In a significant but little-noticed February ruling, a Seattle federal judge ordered the Department of Defense to stop applying extra security scrutiny to naturalized citizen soldiers.

The plaintiffs, 17 naturalized U.S. citizens who enlisted through a program called “Military Accessions Vital to the National Interest” (MAVNI), were immigrants deemed to possess critical language or medical skills. In exchange for a commitment of military service, MAVNI soldiers were entitled to “fast-tracked” citizenship.

Only one (1) of the roughly 10,000 soldiers who entered the military through the decade-old MAVNI program is known to have been charged with espionage-related activities. However, the Pentagon applied a blanket policy of presuming MAVNI soldiers presented a heightened national security risk rather than evaluating on a case-by-case basis the need for additional scrutiny of a particular soldier.

MAVNI Soldiers Faced Increased Scrutiny

Resulting DoD policy required MAVNI soldiers to undergo continuous monitoring or security checks every two years – requirements that were not applied to U.S.-born soldiers. And when MAVNI soldiers were deemed a security risk under the heightened scrutiny, they were simply labeled “unsuitable” for military service and discharged rather than afforded an opportunity to challenge that decision before an administrative judge like their non-MAVNI counterparts denied a security clearance.

The plaintiffs argued that the disparate treatment of MAVNI soldiers represented unconstitutional national origin discrimination. Despite broad latitude afforded to the Executive Branch in administering its personnel security programs, the court agreed here that DoD was engaged in “flagrant profiling” and rebuked the government in unusually strong language.

Prior to this ruling, our office would receive calls on a near-weekly basis from MAVNI soldiers seeking legal representation for unfavorable military service suitability determinations. These thinly disguised security clearance denials were ending careers for issues that many security clearance applicants can mitigate (most commonly, “foreign influence”) – and without a shred of due process. Yet, while we certainly sympathized with these applicants, there was little that could be done without a process in place for challenging the decisions.

In just the last few weeks, and as a result of this court case, we now have such a process. The Pentagon has recently begun issuing Statements of Reasons (SOR’s) – with attendant appeal rights – to MAVNI soldiers with issues of adjudicative concern in their background. MAVNI soldiers who receive one should thank their 17 brave colleagues who filed this case. Then, they should consider promptly consulting with a qualified attorney to assess their own case. It just might mean the difference between discharge and a successful military career.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com