a single serious crime or multiple lesser offenses;

(b) discharge or dismissal from the Armed Forces under dishonorable conditions;

(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted;

(d) individual is currently on parole or probation; and

(e) violation of parole or probation, or failure to complete a court- mandated rehabilitation program.

Applicant’s admission about committing the shoplifting offense, the evidence of arrest in 2013 for grand larceny, a felony, and the fact that she is still on probation until 2016, is sufficient to raise AG ¶¶ 31(a) and (c) and (d).

AG ¶ 32 provides three conditions that are potentially relevant:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person's life; and

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement. After reviewing the mitigating conditions, I find that since Applicant is still on probation, she has not mitigated the concerns under the criminal conduct guideline. She will complete probation in 2016. She is successfully employed, educated and this is her only criminal incident. She is ashamed of her behavior. However, at this time she has not met her burden of mitigation.

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern pertaining to personal conduct:

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 information.

AG ¶ 16 describes the following conditions that could raise a security concern and may be disqualifying:

(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information;

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information. This includes but is not limited to consideration of:

(1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information;

(2) disruptive, violent, or other inappropriate behavior in the workplace;

(3) a pattern of dishonesty or rule violations; and

(4) evidence of significant misuse of Government or other employer's time or resources. (e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing,....

Applicant admitted in her answer to the SOR that her conduct reflected questionable judgment with regard to the criminal incident in 2013. Her conduct adversely affected her personal, professional, and community standing. AG ¶¶ 16(c) 16(d) and 16(e) are established.

AG ¶ 17 provides conditions that could mitigate security concerns:

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress;

(f) the information was unsubstantiated or from a source of questionable reliability; and

(g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

Applicant acknowledged her criminal behavior in her answer. This was an isolated incident. However, she is still on probation. This was a serious lapse in judgment and is recent. After considering the mitigating conditions outlined in AG ¶ 17, I conclude Applicant has not mitigated the security concern under personal conduct.

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 an applicant’s conduct and all the 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. As noted above, the ultimate burden of persuasion is on the applicant seeking a security clearance.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, as well as the whole-person factors. Applicant is aoung woman who was born in Afghanistan. She came to the United States in 2008. She became a naturalized citizen in 2013. Her mother and two young brothers remain in Afghanistan waiting to join her father who is now living in Canada and is in the process of obtaining visas for his dependents Applicant’s mother and two young brothers). Applicant is single and lives with her sister in the United States. She has no other contacts or interests in Afghanistan. She has mitigated the foreign influence concerns.

In 2013, Applicant purchased a bag in a department store, but then decided to take baby clothes and not pay for them. She acknowledges that she made the choice not to pay for them despite the fact that she had money. She pled guilty and is on supervised probation until 2016. She has completed the community service, but still reports to her probation officer. She has no other criminal incidents. This was an isolated incident. This behavior is unlikely to recur. But since she is still on probation, she has not mitigated the criminal conduct concerns, as well as the personal conduct 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

Subparagraphs 1.a-1.d: For Applicant

Paragraph 2, Guideline J: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraph 3.a: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant a security clearance. Clearance is denied.

NOREEN A. LYNCH. Administrative Judge