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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 14-00032
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Ronald P. Ackerman, Esquire
July 17, 2014
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on December 1, 2011.  On February 25, 2014, the Department of Defense
(DOD) issued a Statement of Reasons (SOR) detailing the security concerns under
Guidelines B and J 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. 
Applicant answered the SOR in writing on March 18, 2014, and requested a
hearing before an Administrative Judge.  The Defense Office of Hearings and Appeals
(DOHA) received the request soon thereafter, and I received the case assignment on
April 22, 2014.  DOHA issued a notice of hearing on May 7, 2014, and I convened the
hearing as scheduled on May 23, 2014.  The Government offered Exhibits (GXs) 1 and
2, which were received without objection.  Applicant testified on his own behalf and
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submitted Exhibits (AppXs) A through F, which were received without objection.  DOHA
received the transcript of the hearing (TR) on June 4, 2014.  I granted Applicant’s
request to keep the record open until June 20, 2014, to submit additional matters.
Applicant submitted nothing further on his behalf.  The record closed on June 20, 2014.
Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to
classified information is granted.
Procedural and Evidentiary Rulings
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, Applicant admitted the factual allegations in
Subparagraphs 1.b., and 2.a.~2.e. of the SOR, with explanations.  He denied the factual
allegations in Subparagraph 1.a. of the SOR.  He also provided additional information to
support his request for eligibility for a security clearance.
Guideline B - Foreign Influence
Applicant was born in Afghanistan in 1966.  He immigrated to the United States
in 1982 at the age of 16 where he attended high school.  (TR at page 26 lines 11~21.)
He joined the United States Navy in 1987 where he served honorably until his discharge
in 1991.  (TR at page 27 line 12 to page 29 line 8, and AppX C.)  Applicant became a
naturalized U.S. citizen in 1992.  (TR at page 27 lines 3~7, and GX 1 at page 7.)
1.a.  Applicant was divorced from his Afghan born wife in June of 2013, and has
had no contact with her since the divorce.  (TR at page 30 line 15 to page 32 line 25, at
page 46 line 7 to page 47 line 18, and AppX D.)  Applicant has had no contact with his
former Afghan mother-in-law since his 2005 wedding.  (Id.)
1.b.  Applicant has had no contact with his Afghan born uncle and a cousin since
his 2005 wedding.  (TR at page 33 line 1 to page 34 line 2, and at page 48 lines 4~7.)
I also take administrative notice of the following facts.  Afghanistan’s national
institutions continue to improve their ability to provide constitutional, stable, effective,
and responsive governance, but still face sizable challenges.  Corruption, ineffective
program monitoring, budget shortfalls at all levels, inability to generate revenue, and
limited public financial management capacity continue to plague the national
government.
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The convergence of insurgent, terrorist, and criminal networks is pervasive and
constitutes a threat to Afghanistan stability.  Security in Afghanistan is challenged by
several armed groups, loosely allied with each other.  The Department of State warns
U.S. citizens against travel to Afghanistan and warns that the security threat to all U.S.
citizens remains critical.
Guideline J - Criminal Conduct
2.a.  In 1996, Applicant was charged with and subsequently convicted of
Soliciting a Prostitute.  (TR at page 34 line 6 to page 35 line 4, at page 48 line 12 to
page 50 line 20, and GX 2 at page 2.)  He was placed on probation for one year and
fined approximately $500.  (Id.)
2.b.  In June of 1999, Applicant was arrested and charged with Battery on a
Person.  (TR at page 35 lines 5~25, at page 50 line 21 to page 51 line 14, and GX 2 at
page 2.)  Applicant avers that his actions were in self-defense; and as a result, the
charge was dropped.  (Id.)
2.c.  In July of 1999, Applicant was arrested and charged with misdemeanor
Possession of Marijuana.  (TR at page 36 line 1 to page 37 line 3, at page 51 line 15 to
page 52 line 25, and GX 1 at page 39.)  A marijuana pipe, a gift from a girlfriend, was
found in the glove compartment of Applicant’s car.  (Id.)  He was fined $50.  (GX 1 at
page 39.)
2.d.  In October of 2001, Applicant was charged with, and subsequently
convicted of, misdemeanor Simple Assault/Battery.  (TR at page 37 line 4 to page 38
line 15, at page 53 lines 1~22, GX 1 at pages 39~40, and GX 2 at page 2.)  He got in an
altercation with a gas station attendant.  (Id.)  He was sentenced, in part, to five days in
jail, and fined approximately $100.  (GX 2 at page 2.)
2.e.  In May of 2010, Applicant was arrested and charged with Assault and
Battery.  (TR at page 38 line 16 to page 41 line 13, and at page 53 line 23 to page 54
line 7.)  Applicant took issue with the fact that his 13 year old sister was playing loud
music late at night when he was trying to sleep.  (Id.)  His sister called the police, but
has since recanted any allegation of criminal conduct on Applicant’s part.  (AppX E.)
The charge was dropped. 
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.
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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
Paragraph 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.
Paragraph 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 Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph 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:
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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, Paragraph 7(a) is arguably applicable: “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.”  Applicant’s former spouse, former mother-in-law, uncle and cousin are
citizens and residents of Afghanistan.  This is countered, however, by the first mitigating
condition, as “the nature of the relationships with foreign persons, the country in which
these persons are located . . . 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.”  Applicant has had no contact with his former mother-in-law, uncle
and cousin since his wedding in 2005.  Furthermore, he has had nothing to do with his
former spouse since their June 2013 divorce.  There is no evidence that any of them
work for the Afghan government.
Guideline J - Criminal Conduct
Paragraph 30 of the adjudicative guidelines sets out the security concern relating
to Criminal Conduct:
Criminal activity creates doubt about a person=s judgment, reliability, and
trustworthiness.  By its very nature, it calls into question a person=s ability
or willingness to comply with laws, rules and regulations.
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Subparagraph 31(a) provides that “a single serious crime or multiple lesser
offenses” may raise security concerns.  Applicant has three convictions, one in 1996,
one in 1999, and one in 2001.  The last incident, a misdemeanor conviction, occurred in
October of 2001.  He was also arrested in May of 2010.  Here, these are countered by
the mitigating condition in Subparagraph 32(a) as “so much time has elapsed since the
criminal behavior happened, or it happened under such unusual circumstances that it is
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness,
or good judgment.”  The Applicant’s last arrest was more than three years ago, and the
alleged victim has recanted any criminal conduct on Applicant’s part.  The other
incidents are over ten years ago, and do not show a pattern.
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
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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.”
Applicant has the unqualified support of those with whom he worked in
Afghanistan.  (AppX A.)  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 has
mitigated the security concerns arising from his alleged Foreign Influence and Criminal
Conduct.
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
Paragraph 2, Guideline J: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Subparagraph 2.c: For Applicant
Subparagraph 2.d: For Applicant
Subparagraph 2.e: 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