1 
 
 
                                                              
DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 10-06615 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Eric Borgstrom, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines B (Foreign 
Influence) and F (Financial Considerations). Eligibility for access to classified 
information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on April 12, 2010. On 
February 4, 2011, the Defense Office of Hearings and Appeals (DOHA) sent him a 
Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny his 
application, citing security concerns under Guidelines B and F. DOHA acted under 
Executive Order 10865, Safeguarding Classified Information within Industry (February 
20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial 
Personnel Security Clearance Review Program (January 2, 1992), as amended 
(Directive); and the adjudicative guidelines (AG) implemented by the Department of 
Defense on September 1, 2006.  
 
 Applicant received the SOR on April 4, 2011; answered it in an undated 
document; and did not state whether he wanted a hearing. DOHA received his answer 
 
2 
 
 
on March 10, 2011. Department Counsel requested a hearing and was ready to 
proceed on May 28, 2011. The case was assigned to me on June 3, 2011. Scheduling 
of the hearing was delayed because Applicant was deployed to Afghanistan. DOHA 
issued a notice of hearing on June 15, 2011, scheduling the hearing for July 20, 2011. I 
convened the hearing as scheduled. Government Exhibits (GX) 1 through 8 were 
admitted in evidence without objection. Applicant testified and submitted Applicant’s 
Exhibits (AX) A through D, which were admitted without objection. Department Counsel 
submitted a demonstrative exhibit outlining the evidence, which is attached to the record 
as Hearing Exhibit (HX) I. Department Counsel requested that I take administrative 
notice of relevant facts about Afghanistan, and I took administrative notice as 
requested. The request to take administrative notice and supporting documents are 
attached to the record as HX II. DOHA received the transcript (Tr.) on July 28, 2011. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted the allegations in SOR ¶¶ 1.a-1.e 
and denied the allegation in SOR ¶ 2.a. His admissions in his answer and at the hearing 
are incorporated in my findings of fact.  
 
 Applicant is a 44-year-old linguist employed by a defense contractor. He has 
worked for his current employer since April 2010. He has never held a security 
clearance. 
 
Applicant has been deployed to Afghanistan since July 2010, assisting in the 
training of the Afghanistan National Army. His military supervisor, a U.S. Army sergeant 
first class, describes him as reliable and intelligent. (AX A.) He has received a certificate 
of appreciation for his duty performance. (AX B.) 
 
 Applicant was born in Afghanistan. He graduated from a university in Afghanistan 
in 1993 with a bachelor’s degree in economics. He worked for a company that sold eggs 
from 1993 to 1995. In January 1995, he paid a smuggler to take him to Germany, where 
he believed he would have a better life. The smuggler provided him with a false Afghan 
passport and took him to Poland. An accomplice of the smuggler took him by 
automobile to a German city, but he was caught by police and sent back to Poland 
twice. On his third try, he was sent to a refugee camp in Germany, where he worked on 
a farm. (GX 4 at 3; Tr. 43-46.)  
 
In 1999, while living in Germany, Applicant married a naturalized U.S. citizen. In 
October 2000, he came to the United States and was admitted as a permanent resident 
based on his marriage to a U.S. citizen. (GX 5 at 5-6.) He became a U.S. citizen in June 
2006. (GX 1 at 7; Tr. 5 at 5-6.) He worked at a fast-food restaurant until he began 
working for his current employer. (GX 1 at 16; Tr. 49-50.) 
 
Applicant divorced his wife in January 2002. No children were born during the 
marriage. (GX 1 at 22; GX 4 at 4.) 
 
3 
 
 
Applicant’s father, now deceased, held political office in Afghanistan from about 
1965 to 1969. (Tr. 53.) Applicant’s mother, one brother, and one sister are citizens and 
residents of Afghanistan. Applicant talks to his mother and sister in Afghanistan about 
twice a month.  
 
Applicant’s family fled to Pakistan after the Russian invasion of Afghanistan. 
Between 2001 and 2007, he sent between $500 and $700 per month to his mother, a 
brother, and a sister while they were refugees in Pakistan. They returned to Afghanistan 
in 2007. (GX 3 at 4, 6.) 
 
Applicant also has a brother and sister who are citizens and residents of 
Germany. (GX 1 at 23-27.) This brother works for an electric company, and his spouse 
works intermittently as a housekeeper. (Tr. 55-58.) This sister and her spouse are 
intermittently employed in restaurants and grocery stores. (Tr. 62-64.) It has been about 
a year since he talked to this brother and two years since he has talked to this sister. 
(Tr. 72-73.) 
 
 Applicant’s mother has never worked outside the home. His brother lives with 
their mother and works for a construction company in Afghanistan. (Tr. 52.) Applicant’s 
sister in Afghanistan and her spouse are physicians. This sister and her spouse both 
worked for the Afghanistan Health Ministry, but she is now employed by a private 
agency. (Tr. 66-68.). 
 
In April 2010, Applicant told a security investigator that his family knew that he 
had applied for a job with the U.S. Government and would be coming to Afghanistan. 
He also told his family that he would not be able to visit them. (GX 4 at 11.) 
 
During an interview with a security investigator in May 2010, Applicant mentioned 
that he had an Afghan girlfriend with whom he conversed by telephone about once a 
week. (GX 3 at 5.) At the hearing, Applicant stated that he had not talked to her since 
April 2010, and that he had no current girlfriends. (Tr. 70.) 
 
 Applicant has owned a home in the United States since June 2005. He gave 
inconsistent explanations for not making timely payments on his mortgage. In May 
2010, he told a security investigator that he deliberately did not make payments on the 
mortgage for eight months because a friend advised him to stop making payments in 
order to qualify for a loan modification at a more favorable interest rate. (GX 3 at 3.) In 
November 2010, he responded to DOHA interrogatories by stating he was unable to 
afford the payments on his house until he began his current job. (GX 3 at 17.) I find the 
May 2010 explanation more plausible, because he had owned the home and held the 
same job for about five years before he stopped making payments. In July 2010, the 
lender obtained a judgment against him for the entire amount of the loan. (GX 6 at 1.) 
He paid the amount past due, and the judgment was vacated in December 2010. (AX 
D.) 
 
 
4 
 
 
 I have taken administrative notice that Afghanistan has been an independent 
nation since 1919, and it was a monarchy until a military coup in 1973. Following a 
second military coup in 1978, a Marxist government emerged. In December 1979, the 
Soviet Union invaded and occupied Afghanistan, but they were resisted by the Afghan 
mujahidin. The Soviet Union withdrew in February 1989 pursuant to an agreement 
signed by Pakistan, Afghanistan, the United States, and the Soviet Union. The 
mujahidin were not a party to the agreement and refused to abide by it. The result was a 
civil war among several factions, including the Taliban. By the end of 1998, the Taliban 
controlled most of Afghanistan, committed atrocities against minority populations, and 
provided sanctuary to terrorist organizations. U.S. military forces, along with forces from 
a coalition partnership, forced the Taliban out of power by November 2001. With the 
assistance and support of the United States, a new democratic government took office 
in 2004. 
 
 I also have noted that Afghanistan’s human rights record is generally poor, due to 
the continuing insurgency, the weak government, and ongoing recovery efforts from two 
decades of war. In spite of efforts by the United States and the government of 
Afghanistan, it continues to be a violent, unsafe, unstable country. The weak 
government and internal instability have enabled hostile states, non-state actors, 
terrorists, and insurgents to continue operating in Afghanistan, including groups hostile 
to the United States. Insurgents use narcotics trafficking and kidnapping to finance their 
military and technical capabilities. Suicide bombing attacks continue to inflict large 
numbers of casualties. 
 
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 have 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.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines 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 
 
5 
 
 
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 made “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. Thus, a decision to deny a security clearance 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 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. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 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 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).  
 
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 SOR alleges that Applicant’s mother, brother, sister, and girlfriend are 
citizens and residents of Afghanistan (¶¶ 1.a-1.d). It also alleges that from 2001 to 2007 
he sent between $500 and $700 per month to his family residing in Pakistan (¶ 1.e). 
The security concern under this guideline is set out in AG ¶ 6:  
 
Foreign contacts and interests may be a security concern if the individual 
has divided loyalties or foreign financial interests, may be manipulated or 
induced to help a foreign person, group, organization, or government in a 
way that is not in U.S. interests, or is vulnerable to pressure or coercion by 
any foreign interest. Adjudication under this Guideline can and should 
consider the identity of the foreign country in which the foreign contact or 
 
6 
 
 
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. 
 
 Two disqualifying conditions under this guideline are relevant to this case: AG ¶ 
7(a) (“contact with a foreign family member, business or professional associate, friend, 
or other person who is a citizen of or resident in a foreign country if that contact creates 
a heightened risk of foreign exploitation, inducement, manipulation, pressure, or 
coercion”), and AG ¶ 7(b) (“connections to a foreign person, group, government, or 
country that create a potential conflict of interest between the individual’s obligation to 
protect sensitive information or technology and the individual’s desire to help a foreign 
person, group, or country by providing that information”). When foreign family ties are 
involved, 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).  
 
 AG ¶ 7(a) requires substantial evidence of a “heightened risk.” The “heightened 
risk” required to raise this disqualifying condition is a relatively low standard. 
“Heightened risk” denotes a risk greater than the normal risk inherent in having a family 
member living under a foreign government. 
 
 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, “even friendly nations can have profound disagreements with the 
United States over matters they view as important to their vital interests or national 
security.” ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 
2002). Finally, we know friendly nations have engaged in espionage against the United 
States, especially in the economic, scientific, and technical fields. 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, or the country is known 
to conduct intelligence operations against the United States. In considering the nature of 
the government, an administrative judge must also consider any terrorist activity in the 
country at issue. See generally ISCR Case No. 02-26130 at 3 (App. Bd. Dec. 7, 2006) 
(reversing decision to grant clearance where administrative judge did not consider 
terrorist activity in area where family members resided). 
 
 
7 
 
 
 Applicant’s admissions in response to the SOR and at the hearing are sufficient 
to establish the allegations in SOR ¶¶ 1.a-1.c. The facts are sufficient to raise the 
disqualifying conditions in AG ¶¶ 7(a) and (b).  
 
 The evidence shows that Applicant’s relationship with an Afghan girlfriend in 
Afghanistan, alleged in SOR ¶ 1.d, ended more than a year ago. Thus, I conclude that 
SOR ¶ 1.d is not established. The financial aid to Applicant’s family while they were 
refugees in Pakistan, alleged in SOR ¶ 1.e, is evidence of his close relationship with 
family members in Afghanistan, but it has no independent security significance. Thus, I 
have resolved SOR ¶ 1.e for Applicant. 
 
 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). While Afghanistan does not have a record of conducting military or 
economic espionage against the United States, the various insurgent and terrorist 
groups active in Afghanistan who target civilians and U.S. interests in Afghanistan 
preclude application of this mitigating condition.  
 
 Security concerns under this guideline also can be mitigated by showing “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.” AG ¶ 8(b). 
Applicant’s sense of obligation to his family is not “minimal.” He has been a U.S. citizen 
since 2006, but he has no family members in the United States, and his only ties to the 
United States are his residence and his job. I conclude that this mitigating condition is 
not established. 
 
 Security concerns under this guideline also may be mitigated by showing that 
“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.” AG ¶ 8(c). 
There is a rebuttable presumption that contacts with an immediate family member in a 
foreign country are not casual.  ISCR Case No. 00-0484 at 5 (App. Bd. Feb. 1, 2002). 
Applicant has not rebutted this presumption, and his family contacts are frequent and 
regular. Thus, I conclude that this mitigating condition is not established.  
 
Guideline F, Financial Considerations 
 
The SOR alleges an unsatisfied judgment against Applicant for about $168,000. 
The concern under this guideline is set out in AG ¶ 18:  
 
Failure or inability to live within one=s means, satisfy debts, and meet 
financial obligations may indicate poor self-control, lack of judgment, or 
 
8 
 
 
unwillingness to abide by rules and regulations, all of which can raise 
questions about an individual=s reliability, trustworthiness and ability to 
protect classified information. An individual who is financially 
overextended is at risk of having to engage in illegal acts to generate 
funds. 
 
 Applicant denied the allegation and provided evidence that the past-due debt has 
been paid and judgment has been vacated. The evidence reflects that Applicant 
stopped making payments on his home mortgage in order to qualify for a loan 
modification. This evidence is sufficient to raise two disqualifying conditions under this 
guideline: AG ¶ 19(a) (“inability or unwillingness to satisfy debts”) and AG ¶ 19(c) (“a 
history of not meeting financial obligations”). 
 
Security concerns based on financial problems can be mitigated by showing that 
“the behavior happened so long ago, was so infrequent, or occurred under such 
circumstances that it is unlikely to recur and does not cast doubt on the individual=s 
current reliability, trustworthiness, or good judgment.” AG ¶ 20(a). Only one debt is 
alleged, but it arose from eight delinquent payments. The debt was recent and did not 
occur under circumstances making recurrence unlikely. I conclude that this mitigating 
condition is not established. 
 
Security concerns under this guideline also can be mitigated by showing that “the 
conditions that resulted in the financial problem were largely beyond the person=s 
control (e.g., loss of employment, a business downturn, unexpected medical 
emergency, or a death, divorce or separation), and the individual acted responsibly 
under the circumstances.” AG ¶ 20(b). Both prongs, i.e., conditions beyond the person=s 
control and responsible conduct, must be established. Applicant presented no evidence 
of conditions beyond his control. Following the bad advice of a friend, he intentionally 
defaulted on his mortgage payments in order to qualify for a loan modification. This 
mitigating condition is not established.  
 
Security concerns under this guideline also can be mitigated by showing that “the 
individual initiated a good-faith effort to repay overdue creditors or otherwise resolve 
debts.” AG ¶ 20(d). Good faith means acting in a way that shows reasonableness, 
prudence, honesty, and adherence to duty or obligation. ISCR Case No. 99-0201, 1999 
WL 1442346 at *4 (App. Bd. Oct. 12, 1999). When Applicant learned that his request for 
a loan modification had not been approved and the lender had obtained a judgment 
against him, he paid the debt in full. I conclude that this mitigating condition is 
established.  
 
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of the applicant’s 
conduct and all relevant circumstances. An administrative judge should consider the 
nine adjudicative process factors listed at AG ¶ 2(a):  
 
9 
 
 
(1) the nature, extent, and seriousness of the conduct; (2) the 
circumstances surrounding the conduct, to include knowledgeable 
participation; (3) the frequency and recency of the conduct; (4) the 
individual’s age and maturity at the time of the conduct; (5) the extent to 
which participation is voluntary; (6) the presence or absence of 
rehabilitation and other permanent behavioral changes; (7) the motivation 
for the conduct; (8) the potential for pressure, coercion, exploitation, or 
duress; and (9) the likelihood of continuation or recurrence.  
 
 Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a 
security clearance must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole-person concept. I have incorporated my 
comments under Guidelines B and F in my whole-person analysis. Some of the factors 
in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional 
comment. 
 
 Applicant has been deployed to Afghanistan since July 2010 and apparently has 
performed well as a linguist. His supervisor regards him as reliable. Nevertheless, his 
family ties make him vulnerable. I am not convinced that his ties to the United States 
are strong enough to ensure that he will resolve any conflict between the interests of his 
family and United States in favor of the United States.   
 
 After weighing the disqualifying and mitigating conditions under Guidelines B and 
F, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has mitigated the security concerns based on financial considerations, but he 
has not mitigated the security concerns based on foreign influence. Accordingly, I 
conclude he has not carried his burden of showing that it is clearly consistent with the 
national interest to grant him eligibility for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline B (Foreign Influence):   AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.c:    Against Applicant 
  Subparagraphs 1.d-1.e:    For Applicant 
 
 Paragraph 2, Guideline F (Financial Considerations): FOR APPLICANT 
 
  Subparagraph 2.a:     For Applicant 
 
 
10 
 
 
Conclusion 
 
 I conclude that it is not clearly consistent with the national interest to grant 
Applicant eligibility for a security clearance. Eligibility for access to classified information 
is denied. 
 
 
 
LeRoy F. Foreman 
Administrative Judge