We understand that a number of MAVNI soldiers have or will in the future receive a document called an adverse MSSR letter (“Notification of Adverse Military Suitability Recommendation (MSSR)”). A redacted version of the MSSR is posted on this link. Our understanding is that certain MAVNI soldiers, primarily DTPs or Reservists, are receiving these through certified mail, which means that either the letter will be delivered to you personally or a notice will be left directing you to pick up the letter from the post office. We have heard that other MAVNI soldiers, primarily DEPs or MAVNIs who enlisted to become members of the Regular Army, are being told to pick up a document from their recruiter or another Army contact and to indicate right at that time whether they intend to challenge the MSSR or not on the Acknowledgment of Notice and Election page. Please note that because we do not represent MAVNIs individually with respect to the reasons for an MSSR, we cannot provide MAVNIs with legal advice about their particular MSSR circumstances. If a MAVNI would like individual legal advice regarding this matter, we encourage the soldier to engage counsel, either through the Army (by requesting a JAG lawyer) or private counsel outside of the Army. That said, we can offer MAVNIs some general guidance and suggestions regarding potential responses to adverse MSSR letters:
Initial Response Shortly After Receiving MSSR Letter
- Please be aware that letter recipients are not obligated to immediately provide a full, substantive response to an adverse MSSR letter. Instead, if you intend to submit a substantive written response, you can begin the process by checking the box “I elect to submit written matters . . .” on the acknowledgement form at the end of the MSSR letter, titled: “Acknowledgment of Notice and Election” (Acknowledgement)
- On the Acknowledgement, you should note the date that you actually received the letter (which will be later than the date of the letter) and ask for certain information as follows: “Please be advised that I received the letter on the following date: _______. I request a copy of any materials relied on to support the MSSR, including copies of my counterintelligence and SSBI reports. I further request that my time to respond be extended to at least 30 days after receipt of the requested materials.”
- If the adverse MSSR letter (a) identifies Army regulations that you cannot easily locate, or (b) makes assertions or claims in Paragraph 4 that you do not understand, you should make a written request on the Acknowledgement asking for the documents, requesting clarification, and asking to be supplied with any information that supports the MSSR claims or may help to clarify the MSSR statements/claims.
- You may also want to request the assistance of a JAG lawyer to advise you regarding the contents of the letter and to help you prepare your substantive response. If you wish to have a JAG lawyer assigned, you should write the following on your Acknowledgement: “I am requesting that a JAG lawyer be assigned to me to assist me in responding to the substantive allegations raised in my MSSR letter. I am further requesting that my time to respond be extended to some reasonable date after I have consulted with the JAG lawyer who is assigned to assist me.” Separately, you may also want to request a JAG lawyer by completing the form in the following link: https://www.usar.army.mil/Commands/Functional/Legal-Command/Legal-Resources/Request-for-Legal-Assistance/ and contacting the legal assistance office nearest you to determine how you should submit this request to the Army. You can you use the following link to locate the nearest legal assistance office: https://legalassistance.law.af.mil/.
- Once you have checked the box and added the applicable statements and requests noted above, send the Acknowledgement back via mail through the pre-addressed envelope provided with your MSSR letter. You should also send a copy of your Acknowledgement via email to the email address identified in your letter. Make sure to keep a copy of the Acknowledgement for your records.
Substantive Response Within 30 Days of Receipt of MSSR Letter (unless Army grants extension)
If you do not hear back from the Army that your request for materials and/or a JAG lawyer, along with your request for additional time to respond, will be honored, then out of an abundance of caution, you should provide a substantive response to the information provided in the adverse MSSR letter within 30 days of receiving the MSSR letter. For example, if the MSSR letter is dated July 1 but you did not receive it until July 15, you should send your response by email no later than August 14).
As set forth in the MSSR letter, your objective is to “refute, correct, explain, extenuate, mitigate, or update the unfavorable information” that the Army has alleged about you in paragraph 4. In order to respond substantively, it would be helpful to have in front of you the following:
- Copy of your MSSR letter
- CI results (if you requested and received these through FOIA/Privacy Act)
- Copy of your SSBI results (if you requested and received these through FOIA/Privacy Act)
- A list where you identify, by page and paragraph, all errors/omissions/misstatements you believe are present in your MSSR letter and/or your CI report, why you think it is an error/omission/misstatement, and what you believe the correct information should be;
- Any supporting documents that rebut the allegations in the MSSR (example: If the MSSR says that you owe money to someone, proof that you paid off the debt)
- Any documents showing that you have been a good soldier, such as Certificates of Achievement, awards, letters of recommendation, etc.
- We also recommend that you read the Adjudicative Guidelines and study how to “mitigate” any concerns. The following resources could be helpful:
Your substantive response should include the following items:
- Remind the Army of any previous requests you made. You should remind the Army that you asked for any additional information or documentation supporting the adverse MSSR along with 30 days to respond after receipt of such information. Additionally, if you requested a JAG lawyer, but none was assigned, you should remind the Army of that request, repeat the request, and ask again for additional time to respond after a JAG lawyer is assigned to you. You should state in your response that you reserve all rights with respect to the materials the Army relied on to support the MSSR. In addition, your response should state that you are unable to fully respond to the MSSR letter until the Army provides you with a complete set of the information and documentation supporting the MSSR, and that you are responding out of an abundance of caution. (If you did not send the Acknowledgment back with the requests for more information, time, and a JAG attorney – you can and should include those requests for the first time in your “substantive” response.)
- Refute, correct, or update information that is incorrect. If the unfavorable information in the MSSR letter is incorrect or no longer accurate, then you can refute, correct, or update the unfavorable information in your response. For example, if at the time of your CI interview a relative was employed by a foreign government, but that relative has since retired, you can update the Army that the unfavorable information is not relevant because the relative is no longer employed by the foreign government. Likewise, if the unfavorable information concerns a large outstanding personal debt, but that debt has since been satisfied in full or you have worked out a payment plan and have been making payments, your response can point to that fact.
- Explain, justify, or mitigate information that is correct. If the unfavorable information in the MSSR notice is correct, then you can explain, justify, or mitigate the unfavorable information in your response. For example, if the unfavorable information concerns the fact that you own property in a foreign country or that you might inherit foreign property in the future, one explanation (but only if accurate) might be that you intend to sell that property. Please remember that everything you say in your response must be truthful – that is the most important thing. As another example, if your MSSR letter states that something was “revealed” during your background investigation, but you previously had voluntarily provided that information to the Army and the Army was aware of it since your enlistment, your response can state when you provided this information to the Army and that you were not (and are not) trying to hide such information.
- No Waiver of Rights. Your response should state that nothing in your response should be construed as waiving any of your rights.
Additional General Tips for Preparing your Substantive Response:
- If Paragraph 4 identifies more than one piece of information, then your response should address each piece of unfavorable information in turn. So, if the unfavorable information in your MSSR letter is that your relative is employed by a foreign government and you have a large outstanding personal debt, then you should respond to both pieces of unfavorable information.
- If you have documentation to support your response, you also should provide that by attaching it to your written submission. For example, if the unfavorable information concerns a large outstanding personal debt that has since been satisfied in full, you should attach to your written response any documentation showing that the balance on the debt is $0.
- If Foreign Influence (Guideline B) is identified as the concern, according to DoD’s own guidelines, some examples of conditions that could mitigate security concerns and alleviate concerns arising from a soldier’s foreign ties could include explaining, if applicable (in as much personal detail as possible):
- That the nature of your relationship with a foreign person, the country in which that person is located, and/or the positions or activities of that person in that country are such that it is unlikely that you will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.;
- That there is no conflict of interest, either because your sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or because you have such deep and longstanding relationships and loyalties in the United States, that you can be expected to resolve any conflict of interest in favor of the U.S. interest;
- That your contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; and/or
- That the value or routine nature of the foreign business, financial, or property interests is such that it is unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure you.
If You Already Have Responded to the MSSR Letter
- Even if you already have responded to your adverse MSSR letter, if additional information or a JAG lawyer would help you more fully respond to the letter, you should write and ask for more information, a JAG attorney, and the opportunity to supplement your response.
- If you already have supplemental information you want the Army to have as it considers your MSSR, send a supplemental response to the email address provided in the MSSR letter. The Army should want to have all the information you can provide in order to make its MSSD decision fully informed. Please keep a copy of anything you send to the Army.
Example MSSR Response Letters
We understand that some example responses have been posted on-line. Class counsel has not prepared these examples and is not giving legal advice about individual MSSR responses. However, we thought it may help you to see the examples we found on-line: Sample 1,Sample 2. Note: It is important that if you use an example to create your own response, you make sure to adjust it to fit the “adverse” finding in your letter.
UPDATE (May 31, 2019): We have learned that some Army units and recruiters are distributing a document entitled “Voluntary Waiver of Notification of Adverse Military Service Suitability Recommendation” to MAVNI soldiers who are still waiting for final MSSDs. An example of that document can be viewed through this link.
We understand that some soldiers received this MSSR Waiver Notification even though they did not request it or speak with anyone in the Army about it in advance of receiving it.
The last page of the MSSR Waiver Notification is an “Acknowledgement of Notice and Election” form. The document instructs soldiers to fill out this form and return in to the Army.
If you have received this document, and if you do not want to waive your right to be informed of the basis for your unfavorable MSSR or the opportunity to refute your unfavorable MSSR, you should check the space next to “I elect not to waive receipt” paragraph on the Election Form before returning it the Army. That is the paragraph immediately above the “Name” line on the Form. In addition, if you did not ask to waive your MSSR notification and rebuttal rights, you may want to add the following comment next to your signature on the form: ”I am acknowledging receipt of this form only, but I am not acknowledging the accuracy of statements within the notification because I did not make either of the requests referred to in the second sentence of Part 3 on page 2. I am reserving all of my rights.”
Paragraph 6 of the document identifies an Army “Point of Contact” to whom you can direct questions. If you received this document and are considering checking the “I voluntarily elect to waive” option on the Election Form, you may wish to consider gathering more information before making that selection. For example, you may want to ask the Army to answer the following questions:
- What rights exactly are being waived? And, what rights are not being waived?
- If I select “waive,” which is likely to lead to my discharge from the military, how long does the discharge process take and what does it entail?
- What kind of discharge will I receive?
- How could such a waiver (and discharge) negatively affect me, not only with respect to my military career, but also with respect to any immigration matters, military and veterans’ benefits, reputation, and civilian jobs and clearances?
- How does this waiver relate to the MAVNI litigations pending in federal court in Washington, DC?
- In the Nio class action, the district court recently decided that USCIS had to move forward with MAVNI naturalization applications even if MSSRs and MSSDs remain pending, so what are the benefits (if any) and disadvantages of “waiving” my MSSR/MSSD challenge rights if that leads to my discharge from the military?
- Can I speak with a JAG lawyer about the potential waiver, my rights, and how such a waiver may affect me? If “yes,” how do I get assigned a JAG lawyer to help me?
- Will I be given time to speak with a lawyer?
- What happens if 15 days pass and I haven’t responded to the notification?
If you are unable to obtain adequate answers from the Army right now or advice from a lawyer, you may want to select “I elect not to waive receipt” until you have the answers and information you need to make a more informed decision.
The District Court in the Calixto litigation has been informed about the MSSR Waiver Notification. A copy of that filing is available through this link.
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