Earlier this year, I wrote about the trials and tribulations of U.S. Army soldiers recruited under an obscure program called Military Accessions Vital to the National Interest, or “MAVNI”.

These patriotic men and women – all foreign nationals legally residing in the United States – were sought out specifically because they possessed critical skills like foreign language proficiency or medical expertise that were in short supply. For volunteering their services, MAVNI recruits received a promise of fast-tracked U.S. citizenship. Instead, after years of waiting in limbo and drilling with their assigned units, what MAVNI recruits got was the back of Uncle Sam’s hand. They were informed en masse that they posed a national security risk and shown the door by Pentagon brass.

As I have opined previously, it is entirely fair to question whether the MAVNI program was a poorly conceived national security risk. Yet the men and women who heeded America’s call to service deserve the benefit of their bargain. In those cases where a heightened risk appears to exist, individualized administrative due process must be provided prior to rendering a discharge decision.

It has taken several federal lawsuits to force the Department of Defense to treat MAVNI recruits with even an appearance of fairness.  While DoD is now affording MAVNI soldiers the individualized due process ordered by the courts, the flood of MAVNI cases my office has been handling this summer all share some disturbing commonalities: vague, poorly-drafted Statements of Reasons; a lack of foundational documentation; and an opaque administrative review process that deviates dramatically from normal security clearance denial cases despite holding applicants to the same security clearance adjudicative guidelines[1].

We have been systematically raising those concerns on behalf of our MAVNI clients in the administrative appeals, while our colleagues in the Immigration Bar have continued to press for accountability in the federal courts. In doing so, it has become clear that a significant number of MAVNI soldiers do not understand the importance of requesting their files – the security and counter-intelligence reports upon which their unfavorable military service suitability recommendation (MSSR) was based – from the government under the Privacy Act. Indeed, some are unaware that this is even an option.

To be clear, all MAVNI soldiers can and should file Privacy Act requests for copies of two documents immediately: (1) their Office of Personnel Management (OPM) investigative file (referred to by some MAVNI applicants as their “SSBI” file); and (2) their counter-intelligence screening report.  The documents can be obtained by following the instructions linked below:

OPM INVESTIGATIVE (“SSBI”) FILE – CLICK HERE

U.S. ARMY INSCOM COUNTER-INTELLIGENCE SCREENING REPORT – CLICK HERE

I urge any MAVNI soldier who has not already obtained both documents under the Privacy Act to submit their request(s) for the missing file(s) immediately. A thorough review of these documents will be vital for mounting a strong defense, whether pro se or with legal counsel. However, MAVNI soldiers with a pending deadline to respond to an adverse MSSR should not assume that they will be granted an extension on that basis. MAVNI soldiers who have received their MSSR already should instead mount a substantive defense to the allegations using the information available; raise the lack of documentation as a due process issue in the appeal; and request an opportunity to supplement the original response, as necessary, once the documentation has been received[2]. Doing anything less risks defaulting on an administrative deadline and potentially jeopardizing one’s opportunity to appeal altogether.

 

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

[1] Although MAVNI soldiers are not U.S. citizens, and are thus unable to obtain a security clearance until and unless they obtain U.S. citizenship, the National Adjudicative Guidelines for Security Clearances also apply to those seeking appointment to sensitive national security duties, which is how DoD is framing all MAVNI cases. The term “security clearance” is used loosely to incorporate both categories. This is consistent with Security Executive Agent Directive (SEAD)-4, which eliminates any adjudicative distinction between the two categories.

[2] Numerous recruits have requested extensions without submitting a substantive reply. None, to my knowledge, has received one – or any acknowledgment of the request by DoD.

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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