DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 12-09415
)
)
Applicant for Security Clearance )
Appearances
For Government: Braden M. Murphy, Esquire, Department Counsel
For Applicant: Pro se
February 21, 2013
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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 October 10, 2011.  On August 16, 2012, the Department of
Defense (DOD) 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 within the Department of Defense after
September 1, 2006.
 
The Applicant acknowledged receipt of the SOR on September 4, 2012.  He
answered the SOR in writing on September 4, 2012, and requested an Administrative
Determination by an Administrative Judge.  Department Counsel issued a File of
Relevant Material (FORM) on December 14, 2012.  The Applicant responded to the
FORM on January 8, 2013.  He stated the following: “No information to add to this
package.  I am currently in AFGHANISTAN working as a linguist for the US ARMY and
as a federal contractor.”  Based upon a review of the pleadings, and exhibits, eligibility
for access to classified information is denied.
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Findings of Fact
In his Answer to the SOR, dated September 4, 2012, the Applicant admitted the
factual allegations in all the Paragraphs of the SOR, without explanations
Foreign Influence
1.a.  The Applicant’s mother is a citizen and resident of Afghanistan.  (Item 5 at
pages 18~19.)  She is a “home maker.”  (Item 7c at page 1.)
1.b. and 1.c.  The Applicant’s two brothers and one sister are citizens and
residents of Afghanistan.  (Item 5 at pages 24~28.)  The Applicant’s sister is a “home
maker.”  (Item 7c at page 1.)  The Applicant’s older brother “is an unemployed former
farmer.”  (Item 7c at page 1.)  The Applicant’s younger brother is a “construction truck
driver.”  (Id.)  This younger brother “was a former intelligence officer.”  (Item 7c at page
2.)  In his November 2011 subject interview, the Applicant “added” the following
regarding his younger brother:
. . . the Taliban was aware of . . . [this younger brother’s] involvement with
the Afghanee [sic] intelligence program and attempted to assassinate . . .
[his younger brother] on several occasions.  He presently resides in . . .
Afghanistan and does not leave his home for fear of assassination.  (Id.)
1.d.  The Applicant admits that his two sister-in-laws are citizens and residents of
Afghanistan.
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 United States 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,
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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.
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 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
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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 mother, two brothers, a sister, and two sisters-in-law are citizens and
residents of Afghanistan.  His younger brother is a former intelligence officer, who is on
the Taliban’s hit list.  I can find no countervailing mitigating condition that is applicable
here.  The first mitigating condition under Paragraph 8(a) is applicable where “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.”  If the Applicant’s younger brother is
taken by the Taliban, it is likely that the Applicant may “be placed in a position of having
to choose between the interests of a foreign individual . . . and the interests of the U.S.”
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.
I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Although it is clear that the Applicant is of
great service to the United States in Afghanistan, as evidenced by accolades from those
with whom he serves in Afghanistan (Item 8b); overall, the record evidence leaves me
with questions or doubts as to Applicant’s eligibility and suitability for a security
clearance.  For this reason, I conclude Applicant has not mitigated the security concerns
arising from his Foreign Influence.
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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: AGAINST APPLICANT
Subparagraph 1.a. Against Applicant
Subparagraph 1.b. Against Applicant
Subparagraph 1.c. Against Applicant
Subparagraph 1.d. Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, 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.
Richard A. Cefola
Administrative Judge