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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 07-04278
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MOGUL, Martin H., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on July 12, 2006.
On August 15, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the security concerns under Guideline B for
Applicant. The action was taken under Executive Order 10865, Safeguarding Classified
Information within Industry (February 20, 1990), as amended; Department of Defense
Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program
(January 2, 1992), as amended (Directive); and the revised adjudicative guidelines (AG)
promulgated by the President on December 29, 2005, and effective within the
Department of Defense for SORs issued after September 1, 2006. 
 
Applicant answered the SOR in writing on August 27, 2007, and requested a
hearing before an Administrative Judge. I received the case assignment on October 18,
2007. DOHA issued a notice of hearing on November 14, 2007, and I convened the
hearing as scheduled on November 26, 2007. The government offered Exhibits (Ex.) 1
through 5, which were received without objection. Applicant testified on his own behalf
and submitted Exhibits A through P, without objection. DOHA received the transcript of
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the hearing (Tr.) on December 5, 2007. Based upon a review of the case file, pleadings,
exhibits, and testimony, eligibility for access to classified information is granted.
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to India. (Tr. at 10-12.) The request and the attached documents
were admitted into evidence as Exhibit 5. The facts administratively noticed are set out
in the Findings of Fact, below. 
Findings of Fact
In his Answer to the SOR, dated August 27, 2007, Applicant admitted all of the
factual allegations in the SOR. The admitted allegations are incorporated herein as
findings of fact. 
After a complete and thorough review of the evidence in the record, including
Applicant's Answer to the SOR, the admitted documents, and the testimony of
Applicant, and upon due consideration of that evidence, I make the additional findings of
fact: 
Applicant is 64 years old and was born in India in 1943. He moved to the United
States in 1969 to pursue a higher education, and he remained because of the excellent
opportunities he saw here. He became a naturalized United States citizen in 1986.
Applicant received a Masters of Science degree in Electrical Engineering from a United
States university in 1971.
Applicant is employed by a defense contractor, and he seeks a DoD security
clearance in connection with his employment in the defense sector. He previously was
employed by another defense contractor from 1974 through 2004, when he retired. He
retained a security clearance during the period that he worked for this employer. During
his career of 35 years working in the aerospace industry, Applicant has published 63
papers and obtained 16 United States patents. 
For the last 35 years, Applicant has been married to an Indian born, United
States citizen, and they have three children, who were all born in the United States, and
are U.S. citizens. His two sons are medical doctors and his daughter is attending a U.S.
university. Applicant and his wife also have one grandson, who is a United States
resident and citizen. Applicant also has one sister who is a U.S. citizen and resides
here. 
Applicant has a number of relatives that reside in India and are Indian citizens.
Applicant’s father-in-law was a member of the Parliament of India for two and one half
years, but he is approximately 86 years old, and he has been retired for many years. He
now does social and charitable work, often using his own assets, as he is quite wealthy.
Applicant has very little contact with him.
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Applicant has three brothers, two who lived in India their entire lives and are
Indian citizens, and one who lived in the United States for 35 years and is a U.S. citizen,
but has moved back to India. 
His oldest brother was the CEO of the State Bank of India. He is 87 year old and
has been retired for 28 years. His second brother is 77 years old, and long retired.
Applicant communicates with both of them approximately every three or four months.
His third brother moved back to India after he retired, because his limited financial
resources would go further in India than in the United States. 
Finally Applicant’s wife has nine siblings. All four sisters and one brother are
citizens and residents of the United States. The other four brothers are citizens and
residents of India, but none of them are employed by the Indian Government.
Applicant’s contact with them is extremely limited.
Applicant maintains a bank account in India with an approximate value of $2,000.
He also has purchased a condominium in India, which is in the process of being built,
worth approximately $164,000. He has traveled to India during the years 2000, 2001,
2005, 2006, and he testified that he planned to go again to India shortly after the
hearing date. 
Applicant testified that he had two primary reasons for visiting India as often as
he has. First, he visited his elderly and ailing mother, who passed away in 2006. The
second reason for his trips to India, was to receive a unique and beneficial treatment for
his debilitating arthritis, which was only available in India or China. This treatment
required multiple trips for treatment. He testified that he purchased the condominium so
that he could stay there after his treatments, and he kept the bank account in India to
make the payments on the condominium. 
Applicant testified that he has been successful financially in the United States,
and he offered documents into evidence to show that he had a net worth of
approximately $4.6 million (Exhibits G, H). He also offered into evidence letters from
individuals who know or have known him: in his professional life (Exhibits A-E), those
that know him in his personal life (Exhibits I-K), and from his son (Exhibit F).  They
spoke in extremely laudatory terms of his high integrity, honor and devotion to the
United States. Additionally, Applicant testified that he has been made a fellow of the
Institute of Electrical and Electronics Engineers, an extremely prestigious organization.
Finally, he testified about some of the activities in the community which he has been
involved, including the organizing of health fairs for which he has received Certificates
of Congressional Recognition (Exhibits L, M). 
I take administrative notice of the following facts regarding India. According to its
constitution, India is a “sovereign, socialist secular democratic republic.” It is a
multiparty, federal parliamentary democracy and has a population of approximately 1.1
billion people. The United States recognizes India as a key to interests of the U.S., and
it has sought to strengthen its relationship with India. However differences do remain
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between the two countries, including the concern of the U.S. over India’s nuclear
weapons program, its abuses of human rights, and its continued, increasing cooperation
with Iran.  Finally, India has been identified as one of the most active collectors of
sensitive U.S. economic and proprietary information. 
Policies
When evaluating an Applicant’s suitability for a security clearance, the
Administrative Judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful in
evaluating an Applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The Administrative Judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
2(c), the entire process is a conscientious scrutiny of a number of variables known as
the “whole person concept.” The Administrative Judge must consider all available,
reliable information about the person, past and present, favorable and unfavorable, in
making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
Applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
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Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline B, Foreign Influence
AG ¶ 6 expresses the security concern regarding foreign influence:
Foreign contacts and interests may be a security concern if the individual
has divided loyalties or foreign financial interests, may be manipulated or
induced to help a foreign person, group, organization, or government in a
way that is not in U.S. interests, or is vulnerable to pressure or coercion by
any foreign interest. Adjudication under this Guideline can and should
consider the identity of the foreign country in which the foreign contact or
financial interest is located, including, but not limited to, such
considerations as whether the foreign country is known to target United
States citizens to obtain protected information and/or is associated with a
risk of terrorism.
AG ¶ 7 describes conditions that could raise a security concern and may be
disqualifying (DC). Those that could be applicable in this case include the following: (a)
contact with a foreign family member, business or professional associate, friend, or
other person who is a citizen of or resident in a foreign country if that contact creates a
heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;
(d) sharing living quarters with a person or persons, regardless of citizenship status, if
that relationship creates a heightened risk of foreign inducement, manipulation,
pressure, or coercion; and (e) a substantial business, financial, or property interest in a
foreign country, or in any foreign-owned or foreign-operated business, which could
subject the individual to heightened risk of foreign influence or exploitation. Applicant’s
relatives, including his sister, brothers, father-in-law and brothers-in-law, who are
citizens and residents of India, make DC (a) and (b) a concern to the Government. The
bank account and the ownership of the condominium, both in India, apply to DC (e).  
AG ¶ 8 provides conditions that could mitigate security concerns (MC):
(a) the nature of the relationships with foreign persons, the country in which these
persons are located, or the positions or activities of those persons in that country are
such that it is unlikely the individual will be placed in a position of having to choose
between the interests of a foreign individual, group, organization, or government and the
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interests of the U.S.; (b) there is no conflict of interest, either because the individual's
sense of loyalty or obligation to the foreign person, group, government, or country is so
minimal, or the individual has such deep and longstanding relationships and loyalties in
the U.S., that the individual can be expected to resolve any conflict of interest in favor of
the U.S. interest. 
I find that MC (b) is applicable to this Applicant and strongly controlling for the
following reasons: Applicant, who is 64 years old, has lived in the United States for 38
years and been a U.S. citizen for 21 years. He is married to a U.S. citizen and his three
children and one grandchild are all U.S. citizens and residents.  He has worked in the
aerospace industry for 35 years and held a security clearance for most of that time with
no known infractions. He has been successful in this country and been able to
accumulate net wealth of $4.6 million. He has received many positive and laudatory
letters of recommendation from individuals that have known him in different capacities
over many years. While he has traveled to India a number of times to visit his ill mother,
who is now deceased, and to receive medical care unique to India, his attachment to
the United States is overwhelmingly greater than that to India. The value of the property
that he owns in India is insignificant compared to his U.S. holdings.
Whole Person Concept
Under the whole person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances. The Administrative Judge should consider the nine
adjudicative process factors listed at AG ¶ 2(a): “(1) the nature, extent, and seriousness
of the conduct; (2) the circumstances surrounding the conduct, to include
knowledgeable participation; (3) the frequency and recency of the conduct; (4) the
individual’s age and maturity at the time of the conduct; (5) extent to which participation
is voluntary; (6) the presence or absence of rehabilitation and other permanent
behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure,
coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.”
Under AG ¶ 2 (c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why MC (b) applies, I also find that the record evidence leaves me without
questions or doubts as to Applicant’s eligibility and suitability for a security clearance
under the whole person concept. For all these reasons, I conclude Applicant mitigated
the security concerns. 
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Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline B: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
Martin H. Mogul
Administrative Judge