DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
{Redacted} )      ISCR Case No. 12-05231
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Department Counsel
For Applicant: Catie E. Young, Attorney At Law 
Griffith, Young & Lass
April 30, 2014
______________
Decision
______________
LOKEY ANDERSON, Darlene D., Administrative Judge:
           Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP), on June 2, 2010, and August 8, 2011.  (Government Exhibits 1 and 2.)  On
December 3, 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 responded to the SOR on January 10, 2013, and he requested an
administrative hearing before a DOHA Administrative Judge.  This case was first
assigned to an Administrative Judge on May 15, 2013.  At that time, Applicant was on
assignment in Afghanistan until December 2013.  The case was transferred to another
Administrative Judge on December 19, 2013.  A notice of hearing was issued on
December 20, 2013, and a hearing by video-teleconference was scheduled for January
2, 2014.  At Applicant’s attorney’s request, the case was transferred to Woodland Hills,
California, on January 17, 2014.  The case was assigned to the undersigned
Administrative Judge on January 27, 2014, and a notice of hearing was issued on
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February 13, 2014, scheduling the hearing for March 21, 2014.  At the hearing the
Government presented six exhibits, referred to as Government Exhibits 1 through 6,
which were admitted without objection.  The Applicant testified on his own behalf.  He
also presented twenty exhibits, referred to as Applicant’s Exhibits A through T, which
were also admitted into evidence without objection.  The record remained open until
close of business on April 1, 2014, to allow the Applicant to submit additional
documentation.  The Applicant requested an extension until April 4, 2014, but
submitted no additional documents.  The official transcript (Tr.) was received on April 1,
2014.  Based upon a review of the pleadings, exhibits, and testimony, eligibility for
access to classified information is denied.
REQUEST FOR ADMINISTRATIVE NOTICE
Department Counsel requested that I take administrative notice of certain facts
concerning the current political conditions in Afghanistan.  (See Tr. pp. 23-26.)  There
was no objection from Applicant.  (See Tr. p. 26.)  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. 
FINDING OF FACTS
The Applicant is 63 years old and is divorced a third time, with two children.  He
is employed with a defense contractor and holds the position as a Cultural Advisor and
Linguist, and a security clearance in necessary in connection with his employment.
The Government opposes the Applicant's request for a security clearance, on the
basis of allegations set forth in the Statement of Reasons (SOR).  The following findings
of fact are entered as to each paragraph and guideline in the SOR:
Paragraph 1 (Guideline B - Foreign Influence).  The Government alleges in this
paragraph that the Applicant is ineligible for clearance because he has foreign contacts
that could create the potential for foreign influence, which could result in the
compromise of classified information.
Applicant was born in {redacted} Afghanistan in {redacted}.  He grew up in a very
influential family, and studied at the school of law and political science at the university
there.  While in college, he met his first wife, who was also born in {redacted}
[Afghanistan] and they were married in 1974.  They have two children who were born in
Afghanistan.  Both of Applicant’s children are now naturalized United States citizens,
and reside with the Applicant in the United States.  Applicant divorced his first wife in
1995.  He married his second wife, a woman from Armenia, who he met on line, in
2001.  After three months they filed for divorce.  Applicant married a third time in 2010,
and his divorce was final December 2013.  
After graduating from college, Applicant served in the Afghan military, in an
engineering unit, for six months, to fulfill the government mandate of mandatory military
service.  He reached the rank of second lieutenant.  Upon completion of his military
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service, Applicant worked at a University in Afghanistan from 1976 to 1978.  In 1978
Applicant became a father to his first born, and lost his job, as a result of political turmoil
occurring in Afghanistan.  He found employment in the banking industry from 1978 to
1987. {Redacted}
In 1979 Soviet Union forces invaded Afghanistan and took over the government
in Kabul.  Applicant strongly opposed the Soviet political agenda and the suffering it
brought to the Afghan people.  He desired to raise his family in a peaceful environment
and wanted a better life for his family.  In 1979 Applicant escaped from Afghanistan and
went to West Germany.  At that time, Applicant’s brother was a senior officer {redacted}
of Afghanistan, and Applicant’s criticism and escape from Afghanistan was not well
received.  The Afghan Government and their intelligence element, kidnaped the
Applicant and brought him back to Afghanistan, against his will, and placed him under
surveillance.   
In 1987 Applicant attempted to escape from Afghanistan a second time.  This
time, he was arrested by the Secret police, and put in jail for four months.  (Tr. pp. 63-
64.)  At this time, Applicant’s brother was {redacted} [a high-ranking government official
in the Afghanistan government] Instead, Applicant secretly contacted {redacted} [an
individual] who had a great deal of influence in Kabul City and in the Government.
Applicant asked {redacted} [the individual] to help him escape Afghanistan and seek
asylum in another country.  Applicant testified that he had previously met {redacted} [the
individual] in 1987, and later learned from {redacted} [him] that they were classmates in
elementary school.  An elaborate, complicated, and dangerous escape plan was
designed.  This was a physically difficult and emotionally draining journey, for the most
part by foot, across Afghanistan’s rough mountainous terrain filled with land mines and
other perils just to reach Pakistan, all in the midst of a civil war between different
guerrilla factions and the Afghan Government.  It was winter time and snowing, which
made this venture even more difficult.  After an eighteen-day journey, Applicant, his wife
and his children, successfully escaped into Pakistan.  (Tr. p. 71.) {Redacted}  Once in
Pakistan, Applicant applied for political asylum.  In August 1988, Applicant and his
family were granted political asylum and came to the United States.  (Government
Exhibit 6.)  
Applicant indicated that his transition from Afghanistan to the United States was
a difficult one.  He left his country, culture, family, friends, home, career and social
safety net and all of his assets behind.  He realized that he would have to work hard to
accomplish the things he desired.  His degree in Afghanistan was useless in the United
States.  He became homeless for a while and slept in his car.  Putting his pride aside,
he started working in the service industry.  At one time Applicant had three jobs to
support his family.  He quit one job to attend pharmacy technician school and received
his license, just about the time the economy fell and pharmaceutical companies froze
their hiring.  (Applicant’s Exhibits M and N.)  
In 1997, and again in 2002, Applicant applied for United States citizenship.  In
April 1997, Applicant was arrested for misdemeanor assault.  This arrest made him
ineligible for naturalized citizenship and delayed the process.  In September 2009
Applicant became a naturalized United States citizen, and he was issued an American
passport at that time.  He now considers himself to be an Afghan-American.   From
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1998 to 2009, prior to becoming a naturalized United States citizen, while the Applicant
held only a green card, he used his Afghani passport for foreign travel.  Applicant still
possesses the passport, but it expired in 2006 and is not valid.  Applicant has no
intentions to renew it.   
 Applicant has lived in the United States for the past twenty-five years, and has
held a number of jobs to support his family.  In August 2011 he began working for his
current employer.  He was issued an interim clearance, and was deployed overseas
from September 2011 to December 2013.  Applicant testified that he is fluent in the
languages of Pashto, Dari, and English.  (Tr. p. 49.)  He believes he is in high demand
because of his qualifications.  (Tr. p 57.)  
Applicant had two brothers, who were at one time residents and citizens of
Afghanistan.  Applicant’s older brother {redacted} [was a high ranking government
official in Afghanistan from 1986 to 1992.]  Applicant’s younger brother {redacted} [also
held an appointment at a high level with the Afghanistan government.]  In 1992,
{redacted} [Applicant’s brothers] were taken prisoner by the Mujihadeen and held
captive until 1996.  In 1996, the Taliban murdered both brothers. {Redacted}
(Government Exhibit 4 and Tr. pp. 91-94.)       
Applicant’s parents are both deceased.  (Tr. p. 87.)  Applicant’s father passed
away in 1983.  His mother was hit by a bus and killed in 1989/1990.  Applicant does not
believe it was terrorist related because he heard from relatives of his ex-wife that it was
just an accident.  (Tr. pp. 89-90.)
Applicant had three brothers-in-laws who were at one time citizens and residents
of Afghanistan.  Two of them are now naturalized United States citizens.  Two of them
were working as Linguists in Afghanistan like the Applicant.  Applicant’s ex-mother-in-
law and ex-wife were also linguists in Afghanistan.  Applicant states that his family
members who have worked as linguists have all held security clearances.  (Tr. p. 109.)
None of them are currently working as linguists.  Applicant contends that the last time
he had contact with any of his brothers-in-law was about five or six years ago.  (Tr. p.
110-111.)
Applicant states that he no longer has family in Afghanistan.  Where he works in
Afghanistan, there is a completely new generation, and he is not recognized {redacted}
Applicant states that he is a loyal United States citizen.  He works, pays his taxes,
supports his family, and is a civilized person in society.  (Tr. p. 104.)  
Applicant explained that the linguist position is divided into Categories 1, 2, and
3.  If he receives a Top Secret Clearance, he believes he is a candidate for a Category
3 linguist position.  He does not know where he will be assigned or what he will be
doing.  As a Category 3 linguist, he hopes to stay and work on the base where he feels
safe and secure, but there are no guarantees.  He admits that Category 3 linguists are
on occasion assigned to missions outside of the base, if needed.  If this were to occur,
Applicant would be in a much more dangerous situation, as are Category 1 and
Category 2 linguists.  (Tr. 128-131.)  Applicant conceded that after time, people on base
have eventually figured out who he is.  (Tr. p. 131.)     
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Applicant provided numerous letters of recommendation from the Brigade
Linguist Manager, another Linguist Manager, coworkers, close friends, a past
supervisor, and several family members.  They all attest to Applicant’s knowledge,
competence, intelligence, honesty, trustworthiness and dependability.  On the job,
Applicant is said to have provided the team with masterful translation and excellent
insights into the culture.  His contribution is described as significant, and he is respected
as a professional of the highest caliber.  His ability to build rapport with the local national
leadership was extremely valuable in some of the most fragile and dangerous areas.
His extraordinary linguist abilities as well as his high moral character and work ethic is
admired by all who know him.  At home, he is known as a good family man who has
worked hard to provide a good life and education for his children.  He is a hard worker,
who has for almost 19 years worked two jobs to support his family.  He is recommended
for a security clearance.  (Applicant’s Exhibits A through K.)  Applicant provided copies
of pictures of him at work.  (Applicant’s Exhibit R.)     
Applicant’s performance appraisal for 2013 reflects ratings of “exceeds
expectations” in every category.  Applicant is said to, always be on time, never turns
down an assignment, and is a top notch interpreter.  (Applicant’s Exhibit 0.)
Applicant has received a number of accolades for his outstanding performance
on the job that include awards, certificates of Achievement and certificates of merit and
appreciation.  (Applicant’s Exhibit L.)
I have taken official notice of the following facts concerning Afghanistan.
Afghanistan is an Islamic republic.  It has been an independent nation since August 19,
1919, after the British relinquished control.  In December 1979 Soviet forces invaded
and occupied Afghanistan.  Afghan freedom fighters, known as mujaheddin, opposed
the communist regime.  The resistance movement eventually led to the Geneva
Accords, signed by Pakistan, Afghanistan, the United States, and the Soviet Union.  In
mid-1990's the Taliban rose to power largely due to the anarchy and the divisions of the
country among warlords that arose after the Soviet withdrawal.  The Taliban sought to
impose an extreme interpretation of Islam on the entire country and committed massive
human rights violations.  The Taliban also provided sanctuary to Osama Bin-Laden
since the mid-1990's, to al-Qa’ida generally, and to other terrorist organizations.  After
September 11, 2001 terrorist attacks, U.S. demands that Afghanistan expel Bin-laden
and his followers were rejected by the Taliban.  U.S. forces and a coalition partnership
commenced military operations in October 2001 that forced the Taliban out of power by
November 2001.  
Although there has been some progress since the Taliban was deposed,
Afghanistan still faces many daunting challenges, principally defeating terrorists and
insurgents, recovering from over three decades of civil strife, and rebuilding a shattered
physical, economic and political infrastructure.  Human rights problems included
extrajudicial killings; torture and other abuse; poor prison conditions; widespread official
impunity; ineffective government investigations of local security forces; arbitrary arrest
and detention; judicial corruption; violation of privacy rights; restrictions of freedom of
religion; limits on freedom of movement; violence and societal discrimination against
women; sexual abuse of children; abuses against minorities; trafficking in persons;
abuse of worker rights; and child labor.  Overall, the State Department has declared that
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the security threat to all American citizens in Afghanistan remains critical, and travel to
all areas of Afghanistan remains unsafe, due to military combat operations, landmines,
banditry, armed rivalry between political and tribal groups, and the possibility of terrorist
attacks.   
POLICIES
Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies
divided into "Disqualifying Factors" and "Mitigating Factors."  The following Disqualifying
Factors and Mitigating Factors are found to be applicable in this case:
Guideline B (Foreign Influence)
6.  The Concern.  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.
Conditions that could raise a security concern:
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.
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.
Conditions that could mitigate security concerns:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19,  in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct;
b. The circumstances surrounding the conduct, to include knowledgeable
participation;
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c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The voluntariness of participation;
f.  The presence or absence of rehabilitation and other permanent behavioral
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to classified information.
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
an acceptable security risk.  Eligibility for access to classified information is predicated
upon the individual meeting these personnel security guidelines.  The adjudicative
process is the careful weighing of a number of variables known as the whole-person
concept.  Available, reliable information about the person, past and present, favorable
and unfavorable should be considered in reaching a determination.”  The Administrative
Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record.  The Judge cannot draw inferences or conclusions
based on evidence, which is speculative or conjectural in nature.  Finally, as
emphasized by President Eisenhower in Executive Order 10865, “Any determination
under this order . . . shall be a determination in terms of the national interest and shall in
no sense be a determination as to the loyalty of the Applicant concerned.”
CONCLUSION
In the defense industry, the security of classified industrial secrets is entrusted to
civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week.  The Government is therefore
appropriately concerned when available information indicates that an Applicant for
clearance may be subject to foreign influence that may lead to poor judgment or
unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s situation and the
continued holding of a security clearance.  If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case.  The
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Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a security clearance.
 Because of the scope and nature of the Applicant's connections to Afghanistan, I
conclude there is a nexus or connection with his security clearance eligibility.
Considering all of the evidence, the Applicant has failed to introduce persuasive
evidence in rebuttal, explanation or mitigation that is sufficient to overcome the
Government's case under Guideline B of the SOR.
Under Foreign Influence, Guideline B, Disqualifying Condition 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 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 apply.  None of the mitigating conditions are applicable.
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). 
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 or inducement.  The risk of coercion,
persuasion, or duress is 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 collection operations against the United States.  The
relationship of Afghanistan with the United States places a significant but not
insurmountable burden of persuasion on Applicant to demonstrate that his relationships
with his foreign family members do not pose a security risk.  Applicant should not be
placed into a position where he might be forced to choose between loyalty to the United
State and a desire to protect foreign family members.    
Applicant is the brother of {redacted} [two former high-ranking Afghani
government officials.] Both of Applicant’s brothers were murdered by the Taliban.
Applicant and his family’s story is known through media and literature.  Although he
states that he has no close familial relationship nor any relatives in Afghanistan, he is
who he is.  And, as such, Applicant has strong emotional ties and bonds to Afghanistan.
His family is a part of the country’s history.  The unique nature of his familial relationship
places him at a heightened risk of retaliation, pressure or coercion, which he admits.
The fact that his brothers are no longer living is really immaterial.  The conditions in
Afghanistan are volatile and dangerous due primarily to the significant economic,
political, and military unrest, as well as the ongoing robust terrorist threat.  The political
climate in Afghanistan, coupled with who the Applicant’s relatives were present a risk
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that he may be placed in a position of choosing between his interests and the interests
of the United States.  Therefore, Applicant’s foreign contacts do pose a security risk.
Under the heightened scrutiny analysis, the Applicant’s family history in Afghanistan
creates a risk of foreign influence or exploitation.  Applicant admits that he may be
subject to coercions or pressure under certain circumstances.  Other translators or
linguists are at risk because of the nature of what they do.  That is not the concern.
Applicant believes himself to be at risk because of who he is.  Applicant has not
provided sufficient evidence to mitigate these concerns.  
I have also considered the “whole-person concept” in evaluating the Applicant’s
eligibility for access to classified information.  Applicant is commended for the many
sacrifices he has made in life, not just for himself, but for his immediate family.  He has
overcome many obstacles, come to the United States, and become a naturalized United
States citizen.  His self-determination, hard work, and success are admirable.  Despite
these things, under the particular facts of this case, the totality of the circumstances set
forth under all of the guidelines viewed as a whole, support a whole-person assessment
of poor judgement, untrustworthiness, unreliability, or other characteristics indicating
that the person may not properly safeguard classified information.  The evidence fails to
mitigate the negative effects his foreign influence can have on his ability to safeguard
classified information.
On balance, it is concluded that the Applicant has not overcome the
Government's case opposing his request for a security clearance.  Accordingly, the
evidence supports a finding against the Applicant as to the factual and conclusionary
allegations expressed in Paragraph 1 of the SOR.    
FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
        Subpara.  1.a.: Against the Applicant.
    Subpara.  1.b.: Against the Applicant.    
       Subpara.  1.c.: For the Applicant.
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CONCLUSION
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue a security clearance for
the Applicant.
Darlene Lokey-Anderson
Administrative Judge