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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-02046
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
December 6, 2011
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Decision
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MOGUL, Martin H., Administrative Judge:
On May 13, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the security concerns under Guideline B for
Applicant. The action was taken 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),
effective after September 1, 2006. 
 
On June 26, 2010, Applicant replied to the SOR (RSOR) in writing, and he
requested a decision based on a hearing before an Administrative Judge. I received the
case assignment on August 10, 2010. DOHA issued three notices of hearing: the first
on October 29, 2010, for a hearing set for November 17, 2010; the second on February
24, 2011, for a hearing set for March 15, 2011; and the final one on August 3, 2011, for
a hearing that was convened on August 18, 2011. Applicant had requested a
continuance for the first two hearing dates because he was engaged in Afghanistan with
the United States Marine Corps (USMC). At the hearing, the Government offered
Exhibits 1 through 5, which were received without objection. Applicant testified on his
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own behalf and submitted Exhibit A, which was also admitted without objection. DOHA
received the transcript of the hearing (Tr) on August 26, 2011. I granted Applicant’s
request to keep the record open until September 15, 2011, to submit additional
documents, but no additional evidence was received. Based upon a review of the
pleadings, exhibits, and the testimony of Applicant, eligibility for access to classified
information is granted.
Request for Administrative Notice
Department Counsel requested that I take administrative notice of certain facts
relating to the Republic of Afghanistan (Afghanistan) and United Arab Emirates (UAE).
The request and the attached documents were admitted into evidence as Exhibit 5. The
facts administratively noticed are set out in the Findings of Fact, below. 
                                            Findings of Fact
In his RSOR, Applicant admitted SOR allegations 1.a., 1. c., and1.d., and he
denied 1.b. The admitted allegations are incorporated herein as findings of fact. 
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant, and upon
due consideration of that evidence, I make the following additional findings of fact: 
Applicant is 34 years old. He is unmarried and has no children. Applicant was
born in Afghanistan in 1977 and moved to India with his parents and two sisters in 1992.
In 1993, he moved with his family to the United States, and has been a United States
resident since then. He became a naturalized United States citizen in 2004. Applicant’s
parents are deceased, and his two sisters are United States citizens and residents. He
received a Bachelor of Science degree in 2009. Since becoming a United States citizen,
Applicant testified that he has voted in United States elections and paid his proper
taxes. (Tr at 57.)  Applicant is employed as a linguist for the USMC, and he seeks a
DoD security clearance in connection with his employment in the defense sector.
(Guideline B - Foreign Influence) 
The SOR lists four allegations regarding Foreign Influence, under Adjudicative
Guideline B, which will be reviewed in the same order as they were listed on the SOR.
As stated above, in his RSOR, Applicant admitted all of the allegations listed excepted
1.b.:
 
1.a. Applicant's cousin is a citizen of Afghanistan and serves in the Afghanistan
government as a senior official. Applicant testified that his cousin used to reside in the
United States with his family, and was a United States citizen, working as an engineer.
In 2001, he returned to Afghanistan to help with the development of the country, first
working as an adviser, and then as a high level government official. When this
individual, who is Applicant’s first cousin, lived in the United States as a private citizen,
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Applicant saw him approximately one time a month. Applicant has had no contact, in
any manner, with his cousin since 2006. (Tr at 29-33.)
1.b. It is alleged in the SOR that Applicant maintains contact with an associate
who is a citizen of Pakistan and resides in the UAE. Applicant testified that this
individual is a real estate broker, and his contact with this person was for the purchase
of the real estate that is the subject of 1.c., below. Applicant denied this allegation in his
ROR and at the hearing because his last contact with this person was in the summer of
2008. (Tr at 33-35.)
1.c. It is alleged in the SOR that Applicant and his sister own real estate in UAE
that is worth approximately $300,000 to $350,000. Applicant testified that his sisters and
he inherited a house from his father worth approximately $400,000, and in 2005, he
returned to Afghanistan and sold the house. In 2008, he and his younger sister used the
proceeds of the house in Afghanistan to purchase, for an investment, two offices in a
commercial building in the UAE for approximately $350,000. (His older sister gave up
her share to his younger sister and him.) Applicant testified that he and his sister would
be willing to sell the property, which has diminished greatly in value, but he is not sure
he will be able to sell it at this time because of its diminished value. The building, which
was built after the purchase, is still not occupied. He estimated the current value of the
property to be welll under $200,000.  Applicant owns no other property and has no other
ties to the UAE.  (Tr at 35-42, 72-74.) He estimated his net assets in the United States
to total slightly less than $200,000. (Tr at 75.)
1.d. Applicant has a bank account in Afghanistan with a value of approximately
$2,300 to $2,700. Applicant testified that this account was initially opened for the
purpose of depositing the proceeds from the sale of the house in Afghanistan that he
inherited form his father. He indicated that to close the account, he must be present in
Afghanistan. He has attempted on several occasions to close the account over the
phone, but he has been unsuccessful. He does intend to close the account when he is
able to do so. (Tr at 43-45.) 
Mitigation
Applicant submitted an extremely positive character letter from a Company
Commander of the USMC, for whom Applicant worked an a linguist. (Exhibit A.)  He
described Applicant as “a dedicated worker displaying a desire to aid in the future
success of Afghanistan. He is intelligent, wise, and culturally sensitive . . . He has
proven to be an enormous asset to the U.S. Marine Corps and the Marines that he
serves.”
Current Status of Afghanistan
Afghanistan has been an independent nation since August 1919, after the British
relinquished control. A monarchy ruled from 1919 until a military coup in 1973. Following
a Soviet supported coup in 1978 a Marxist government emerged. In 1979, Soviet forces
invaded and occupied Afghanistan, and the Soviets withdrew in 1989. After the
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withdrawal a civil war continued, and in the mid 1990s the Taliban rose to power. The
Taliban committed massive human rights violations and provided sanctuary to Osama
Bin-Laden and Al Quaida. After the September 11, 2001 terrorist attacks the United
States forces and a coalition commenced military operations in October 2001, and
forced the Taliban out of power and a new democratic government was installed in
2004. 
Afghanistan’s human rights record has remained poor, and the Afghan-Taliban
dominated insurgency has become increasingly frequent, sophisticated, and
destabilizing. 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.
Current Status of the UAE 
The UAE is a federation of emirates, each with its own ruler. The federal
government is a constitutional republic, headed by a president and council of ministers.
However, traditional rule in UAE is generally patriarchal, with political allegiance defined
in terms of loyalty to tribal leaders. There are no democratically elected legislative
institutions or political parties, and no general elections. 
According to the United States State Department, the UAE has some problems
with respect to human rights, including: arbitrary arrest and indefinite incommunicado
detention; government restrictions on civil liberties; and a lack of judicial independence.
The United States has had friendly relations with the UAE since its formation in 1971,
and the UAE contributes to the continued security of the Persian Gulf, and is a partner
in the campaign against terrorism, providing military, diplomatic and financial
assistance. However, the UAE was one of only three countries to recognize the Taliban
as the legitimate government of Afghanistan. 
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG). In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are useful in evaluating an
applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The administrative judge’s over-arching
adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c),
the entire process is a conscientious scrutiny of a number of variables known as the
“whole-person concept.” The administrative judge must consider all available, reliable
information about the person, past and present, favorable and unfavorable, in making a
decision.
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The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
Applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk the applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline B, Foreign Influence
AG ¶ 6 expresses the security concern regarding Foreign Influence: 
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.
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AG ¶ 7 describes conditions that could raise a security concern and may be
disqualifying. Those that could be applicable in this case include the following: 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.” Applicant’s cousin, who is a senior member of the Afghanistan government,
makes AG ¶ 7(a) a concern to the Government. I find that 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  . . . and the
individual’s desire to help a foreign person, group, or country by providing that
information,” is also applicable in this case.
AG ¶ 8 provides conditions that could mitigate security concerns. I find that 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,” is applicable to this Applicant and controlling for the following reasons:  
Applicant moved with his family to the United States in 1993, and has been a
United States resident since then. He became a naturalized United States citizen in
2004. Applicant’s  parents are deceased, and his two sisters are United States citizens
and residents.  Applicant received his college education in the United States, and has
been employed only in the United States.
Applicant has had no contact with his cousin since 2006, nor any contact with the
real estate agent in the UAE since 2008. In his current position as a linguist for the
USMC, Applicant earns more than $180,000 a year, and his only asset outside of the
United States is part of a building that he owns with his sister, which now has an
estimated value of less than $200,000, and that he plans to sell as soon as it is feasible.
His total assets in the United States are slightly  less than $200,000. Based on all of
these reasons, I conclude Guideline B for Applicant.
Whole-Person Concept
Under the whole-person concept, the administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of the applicant’s
conduct and all 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
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for the conduct; (8) the potential for pressure, coercion, exploitation, or
duress; and (9) the likelihood of continuation or recurrence.
Under AG ¶ 2 (c), the ultimate determination of whether to grant eligibility for a
security clearance must be an overall commonsense judgment based upon careful
consideration of the guidelines and the whole-person concept.  
  
I considered the potentially Disqualifying and Mitigating conditions in light of all
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why Mitigating Condition  AG ¶ 8(b) applies, considered together with the
positive character letter on behalf of Applicant from his Company Commander, I find
that the record evidence leaves me with no significant questions or doubts as to
Applicant’s eligibility and suitability for a security clearance under the whole-person
concept. For all these reasons, I conclude Applicant has mitigated the 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 through 1.d.: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
Martin H. Mogul
Administrative Judge