Last year I first wrote about the U.S. Army’s Military Accessions Vital to the National Interest, or “MAVNI”, program and the plight of countless individuals recruited into the Army under it.
If you’re unfamiliar with the program, here is the quick and dirty. The Army recruited some 10,000 foreign-born medical professionals and linguists with a promise of fast-tracked U.S. citizenship, only to renege on the deal and attempt to discharge them en masse as a national security risk. Litigation ensued and DoD was forced to provide each MAVNI recruit with individualized administrative due process – i.e. an opportunity to challenge any discharge decision. They did just that, and for the last twelve months my office has been inundated with hundreds of MAVNI appeals.
Those first-level appeals, which appear to have all cycled through and are now awaiting decisions, were written-only applications to the Army’s G-1 (personnel) shop. Styled as “military service suitability determinations”, the initial denials were inappropriately predicated on the national adjudicative guidelines for security clearances – which are written with U.S. citizenship in mind and implemented with other administrative due process rights the soldiers were not afforded. Many of the preliminary denial letters were vague in their justifications, blatantly misapplied the adjudicative guidelines, or included demonstrably false information. A number of soldiers were forced to respond to the denials without ever having seen the documentation on which the decision was based.
Fundamentally, the process appeared to be a hastily thrown-together rubber stamp of a predetermined decision; a “let’s get the courts off our back by doing the bare minimum” kind of effort. Only recently have a handful of decisions on the appeals started trickling out, so time will tell whether or not that initial assessment is an accurate one. In the meantime, however, many MAVNI recruits are wondering what’s next?
If Army G-1 finds that the recruit is not suitable for military service, unfortunately that’s likely the end of the road. Absent further court intervention, MAVNI recruits can expect to be discharged.
If, however, Army G-1 finds that the recruit is suitable for military service, the case then goes back to the originating authority, DoD’s Consolidated Adjudications Facility, where adjudicators are supposed to render a separate, security determination based on the same set of facts and the same adjudicative guidelines. The redundant adjudications raise many questions: what if two entities disagree? What if Army G-1 missed critical information in their evaluation of the soldier’s background (a frequent phenomenon we’ve noticed)? What if the soldier still has not naturalized and cannot be granted a security clearance?
The short, and unfortunate, answer to all of these questions is that we simply do not know. What we do know is that this by-the-seat-of-their-pants appeals process seems to be coming back to haunt Army leadership in the form of continuing litigation and mass confusion among the ranks. Promisingly, we have heard reports of some MAVNI soldiers now being afforded hearings before a Defense Office of Hearings and Appeals (DOHA) Administrative Judge, although it remains unclear at this time under what circumstances those hearings are being granted.
More information will undoubtedly filter out in the months to come, and when it does, we’ll be sure to provide an update. In the meantime, MAVNI soldiers who receive communications from the government should continue to scrupulously comply with all response deadlines; not assume extensions or requests for representation by a JAG attorney will be granted (they probably won’t be); and continue to consult with their legal counsel, as necessary. A DOHA hearing, in particular, can be a critical opportunity to make-or-break one’s case in this process. I strongly recommend against appearing for one without an experienced attorney.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
