DoD's Due Process for MAVNI Soldiers Finally Unfolding
Sean Bigley / Apr 9, 2019
This March, I first wrote about the Defense Department's notorious "MAVNI" program, and how thousands of aspiring U.S. soldiers were essentially sold a bill of goods by the government.
The program, formally named "Military Accessions Vital to the National Interest" was conceived in 2008 as a way for the military to recruit foreign nationals with badly-needed skills – predominantly foreign language abilities and medical expertise – to serve in the U.S. Armed Forces. In exchange for their service, recruits were offered a supposed fast-track to U.S. citizenship.
After advertising the program heavily and recruiting over 10,000 individuals into service, personnel officials suddenly decided in 2016 that the program posed too great a national security risk and moved to impose extra screening procedures not applied to other soldiers. Those who failed to pass would face administrative discharge without a shred of due process.
Dreams of U.S. citizenship earned through sweat and service were crushed overnight. A group of 17 MAVNI recruits sued the Defense Department and won a court order barring DoD from discriminating against them simply because of their national origin – great news for all MAVNI recruits.
What is more interesting from a legal perspective, however, is how DoD has apparently interpreted the court's order. Instead of treating everyone equally, DoD has opted to apply the same adjudicative guidelines to MAVNI cases as it applies to security clearance cases, just minus the attendant due process.
Under current regulations, an individual denied a security clearance outside of MAVNI gets a detailed "Statement of Reasons" (SOR), a right to the government's evidence within 30 days, and an opportunity to challenge the case before an impartial Administrative Judge. But an individual denied a favorable "Military Service Suitability Recommendation" (read: security clearance) under MAVNI – with the same set of facts and applying the exact same adjudicative criteria – has no right to timely provision of the government's evidence, gets a vague and often poorly drafted "Statement of Reasons," and is entitled only to a one-shot written appeal decided by a nameless DoD official who never meets the appellant.
MAVNI, national security, and equal protection under the law
In fairness, it may turn out that the MAVNI program is a poorly conceived national security risk, despite the fact that only one (1) enlistee to-date is known to have been arrested or charged with espionage-related activity. Nonetheless, the thousands of non-spies who enlisted in good faith reliance on a promise deserve the benefit of their bargain. DoD is moving in the right direction; some administrative due process, however weak, is better than summary discharge. But the fact that they have to be ordered to do it is disturbing, as is the fact that they've side-stepped their own usual process and created a new one that lacks the same independence and credibility.
My law practice has seen a flood of MAVNI cases in recent weeks. With everything riding on a favorable outcome, MAVNI soldiers are strongly advised to seek competent legal representation in responding to an unfavorable Military Service Suitability Recommendation from DoD's Consolidated Adjudications Facility (DoD CAF).
In the meantime, MAVNI soldiers waiting on an SOR should understand that their timeline for challenging an adverse decision will be limited to 30 days from receipt of the SOR. That is not enough time to guarantee receipt of the government's evidence prior to responding to the SOR – evidence can often be critical to mounting a strong case. Accordingly, MAVNI soldiers should be requesting now from DoD CAF all documents that entity relied upon in rendering the unfavorable military service suitability recommendation. Follow this link for instructions on submitting the records request.
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