Clearancejobs.com readers may be familiar with DoD’s MAVNI program as a result of prior articles on the website, including several from this author. If you’re new to the site, or your head is simply filled with too many government acronyms to recall the specifics, here is the gist of it:

Between 2008 and 2016 the Army recruited some 10,000 foreign-born medical professionals and linguists with a promise of fast-tracked U.S. citizenship. The Army then reneged on the deal and attempted to discharge them en masse as a national security threat despite no empirical proof of heightened 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 most of 2019 and 2020, my office was inundated with countless MAVNI appeals.

Those first-level appeals, which were to officials in the Army’s G-1 shop, are finally being decided by JAG attorneys after seeing no movement until this past summer. Since then, we’ve seen a substantial number of MAVNI recruits receive a favorable adjudication and ship to basic training. That’s great news for these patriotic men and women, most of whom maintained a positive attitude about the entire ordeal despite effectively being forced to put their lives on hold indefinitely.

Unfortunately, the saga doesn’t end there. A number of MAVNI recruits who have since received U.S. citizenship (and are now eligible to obtain a security clearance) are alleging in a new lawsuit filed just recently that DoD is again discriminating against them by establishing arbitrary and unpublished internal guidelines that hold MAVNI soldiers to a higher security standard than non-MAVNI, foreign-born recruits.

Incredibly, DoD’s official response to the lawsuit claimed that MAVNI recruits are – and ostensibly always have been – treated by the Department no differently than any other recruit. That’s an audacious pronouncement given that at least one federal judge has already excoriated the Department for doing exactly the opposite.

Either way, the fact remains that, years after litigation commenced over the MAVNI program, lawsuits continue to pile up and many recruits continue to wonder if they will be facing stigmatization of some form, even if they are ultimately sent to basic training. That has to be a dispiriting way to begin one’s military career.

In the meantime, a narrower question also remains unanswered: what percentage of MAVNI recruits who challenged their discharge succeeded in that endeavor? At the time of writing, we simply don’t yet have enough data yet to make an assessment. It is entirely possible that the Army won’t finish adjudicating appeals until summer 2021 or later. What can be established with certainty is that the appeals are at least finally being read and decided by attorneys: professionals who should theoretically understand basic notions of due process and fundamental fairness. That is an encouraging start, but significant progress remains before DoD can credibly demonstrate it has cured a constitutionally suspect process.

 

 

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