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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------- )       ISCR Case No. 11-00556
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Lance Gallardo, Esquire
June 7, 2012
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Decision
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MOGUL, Martin H., Administrative Judge:
On June 13, 2011, 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 July 23, 2011, 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 January 20, 2012. DOHA issued a first notice of hearing on
January 25, 2012, and the hearing was scheduled for February 14, 2012. At the request
of Applicant’s counsel, the hearing was continued. A second notice of hearing was
issued on April 20, 2012, and the hearing was conducted as scheduled on May 1, 2012.
The Government offered Exhibits 1 through 4, which were received without objection.
Applicant testified on his own behalf and submitted Exhibits A through D, which were
also admitted without objection. DOHA received the transcript of the hearing (Tr) on
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May 11, 2012. 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 the Islamic Republic of
Pakistan (Pakistan).  The request and the attached documents were admitted into
evidence as Exhibits 4 and 5. The facts administratively noticed are set out in the
Findings of Fact, below. 
                                            Findings of Fact
In his RSOR, Applicant admitted all of the SOR allegations, 1.a. through 1. h.
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 53 years old. He was born in Afghanistan in 1958 and moved to the
United States in 1982. Applicant became a naturalized United States citizen in 1989. He
has been married since 1993, and he has three daughters. His wife was also born in
Afghanistan, and she became a United States citizen in 1999 or 2000. She is a
housewife. His three children are United States born citizens. Applicant’s father is
deceased, and his mother is a resident of the United States and a naturalized United
States citizen. Applicant also has two grandsons who live with Applicant and his
daughter. Additionally, Applicant’s sister-in-law, her husband, and several cousins also
live in the United States. (Tr at 111-112.) 
Applicant owns the home in which he and his family live. His home was recently
appraised at $340,000. Applicant strongly expressed his feelings of loyalty and affection
for the United States. (Tr at 100-107.) 
Applicant is solely a United States citizen and only has a United States passport.
Applicant is employed by a defense contractor, and he seeks a DoD security clearance
in connection with employment in the defense sector.
(Guideline B - Foreign Influence) 
The SOR lists eight 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, Applicant admitted in his RSOR all of the allegations listed:
 
1.a. Applicant has a brother who is a citizen and resident of Germany. Applicant
testified that his brother has lived in Germany since 1982.  Applicant last spoke to his
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brother in 1999 or 2000, and he does not have a good relationship with this brother. (Tr
at 51-53.)
1.b. Applicant has a brother who is a citizen of Afghanistan and resident of
Germany. Applicant testified that he last spoke to this brother in the same 1999 to 2000
time frame, and he also does not have a good relationship with this brother.  (Tr at 53-
54.)
1.c. Applicant has a sister who is a citizen and resident of Pakistan. Applicant
testified that his sister is a housewife. (Tr at 110.) Her husband, who is in his late 70s,
did work for the Government of Pakistan in the 1980s. (Tr at 41-48.) 
1.d. Applicant has two sisters who are citizens and residents of Germany.
Applicant testified that they both emigrated to Germany from Pakistan in the early
1980's. He believes that they both have become naturalized German citizens. He last
saw his sisters in the 1980s, and he stated that he does not have a close relationship
with either of them. He has not spoken to one of the sisters since 1999, and the other
sister called him for a brief conversation in 2011, but before that he had not spoken to
her since 1999. (Tr at 55-60.) 
1.e. Applicant has a father-in-law who is a citizen of Afghanistan and resident of
the United States. He served in the Afghanistan Government. He has lived in the United
States since 2007, and he lives with Applicant’s sister-in-law. He has not done any work
for the Afghan Government since he moved to the United States. Applicant does not
have a close relationship with his father-in-law. He estimated that his last conversation
with his father-in-law was in 2009 or 2010. (Tr at 60-69.)
1.f. Applicant has an uncle who is a citizen and resident of Afghanistan. Applicant
testified that this individual is the husband of his aunt. He does not work for the Afghan
Government. He is wealthy and owns real estate and orchards. Applicant estimated his
age to be in the late 70s. Applicant characterized him as very pro-American, and
Applicant had his last conversation with his uncle in 2009 or 2010. He stated that he is
not very close to this person. (Tr at 70-74.) 
1.g. Applicant has a cousin who is a citizen and resident of Pakistan. Applicant
testified that this person is actually his nephew, not his cousin, and he is the son of
Applicant’s oldest sister. Applicant estimated his age to be late 30s. Applicant described
his relationship with his nephew as “pretty good.” Applicant’s sister, who is Applicant’s
nephew’s mother, told Applicant that her son works for the United Nations. He had
previously worked for the Government of Pakistan. Applicant did not know what his
nephew had done in his previous position or what he is doing in his current position.
Applicant testified that he talks to his nephew from one to four times a year. (Tr at 75-
81.) 
1.h. Applicant partially inherited from his father some property in Afghanistan.
Applicant testified that this property is owned by many relatives. He does not receive
any income from this property, nor does he have any legal rights to sell or encumber the
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property. Currently relatives of Applicant are living in the house. Applicant does not
know the value of the property, and he does not believe that he would receive any
proceeds if it was sold. (Tr at 81-87.) 
Mitigation
Applicant submitted two character letters from individuals who know Applicant in
his current employment position. (Exhibits A and B.) A United States Air Force
Lieutenant Colonel described Applicant as someone who, “has a positive attitude,
strong work ethic and he is a leader among his peers; he possesses an incredible ability
to rally his teammates to achieve tough challenges.” Exhibit C is a Certificate of
Appreciation that Applicant received for his exceptional work for a United States Task
Force. 
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
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 Pakistan
Pakistan has extensive networks operating within its borders. Members of the
Taliban, al-Qu’ada, extremists, foreign insurgents, and Pakistani militants have re-
exerted their holds over areas in Pakistan. Al-Qu’ada leadership in Pakistan supported
militants in conducting attacks in Afghanistan and provided funding, training, and
personnel to facilitate terrorist operations. 
Overall Pakistan has intensified counterinsurgency efforts, but its record in
dealing with militants has been mixed. The U.S. Department of State has concluded
that, despite efforts by Pakistani security forces, al-Qu’aida terrorists, Afghan militants,
foreign insurgents and Pakistani militants continue to find safe havens in portions of
Pakistan, and have operated in those areas to organize, train, and plan attacks against
the United States and its allies in Afghanistan, India, and Europe.
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The human rights situation in Pakistan remains poor. Major problems include
extrajudicial killings, torture and disappearances. Additional problems include poor
prison conditions, arbitrary arrest, widespread Government corruption, rape, and
widespread trafficking in persons. 
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.
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.
 
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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.
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 family, who are citizens and residents of Afghanistan and
Pakistan, 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 came to the United States in 1982, and became a naturalized United
States citizen in 1989. Applicant’s wife, his three daughters, his mother, and his two
grandsons are all residents and citizens of the United States. Applicant’s sister-in-law
and cousins also reside in the United States. Applicant purchased a home in the United
States, and he has no property outside of the United States. None of his relatives in
Afghanistan or Pakistan now work for their respective Governments, and his contact
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with his brothers and sisters is extremely infrequent. Finally, Applicant testified rather
passionately and credibly that he is devoted to the United States.  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
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, and the very positive character
letters submitted by Applicant, 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.h.: For Applicant
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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