Records preservation processes for certain at-risk Afghan allies

(a)

Definition of Afghan ally

In this section and only for the purpose of the Department of Defense records preservation processes established by this section, the term Afghan ally means an alien who is a citizen or national of Afghanistan, or in the case of an alien having no nationality, an alien who last habitually resided in Afghanistan, who—(1)was—(A)a member of—(i)the special operations forces of the Afghanistan National Defense and Security Forces;(ii)the Afghanistan National Army Special Operations Command;(iii)the Afghan Air Force; or(iv)the Special Mission Wing of Afghanistan;(B)a female member of any other entity of the Afghanistan National Defense and Security Forces, including—(i)a cadet or instructor at the Afghanistan National Defense University; and(ii)a civilian employee of the Ministry of Defense or the Ministry of Interior Affairs;(C)an individual associated with former Afghan military and police human intelligence activities, including operators and Department of Defense sources;(D)an individual associated with former Afghan military counterintelligence, counterterrorism, or counternarcotics;(E)an individual associated with the former Afghan Ministry of Defense, Ministry of Interior Affairs, or court system, and who was involved in the investigation, prosecution, or detention of combatants or members of the Taliban or criminal networks affiliated with the Taliban;(F)an individual employed in the former justice sector in Afghanistan as a judge, prosecutor, or investigator who was engaged in rule of law activities for which the United States provided funding or training; or(G)a senior military officer, senior enlisted personnel, or civilian official who served on the staff of the former Ministry of Defense or the former Ministry of Interior Affairs of Afghanistan; and (2) provided service to an entity or organization described in paragraph (1) for not less than 1 year during the period beginning on December 22, 2001, and ending on September 1, 2021, and did so in support of the United States mission in Afghanistan. (b)

Inclusions

For purposes of this section, the Afghanistan National Defense and Security Forces includes members of the security forces under the Ministry of Defense and the Ministry of Interior Affairs of the Islamic Republic of Afghanistan, including the Afghanistan National Army, the Afghan Air Force, the Afghanistan National Police, and any other entity designated by the Secretary of Defense as part of the Afghanistan National Defense and Security Forces during the relevant period of service of the applicant concerned.(c)

Afghan allies records preservation program

(1)

In general

Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall establish a process by which an individual may apply to the Secretary of Defense for classification as an Afghan ally.(2)

Application system

The process established under paragraph (1) shall—(A)include the development and maintenance of a secure online portal through which applicants may provide information verifying their status as Afghan allies and upload supporting documentation; and(B)allow—(i)an applicant to submit his or her own application;(ii)a designee of an applicant to submit an application on behalf of the applicant; and(iii)the submission of an application regardless of where the applicant is located, provided that the applicant is outside the United States.(3)

Review process

As soon as practicable after receiving a request for classification described in paragraph (1), the Secretary of Defense shall—(A)review—(i)the service record of the applicant, if available;(ii)if the applicant provides a service record or other supporting documentation, any information within the internal or contractor-held records of the Department of Defense that helps verify the service record concerned, including information or an attestation provided by any current or former official of the Department of Defense who has personal knowledge of the eligibility of the applicant for such classification; and(iii)available data holdings in the possession of the Department of Defense or any contractor of the Department of Defense, including as applicable biographic and biometric records, iris scans, fingerprints, voice biometric information, hand geometry biometrics, other identifiable information, and any other information related to the applicant, including relevant derogatory information; and(B)(i)in a case in which the Secretary of Defense determines that the applicant is an Afghan ally without significant derogatory information, the Secretary shall preserve a complete record of such application for potential future use by the applicant or a designee of the applicant; and(ii)include with such preserved record—(I)any service record concerned, if available;(II)if the applicant provides a service record, any information that helps verify the service record concerned; and(III)any biometrics for the applicant.(4)

Review process for denial of request for records preservation

(A)

In general

In the case of an applicant with respect to whom the Secretary of Defense denies a request for classification and records preservation based on a determination that the applicant is not an Afghan ally or based on derogatory information—(i)the Secretary shall provide the applicant with a written notice of the denial that provides, to the maximum extent practicable, a description of the basis for the denial, including the facts and inferences, or evidentiary gaps, underlying the individual determination; and(ii)the applicant shall be provided an opportunity to submit not more than one written appeal to the Secretary for each such denial.(B)

Deadline for appeal

An appeal under clause (ii) of subparagraph (A) shall be submitted—(i)not more than 120 days after the date on which the applicant concerned receives notice under clause (i) of that subparagraph; or(ii)on any date thereafter, at the discretion of the Secretary of Defense.(C)

Request to reopen

(i)

In general

An applicant who receives a denial under subparagraph (A) may submit a request to reopen a request for classification and records preservation under the process established under paragraph (1) so that the applicant may provide additional information, clarify existing information, or explain any unfavorable information.(ii)

Limitation

After considering one such request to reopen from an applicant, the Secretary of Defense may deny subsequent requests to reopen submitted by the same applicant.(5)

Termination

The application process under this subsection shall terminate on the date that— (A) is not earlier than 10 years after the date of the enactment of this Act; and (B)on which the Secretary of Defense makes a determination that such termination is in the national interest of the United States.(6)

General provisions

(A)

Prohibition on fees

The Secretary of Defense may not charge any fee in connection with a request for a classification or records preservation under this section.(B)

Defense personnel

Any limitation in law with respect to the number of personnel within the Office of the Secretary of Defense, the military departments, or a Defense Agency (as defined in section 101(a) of title 10, United States Code) shall not apply to personnel employed for the primary purpose of carrying out this section.(C)

Representation

An alien applying for records preservation under this section may be represented during the application process, including at relevant interviews and examinations, by an attorney or other accredited representative. Such representation shall not be at the expense of the United States Government.