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                          DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-06559 
  )   
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Jeff A. Nagel, Esq., Department Counsel 
For Applicant: Pro se 
 
 
August 31, 2017 
______________ 
 
Decision 
______________ 
 
 
MOGUL, Martin H., Administrative Judge: 
 
Statement of the Case 
 
On April 29, 2016, in accordance with Department of Defense (DoD) Directive 
5220.6, as amended (Directive), the DoD issued Applicant a Statement of Reasons 
(SOR) alleging facts that raise security concerns under Guidelines B and E.1 The SOR 
further informed Applicant that, based on information available to the government, DoD 
adjudicators could not make the preliminary affirmative finding it is clearly consistent 
with the national interest to grant or continue Applicant’s security clearance. 
 
On May 22, 2016, Applicant submitted a written reply to the SOR, and requested 
a decision on the record. (RSOR.) Department Counsel subsequently requested that 
the case be decided after a hearing before an administrative judge. The case was 
assigned to this administrative judge on August 2, 2016. The Defense Office of 
                                                          
1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new 
Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was 
considered under the previous Adjudicative Guidelines, effective September 1, 2006. 
 
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Hearings and Appeals (DOHA) first issued a notice of hearing on November 3, 2016, 
scheduling the hearing for January 4, 2017. Because the Applicant was confused and 
did not attend the hearing on that date, a second notice of hearing was issued on 
January 4, 2017, scheduling the hearing for January 6, 2017. The hearing was 
convened as scheduled.  
 
At the hearing, the Government offered Exhibits 1 through 8, which were 
admitted without objection. Applicant testified on his own behalf and presented one 
document, which was also admitted without objection as Exhibit A. The record was left 
open until January 13, 2017, for receipt of additional documentation. Documents were 
submitted and have been marked and entered into evidence without objection as Exhibit 
B.  
 
Procedural Rulings 
 
 At the hearing, the Government requested I take administrative notice of certain 
facts relating to Afghanistan. Department Counsel provided a summary of the facts, 
supported by Exhibit 7. The documents provide elaboration and context for the 
summary. I take administrative notice of the facts included in the U.S. Government 
reports. They are limited to matters of general knowledge, not subject to reasonable 
dispute. They are set out in the Findings of Fact. 
 
Findings of Fact 
 
 After a thorough and careful review of the pleadings, exhibits, and testimony, I 
make the following findings of fact: 
 
Applicant is 41 years old. He was born in Afghanistan in 1975, and he moved to 
the United States in 2004. He became a naturalized United States citizen in 2008. 
Applicant has been married to his wife since 1999, and they have one daughter, age 9. 
Applicant's wife was born in Afghanistan, and she and their daughter are both United 
States citizens. Applicant has been employed by a defense contractor as a 
Linguist/Interpreter, and he seeks a DoD security clearance in connection with his 
employment in the defense sector. (Tr at 27-29.) 
 
Guideline B - Foreign Influence  
 
 The SOR lists five allegations regarding Foreign Influence, under Adjudicative 
Guideline B. Applicant admitted to the allegations in SOR 1.a through 1d. He denied 
SOR allegation 1.e.:  
 
 1.a. It is alleged in the SOR that Applicant’s father is a citizen and resident of 
Afghanistan. As reviewed above, Applicant admitted this allegation in his RSOR, and he 
wrote that his father has no affiliation with any Afghan organization or government 
agency. He earns his living through the proceeds of some apple gardens that he owns. 
Applicant further wrote that in the last two years when he was deployed, Applicant 
 
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contacted his father three times, and two of those times was to provide him financial 
support of $400 to $500 each time.  
 
  At the hearing, Applicant testified that he speaks to his father, who is 
approximately 65, on average once a year, because of the confidentiality of his 
employment. He further testified that his father is retired, and he would like to eventually 
move to the United States. Applicant last saw his father more than 20 years ago. (Tr at 
29-31, 44.) Applicant has sent his father some money to help support him, once or twice 
a year, in an amount of $500 or less each time. (Tr at 42-43.)  
 
 2.b. It is alleged in the SOR that Applicant has two brothers, who are citizens and 
residents of Afghanistan. Applicant admitted this allegation in his RSOR. He wrote that 
his brothers have no affiliation with any Afghan organization or government agency. 
One of his brothers is a civil engineer, and the other is waiting to enter a university. In 
the last two years, he only spoke to one brother one time, and that was after he was 
talking to his father on the phone.  
 
During his testimony, Applicant confirmed that he almost never communicates 
with his brothers, and neither of them has ever been affiliated with the Afghan 
Government. (Tr at 31-33.) 
 
 2.c. It is alleged in the SOR that Applicant has three sisters, who are citizens and 
residents of Afghanistan. Applicant admitted this allegation in his RSOR. He wrote that 
his sisters have no affiliation with any Afghan organization or government agency. He 
has had no contact with them during the last few years.  
 
Applicant testified that two of his sisters are married, and to Applicant's 
knowledge, none of the sisters or their two husbands is affiliated with the Afghan 
Government. He has not spoken to any of them in the last two years. (Tr at 33-36.) 
 
 2.d. It is alleged in the SOR that Applicant has a mother-in-law, who is a citizen 
and resident of Afghanistan. Applicant admitted in his RSOR that his mother-in-law is an 
Afghan citizen, but she has resided in the United States for the past 19 years. His 
contact has been limited to once in the last three months. His mother-in-law has no 
affiliation with any Afghan organization or government agency 
 
Applicant testified that his mother-in-law lives very close to him in the United 
States, and he speaks to her when he is on leave, approximately two times a year. She 
is about 55, retired and her husband is no longer alive. She has now lived in the United 
States for more than 20 years, and she has attempted to become a United States 
citizen on several occasions, but because of her problems with English, she has not 
been successful. (Tr at 36-37, 46.) 
 
 2.e. It is alleged in the SOR that Applicant has two brothers-in-law, who are 
citizens and residents of Afghanistan. Applicant denied this allegation in his RSOR. He 
wrote that he has virtually no contact with them, but he has learned through his wife that 
both of them are now citizens and residents of the United States. 
 
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He testified that they have both lived in the United States for more than 20 years, 
and they work for private companies in the United States. (Tr at 37-38.) 
  
 Applicant testified that he has no other family or friends in  
Afghanistan with whom he keeps in contact. He works in Afghanistan for 6 months 
translating and spends one month back in the United States. Besides his wife and son, 
his only relatives in the United States is his mother-in-law with whom he has no 
infrequent contact. None of his relatives in Afghanistan have come to visit him in the 
United States. He owns no property in the United States, Afghanistan, or anywhere 
else, although he does hope to purchase a home in the U.S. Applicant testified that he 
is totally loyal to the United States. (Tr at 45 -51, Exhibit 1.)  
 
Guideline E, Personal Conduct  
 
 The Government alleges in this paragraph that Applicant is ineligible for 
clearance because he engaged in conduct that exhibited questionable judgement, lack 
of candor, dishonesty or unwillingness to comply with rules and regulations. 
 
 2.a. It is alleged in the SOR that in approximately June 2011, while employed in 
Afghanistan, Applicant assaulted a member the Afghan advisor team. Applicant 
admitted this allegation in his RSOR. He wrote that an individual with whom he worked 
was continually disrespectful to him. On one occasion, this individual pushed his chest 
against Applicant's chest. Applicant reacted by pushing this individual away from him. 
Applicant further wrote that an investigation was held regarding the incident, but the 
case was dismissed, and Applicant was not punished or reprimanded. He was ordered 
to apologize to the other individual, which he did shortly thereafter.  
 
 Applicant testified that after he apologized the matter was settled, and nothing 
further ensued. (Tr at 38-41.)  An investigation report by a first lieutenant, United States 
Marine Corps, dated June 18, 2011, suggests that Applicant allegedly attacked this 
other worker and choked him with his hands around his throat. This other worker 
sustained minor injuries, but did not seek medical help. This report was based on what 
the other worker stated. However, there are other versions of the incident suggesting 
that the other worker was at fault, and Applicant did not act in an inappropriate manner. 
Ultimately the matter did not result in a punishment to Applicant's, beside his order to 
apologize to the other worker. (Exhibit 6.)  
  
Mitigation  
 
 Applicant submitted a number of documents in mitigation. They include two 
positive character letters and a Commander’s commendation received by Applicant 
(Exhibit A) and a packet of supporting documents, which included: a Certificate of 
Appreciation, a Certificate of Linguistic Training, and several pictures of Applicant with 
the men with whom he worked. (Exhibit B.)   
 
 
 
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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, until 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. 
  
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 to be used 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, administrative judges apply the guidelines in 
conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The 
administrative judge’s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. According to AG ¶ 2(a), 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 national security 
eligibility 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.  
 
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 the applicant or proven by Department Counsel, and has the 
ultimate burden of persuasion as to obtaining a favorable clearance decision.”  
 
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 A person who applies for access to classified information seeks to enter 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 (EO) 10865 provides that adverse 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 
 
 The security concern relating to the guideline for Foreign Influence is set out in 
AG ¶ 6: 
 
Foreign contacts and interests, including, but not limited to, business, 
financial, and property interests, are a national security concern if they 
result in divided allegiance. They may also be a national security concern 
if they create circumstances in which the individual may be manipulated or 
induced to help a foreign person, group, organization, or government in a 
way inconsistent with U.S. interests or otherwise made vulnerable to 
pressure or coercion by any foreign interest. Assessment of foreign 
contacts and interests should consider the country in which the foreign 
contact or interest is located, including, but not limited to, considerations 
such as whether it is known to target U.S. citizens to obtain classified or 
sensitive information or is associated with a risk of terrorism. 
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 7. Disqualifying conditions (a) and (b) are potentially applicable in this case:   
 
(a) contact, regardless of method, 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; 
 
(b) connections to a foreign person, group, government, or country that 
create a potential conflict of interest between the individual's obligation to 
protect classified or sensitive information or technology and the 
 
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individual's desire to help a foreign person, group, or country by providing 
that information or technology; 
 
(c) failure to report or fully disclose, when required, association with a 
foreign person, group, government, or country; 
 
(d) counterintelligence information, whether classified or unclassified, that 
indicates the individual's access to classified information or eligibility for a 
sensitive position may involve unacceptable risk to national security; 
 
(e) shared living quarters with a person or persons, regardless of 
citizenship status, if that relationship creates a heightened risk of foreign 
inducement, manipulation, pressure, or coercion; 
 
(f) substantial business, financial, or property interests in a foreign country, 
or in any foreign owned or foreign-operated business that could subject 
the individual to a heightened risk of foreign influence or exploitation or 
personal conflict of interest;  
 
(g) unauthorized association with a suspected or known agent, associate, 
or employee of a foreign intelligence entity; 
 
(h) indications that representatives or nationals from a foreign country are 
acting to increase the vulnerability of the individual to possible future 
exploitation, inducement, manipulation, pressure, or coercion; and  
 
(i) conduct, especially while traveling or residing outside the U.S., that may 
make the individual vulnerable to exploitation, pressure, or coercion by a 
foreign person, group, government, or country. 
 
  Applicant has a significant number of close family members, especially his father 
to whom he has given hundreds of dollars for support, who are citizens and residents of 
Afghanistan. His ties to the United States are extremely limited to only his wife and son, 
and also his limited contact with his mother-in-law, who is an Afghan citizen, but does 
reside in the United States. The evidence is sufficient to raise these disqualifying 
conditions.  
 
 AG ¶ 8 provides conditions that could mitigate security concerns. I considered all 
of the mitigating conditions under AG ¶ 8 including: 
 
(a) the nature of the relationships with foreign persons, the country in 
which these persons are located, or the positions or activities of those 
persons in that country 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, group, organization, or government and the interests of the 
United States; 
 
 
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(b) there is no conflict of interest, either because the individual’s sense of 
loyalty or obligation to the foreign person, or allegiance to the group, 
government, or country is so minimal, or the individual has such deep and 
longstanding relationships and loyalties in the United States, that the 
individual can be expected to resolve any conflict of interest in favor of the 
U.S. interest; 
 
(c) contact or communication with foreign citizens is so casual and 
infrequent that there is little likelihood that it could create a risk for foreign 
influence or exploitation; 
 
(d) the foreign contacts and activities are on U.S. Government business or 
are approved by the agency head or designee; 
 
(e) the individual has promptly complied with existing agency requirements 
regarding the reporting of contacts, requests, or threats from persons, 
groups, or organizations from a foreign country; and 
 
(f) the value or routine nature of the foreign business, financial, or property 
interests is such that they are unlikely to result in a conflict and could not 
be used effectively to influence, manipulate, or pressure the individual. 
 
Because of the strong familial ties to Afghanistan, and the limited contact with the 
United States, I do not find that any of the mitigating factors are applicable in this case. 
 
Guideline E, Personal Conduct 
 
 The security concern relating to the guideline for Personal Conduct is set out in 
AG ¶ 15: 
 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual's reliability, trustworthiness, and ability to protect 
classified or sensitive information. Of special interest is any failure to 
cooperate or provide truthful and candid answers during national security 
investigative or adjudicative processes.  
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 16.: 
 
(a) deliberate omission, concealment, or falsification of relevant facts from 
any personnel security questionnaire, personal history statement, or 
similar form used to conduct investigations, determine employment 
qualifications, award benefits or status, determine national security 
eligibility or trustworthiness, or award fiduciary responsibilities; 
 
 
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(b) deliberately providing false or misleading information; or concealing or 
omitting information, concerning relevant facts to an employer, 
investigator, security official, competent medical or mental health 
professional involved in making a recommendation relevant to a national 
security eligibility determination, or other official government 
representative; 
 
(c) credible adverse information in several adjudicative issue areas that is 
not sufficient for an adverse determination under any other single 
guideline, but which, when considered as a whole, supports a whole-
person assessment of questionable judgment, untrustworthiness, 
unreliability, lack of candor, unwillingness to comply with rules and 
regulations, or other characteristics indicating that the individual may not 
properly safeguard classified or sensitive information; 
 
(d) credible adverse information that is not explicitly covered under any 
other guideline and may not be sufficient by itself for an adverse 
determination, but which, when combined with all available information, 
supports a whole-person assessment of questionable judgment, 
untrustworthiness, unreliability, lack of candor, unwillingness to comply 
with rules and regulations, or other characteristics indicating that the 
individual may not properly safeguard classified or sensitive information. 
This includes, but is not limited to, consideration of: 
 
(1) untrustworthy or unreliable behavior to include breach of 
client confidentiality, release of proprietary information, 
unauthorized release of sensitive corporate or government 
protected information; 
 
(2) any disruptive, violent, or other inappropriate behavior; 
 
(3) a pattern of dishonesty or rule violations; and 
 
(4) evidence of significant misuse of Government or other 
employer's time or resources; 
 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a vulnerability to exploitation, manipulation, or duress by a 
foreign intelligence entity or other individual or group. Such conduct 
includes: 
 
(1) engaging in activities which, if known, could affect the 
person's personal, professional, or community standing; 
 
(2) while in another country, engaging in any activity that is 
illegal in that country; 
 
 
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(3) while in another country, engaging in any activity that, 
while legal there, is illegal in the United States; 
 
(f) violation of a written or recorded commitment made by the individual to 
the employer as a condition of employment; and 
 
(g) association with persons involved in criminal activity. 
 
Because of the altercation in which Applicant was involved, find that AG ¶ 16 (d) 
(2) is potentially applicable as a disqualifying condition in this case:   
 
 AG ¶ 17 provides conditions that could mitigate security concerns. I considered 
all of the mitigating conditions under AG ¶ 17 including: 
 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; 
 
(b) the refusal or failure to cooperate, omission, or concealment was 
caused or significantly contributed to by advice of legal counsel or of a 
person with professional responsibilities for advising or instructing the 
individual specifically concerning security processes. Upon being made 
aware of the requirement to cooperate or provide the information, the 
individual cooperated fully and truthfully; 
 
(c) the offense is so minor, or so much time has passed, or the behavior is 
so infrequent, or it happened under such unique circumstances that it is 
unlikely to recur and does not cast doubt on the individual's reliability, 
trustworthiness, or good judgment; 
 
(d) the individual has acknowledged the behavior and obtained counseling 
to change the behavior or taken other positive steps to alleviate the 
stressors, circumstances, or factors that contributed to untrustworthy, 
unreliable, or other inappropriate behavior, and such behavior is unlikely 
to recur; 
 
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress; 
 
(f) the information was unsubstantiated or from a source of questionable 
reliability; and 
 
(g) association with persons involved in criminal activities was unwitting, 
has ceased, or occurs under circumstances that do not cast doubt upon 
the individual's reliability, trustworthiness, judgment, or willingness to 
comply with rules and regulations. 
 
 
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Because the investigation of the altercation in which Applicant was involved, 
result4ed in two very different versions of the incident, and the evidence does not 
definitively establish that Applicant was at fault, I find that AG ¶ 17 (f) is applicable and 
controlling as the mitigating factor in this case.   
 
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 relevant circumstances. The administrative judge should consider the 
nine adjudicative process factors listed at AG ¶ 2(d):  
 
(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 
facts and circumstances surrounding this case. I have incorporated my comments under 
Guidelines B and E in my whole-person analysis. Overall, the record evidence under 
Guideline B leaves me with significant questions and doubts as to Applicant’s eligibility 
and suitability for a security clearance. For all these reasons, I conclude Applicant has 
not mitigated the Foreign Influence security concerns under the whole-person concept.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 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:    For Applicant 
Subparagraph 1.e:    For Applicant 
 
 
 
 
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Paragraph 2, Guideline E:   FOR APPLICANT 
 
  Subparagraph 1.a:    For 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. 
 
 
 
 
Martin H. Mogul 
Administrative Judge