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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 11-00204
)
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se
October 25, 2012
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Electronic Questionnaires for Investigations
Processing (e-QIP) on April 8, 2010.  On June 15, 2011, the Defense Office of Hearings
and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security
concerns under Guideline B Foreign Influence for the 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 within the
Department of Defense after September 1, 2006. 
The Applicant acknowledged receipt of the SOR on August 13, 2011.  He
answered the SOR in writing, while deployed as an interpreter in Afghanistan, sometime
thereafter, and requested a hearing before an Administrative Judge.  DOHA received
the request on or before October 6, 2011, and I received the case assignment on
October 14, 2011.  As the Applicant was deployed in Afghanistan until he was
scheduled to come home on leave sometime between June 15 and July 15 of 2012, I
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granted the Applicant’s request for a delay of his hearing until July of 2012.  DOHA
issued a notice of hearing on April 5, 2012, and I convened the hearing as scheduled on
July 11, 2012.  The Government offered Exhibits (GXs) 1 and 2, which were received
without objection.  The Applicant testified on his own behalf and submitted Exhibit
(AppX) A1, which was received without objection.  The gravamen of this case revolved
around the status of the Applicant’s father, who was due to arrive in the U.S. in
September of 2012.  At the request of the Applicant, and with the concurrence of
Department Counsel, the hearing was therefore continued until September 5, 2012.
The Applicant testified further at this continued hearing.  DOHA received the transcripts
of the hearing on July 19. 2012 (TR1), and September 13, 2012 (TR2), respectively.  I
granted the Applicant’s request to keep the record open until October 5, 2012, to submit
additional matters.  On October 1, 2012, he submitted Exhibits A2 and B, which were
received without objection.  The record closed on October 5, 2012.  Based upon a
review of the pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to Afghanistan.  The request was granted.  The request, and the
attached documents, were not admitted into evidence, but were included in the record.
The facts administratively noticed are set out in the Findings of Fact, below. 
Findings of Fact
In his Answer to the SOR, the Applicant admitted the factual allegations in all the
Subparagraphs of the SOR, without explanation.
Guideline B - Foreign Influence
The Applicant was born in Afghanistan in 1987.  (TR1 at page 23 line 23 to page
25 line 9, and TR2 at page 9 line 13 to page 10 line 18.)  After the rise of the Taliban
during a period of civil war, he and his family fled to India in 1990.  (Id.)  In 2003, at the
age of 16, his family, minus his father who returned to Afghanistan after the fall of the
Taliban, immigrated to the U.S. as refugees.  (TR2 at page 11 line 8 to page 12 line 11.)
In October of 2010, he became a U.S. citizen.  (TR2 at page 15 lines 11~25.)  He has
been educated in the U.S. since his arrival, and now serves with U.S. forces as an
interpreter in Afghanistan.  (TR2 at page 16 line 1 to page 19 line 9.)
1.a.~1.d.  The Applicant’s father is a citizen of Afghanistan, but now resides in
the U.S.  This is evidenced by his sworn Declaration, by his green card, and by his
social security card.  (Declaration, and AppXs A2 and B.)  He is a retired senior officer
from the Afghan Army.  (TR2 at page 21 lines 3~11.)  He receives no pension from the
Afghan government, and is supported solely by his family in the U.S.  (TR2 at page 29
line 20 to page 30 line 8.)
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The Applicant averred credibly that he cannot be coerced to put the interests of
his father above those of the U.S.  (TR at page 25 line 8 to page 26 line 25.)  His
character in this regard is attested to by U.S. Army officers who serve with the Applicant
in Afghanistan, by his certificates of appreciation, and by the unit patches he has been
awarded in thanks for his service.  (AppX A1.)
I also take administrative notice of the following facts.  Afghanistan has been an
independent nation since 1919.  However, in 1989, a civil war ensued with the
departure of the Soviet Union’s forces, who had occupied Afghanistan for ten years.  In
the mid-1990s, the Taliban rose to power.  However, the Taliban were forced out of
power in 2001, by U.S. forces and a coalition partnership.  After a few years of control
by an interim government, democratic elections took place in 2004 and again in 2009.
However, despite some tactical defeats and operational setbacks in 2010, the Taliban
have continued to threaten U.S. and international goals in 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.
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.
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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
Paragraph 6 of the adjudicative guidelines sets out the security concern relating
to Foreign Influence:
Foreign contacts and interests may be a security concern if the individual
has divided loyalties or foreign 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 a
foreign interest.
Here, Paragraphs 7(a) and 7(b) are arguably applicable: 7(a) “contacts with a
foreign family member . . . 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 7(b) “connections to a foreign person . . 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 . . . by
providing that information.”  The Applicant’s father is a citizen of Afghanistan, and was a
senior officer there.  These are clearly countered, however, by the first and second
mitigating conditions, as 8(a) “the nature of the relationships with foreign persons, . . .
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 . . . and the interests of the U.S.”; and 8(b)
“there is no conflict of interest [as] 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.”  The Applicant has lived in the U.S. since
the age of 16, is a U.S. citizen, serves the U.S. military in Afghanistan, and his father is
now a permanent resident of the U.S.  Furthermore, I find the Applicant cannot be
coerced by the government of Afghanistan or any other government vis-a-vis his father,
who now resides in the U.S.
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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.  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.
The Administrative Judge should also 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.
The record shows that the Applicant understands his responsibility to the U.S.,
and serves this country in Afghanistan.  Furthermore, he has the unqualified support of
those who he supports as an interpreter in the field of combat.  (AppX A1).
I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Overall, the record evidence leaves me
without questions or doubts as to Applicant’s eligibility and suitability for a security
clearance.  For all these reasons, I conclude Applicant mitigated the security concerns
arising from his alleged Foreign Influence.
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
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: 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 national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge