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ISCR Case 04-08155.h1 — CASE

ISCR Case 04-08155.h1granted

Case Headnote

ISCR Case No. 04-08155.h1

grantedJan 24, 2006· Hon. Joseph Testan· hearing

Summary

This case involved a 65-year-old U.S. citizen and defense contractor, originally from Afghanistan, whose security clearance application raised concerns under Guidelines B (Foreign Influence), C (Foreign Preference), and E (Personal Conduct). The Statement of Reasons cited that the applicant had two sons who were Afghan citizens, one residing in Afghanistan, potentially placing him in a position to be exploited by the Afghan government. Additionally, the applicant had served 20 years in the Afghan military. A separate concern under Guideline E noted that the applicant provided a false "no" response to Question 33 on his October 17, 2003 Security Clearance Application regarding bankruptcy filings within the previous seven years.

Disqualifying conditions E2.A2.1.2.1 and E2.A3.1.2.3 were raised. However, mitigating conditions E2.A2.1.3.1 and E2.A3.1.3.2 were applied. The judge determined that the applicant's sons were not agents of Afghanistan and were not in a position to be exploited. The applicant demonstrated loyalty to the United States and a willingness to resist any coercion.

Crucially, the applicant's foreign military service occurred before he obtained U.S. citizenship. Based on these findings, the security clearance was GRANTED.

Why the Applicant Prevailed

The applicant's sons were not considered agents of Afghanistan or in a position to be exploited.
The applicant demonstrated loyalty to the United States and would resist any coercion.
The applicant's foreign military service occurred before he became a U.S. citizen.

Conditions Referenced

Disqualifying

E2.A2.1.2.1raisedForeign Influence
E2.A3.1.2.3raisedForeign Military Service

Mitigating

E2.A2.1.3.1appliedFamily Members Not Agents of a Foreign Power
E2.A3.1.3.2appliedForeign Military Service Occurred Before Obtaining U.S. Citizenship

Key Rule Quoted

“It is clearly consistent with the national interest to grant or continue a security clearance for applicant.”

Procedural Posture

SOR issuedNov 23, 2004
Answer filedDec 5, 2004
Hearing heldJan 12, 2006
Decision dateJan 24, 2006

Cite For

Family Ties and Foreign Influence Under Guideline B
Foreign Military Service Considerations Under Guideline C
Mitigating Conditions Related to Foreign Influence and Military Service

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 two sons are citizens of Afghanistan, with one residing there, but determined that this did not leave the applicant vulnerable to coercion or pressure. The applicant was deemed reliable and trustworthy, leading to a decision to grant the security clearance.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Children · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	The applicant has two sons who are citizens of Afghanistan, one of whom resides in Afghanistan.	For Applicant	Sibling in Foreign Country Immediate Family	Afghanistan	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
1.b	The applicant's son who resides in Afghanistan may be in a position to be exploited by the Afghan government.	For Applicant	Sibling in Foreign Country Immediate Family	Afghanistan	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other

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 C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The applicant served in the Afghan military for 20 years, which raised concerns under Guideline C. However, the judge found that this service occurred before the applicant became a U.S. citizen and credited the applicant's demonstrated preference for the United States over the past 24 years, resulting in a favorable finding.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	The applicant served in the Afghan military for 20 years.	For Applicant	Foreign Military or Government Service	Admitted	(c) failure to use a U.S. passport when entering or exiting the U.S.	(b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference	—

Descriptive standardized rendering of a decided public case (Guideline C). 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 did not warrant disqualification. The applicant's responses regarding his financial history were not deemed intentional falsifications, leading to a favorable outcome for Guideline E.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant's "no" response to Question 33 on the October 17, 2003 Security Clearance Application (SCA) was false because he had filed for bankruptcy during the previous seven years.	For Applicant	Falsification Security FormNOT DELIBERATE	Financial	Denied	—	(a) prompt, good-faith correction before being confronted	—
2.b	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—

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

DATE: January 24, 2006

In Re:

---------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 04-08155

DECISION OF ADMINISTRATIVE JUDGE

JOSEPH TESTAN

SYNOPSIS

The fact that one of applicant's sons is a citizen and resident of Afghanistan, and the other son is a citizen of Afghanistan residing in the United States, does not leave applicant vulnerable to coercion or pressure. Clearance is granted.

STATEMENT OF CASE

On November 23, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as administratively reissued on April 20,1999), issued a Statement of Reasons (SOR) to applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

Applicant responded to the SOR in writing on December 5, 2004. The case was assigned to the undersigned on November 30, 2005. A Notice of Hearing was issued on December 21, 2005, and the hearing was held on January 12, 2006. The transcript was received on January 23, 2006.

RULINGS ON PROCEDURE

At the hearing, Department Counsel moved to amend the SOR by (1) deleting Allegations 3a and 3band (2) changing the date in Allegation 3cfrom July 1, 2003 to October 17, 2003. Applicant did not object, and Department Counsel's Motion was granted (TR 57-60).

FINDINGS OF FACT

Applicant is a 65 year old employee of a defense contractor. Applicant was born and raised in Afghanistan. He served in the Afghan military for 20 years. When the Soviet Union invaded Afghanistan, applicant refused to do what they wanted him to do so they jailed him for two years. When he was released, he and his family (wife and three children) fled to Pakistan. After several months in Pakistan, they made their way to a European country. Shortly thereafter, in approximately July 1981, they moved to the United States. Applicant has lived here since then. In 1999, he became a United States citizen (Exhibit 2). His wife became a United States citizen before he did.

As noted above, applicant has three children. His daughter is a United States citizen living in the United States. His two sons are still Afghan citizens but have United States green cards. One lives in the United States. The other son, who came to the United States when he was eight years old, returned to Afghanistan about a year ago. He made the move over the objection of applicant and his wife who told him it was too dangerous. They also told him, in essence, that if he insisted on going and something bad happened, he was on his own.

Applicant's "no" response to Question 33 on the October 17, 2003 Security Clearance Application (SCA) was false because he had filed for bankruptcy during the previous seven years. However, the evidence establishes that applicant did not intentionally falsify the SCA (TR at 61-63, 72-74).

Exhibits C, D, E, F, and G are letters and certificates of appreciation from people who have worked with applicant while he supported Operation Enduring Freedom. These exhibits establish that applicant is a hard working and dedicated individual who has done valuable work for the United States government.

CONCLUSION

With respect to Guideline B, the evidence establishes that applicant's two sons are citizens of Afghanistan, and that one of them resides there. These facts require application of Disqualifying Condition E2.A2.1.2.1 (an immediate family member . . . is a citizen of, or resident or present in, a foreign country).

Based on the evidence presented, I conclude that applicant's sons are not agents of Afghanistan, or in a position to be exploited by Afghanistan in a way that could force applicant to choose between loyalty to them and loyalty to the United States. I further conclude that applicant is a reliable and trustworthy individual who is loyal to the United States, and that in the unlikely event pressure was exerted upon him to compromise classified information, he would resist it, and would report the incident to the proper authorities. Based on the foregoing, Mitigating Condition E2.A2.1.3.1 (a determination that the immediate family member(s) . . . in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States) is applicable, and Guideline B is found for applicant.

With respect to Guideline C, the evidence establishes that applicant served in the Afghan military for 20 years. This fact requires application of Disqualifying Condition E2. A3.1.2.3 (military service . . . for a foreign country). Since this service occurred before he immigrated to the United States and became a United States citizen, he qualifies for Mitigating Condition E2.A3.1.3.2 (foreign military service occurred before obtaining United States citizenship). Given this itigating Condition, and the fact that applicant has shown a clear preference for the United States during the past 24 years, Guideline C is found for applicant.

FORMAL FINDINGS

GUIDELINE B: FOR THE APPLICANT

GUIDELINE C: FOR THE APPLICANT

GUIDELINE E: FOR THE APPLICANT

DECISION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for applicant. ____________________________

Joseph Testan

Administrative Judge

FOOTNOTES

04-08155.h1 FOR GOVERNMENT Melvin A. Howry, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-08155.h1.html[7/2/2021 3:33:56 PM] 04-08155.h1