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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 06-26254
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Esquire, Department Counsel
For Applicant: Pro se
February 19, 2008
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Decision
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ROSS, W ilford H., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on August 14,
2002 (Government Exhibit 1). On July 11, 2007, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant, which detailed
security concerns under Guidelines C and B of the Directive describing why DOHA
could not make the preliminary affirmative finding that it is clearly consistent with the
national interest to grant or continue a security clearance for the Applicant, and
recommended referral to an Administrative Judge to determine whether a clearance
should be denied or revoked. The action was taken under Executive Order 10865,
Safeguarding Classified Information within Industry (February 20, 1960), 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 President Bush on December 29, 2005,
and effective within the Department of Defense for SORs issued after September 1,
2006. 
 
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Applicant acknowledged receipt of the SOR on July 19, 2007. He answered the
SOR in writing on August 10, 2007, and requested a hearing before an Administrative
Judge. Department Counsel was prepared to proceed on September 6, 2007, and I
received the case assignment on September 12, 2007. DOHA issued a notice of
hearing on October 4, 2007, and I convened the hearing as scheduled on October 22,
2007. The Government offered Government Exhibits 1 through 4, which were received
without objection. Applicant testified on his own behalf and submitted Applicant’s
Exhibits A through I, without objection. DOHA received the transcript of the hearing (Tr.)
on October 31, 2007. I granted Applicant’s request to keep the record open until
November 2, 2007, to submit additional matters.  On October 29, 2007, he submitted
Applicant’s Exhibit J, without objection. The record closed on October 31, 2007. Based
upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to
classified information is denied.
Procedural and Evidentiary Rulings
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to the Russian Federation (Russia). (Transcript at 12-18.) The
request and the attached documents were not admitted into evidence, but were
included in the record as Government Exhibits 5 through 13. The facts administratively
noticed are set out in the Findings of Fact, below. 
Findings of Fact
The Applicant is 57, married, and has a Post-Graduate degree.  He is employed
by a defense contractor as a manager and seeks a Secret level clearance in connection
with his employment in the defense industry.  In his Answer to the SOR, dated August
10, 2007, the Applicant admitted factual allegations 1.a., 1.b., 1.d., 1.e., 1.g., 1.h., 1.i.,
and 2.a. of the SOR, with explanations. He denied allegations 1.c., 1.f., and 1.j.  He also
provided additional information to support his request for eligibility for a security
clearance.  
Paragraph 1 (Guideline B - Foreign Influence)  
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has foreign contacts and interests that could lead to the exercise
of poor judgment, unreliability or untrustworthiness on the part of the Applicant.
The Applicant’s immediate family all live in the United States.  This includes his
wife, daughter, parents, son by a previous marriage and two sisters.  Except for his son,
who is a permanent resident of the United States, all of his relatives are also American
citizens.  By dint of Russian law, those relatives, like the Applicant, are still viewed as
The Applicant’s father fought in W orld W ar II as an officer in the Red Army.  That fact has no current security1
significance.  (Transcript at 99-101.)
“Research Establishment” is not the real name of the organization.2
All of the following statements are supported by the documents submitted by the Department Counsel in3
support of her request for administrative notice.  (Government Exhibits 5 through 13.)
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Russian citizens as well.  None of the Applicant’s direct relatives were members of the
Communist Party or were connected to the Soviet or Russian defense establishment.1
The Applicant and his family members receive no funds of any type from the Russian
government.  (Transcript at 78-82, 95-105.)  
The Applicant’s mother-in-law, brother-in-law and step-son are residents and
citizens of Russia.  His wife is close to her mother and brother and talks to her mother
by telephone on an approximately weekly basis.  (Transcript at 83-90.)   She is also
close to her son by a prior marriage, and talks to him on a weekly basis.  (Transcript at
90-94.)  None of these relatives are members of the Communist Party or were
connected to the Soviet or Russian defense establishment.
From 1972 to 1994 the Applicant was employed by a Research Establishment
connected to the Soviet, and then Russian, Academy of Science.   During part of his2
time at the Research Establishment he held the Soviet equivalent of a Top Secret
clearance and, after the fall of the Soviet Union, the Russian equivalent of a Secret
clearance.  His current employment is directly related to his work in Russia.  (Transcript
at 76-78.) 
The Applicant has traveled to Russia in 2003, 2004 and 2006.  During each of
those trips, he presented his Russian passport to Russian authorities.  Each of his trips
to Russia have been in connection with his employment.  (Government Exhibit 3,
Transcript at 66-69.) 
The Applicant has contacts with Russia.  Accordingly, it is appropriate to discuss
the situation in Russia at this time.   I take administrative notice of the following facts.3
Russia is a federation made up of 21 republics. Its government has a poor human rights
record and it is plagued with corruption, media suppression, politically motivated crimes,
and human rights violations. Russia has a significant intelligence capability that it
retained from the Soviet Union. Russia’s intelligence efforts continue to increase in
sophistication, scope, and number. It has an aggressive industrial espionage and
intelligence collection program targeting sensitive and protected U.S. technology.
Russia’s government sells to other countries technology with application for weapons of
mass destruction (nuclear and biotechnology) and missiles. It has provided technology
and support to China, Venezuela, India, and Iran against U.S. wishes. 
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Paragraph 2 (Guideline C - Foreign Preference)  
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has acted in a way that shows a preference for another country
ahead of the United States. 
The Applicant was born in Russia (then the Soviet Union) in 1950.  He and his
immediate family emigrated to the United States in 1994 after applying for refugee
status.  (Applicant’s Exhibits C, D, E, F and J; Transcript at 40-58.)  The Applicant
began working for his current employer in 1999.  He became a naturalized American
citizen in July 2001.  (Government Exhibit 1, Question 3.)  His wife was also born in
Russia, and she also became a naturalized American citizen in July 2001.  They were
married in 1983, and have one child, who is also a naturalized citizen of the United
States.  They have about $2 million in assets in the United States.  (Transcript at 112.)
The Applicant has had a Russian passport during the entire time he has been an
American citizen.  In April 2005, the Applicant renewed this passport.  (Government
Exhibit 3, and Government Exhibit 4 at page 5.)  He submits that he uses this passport
only to travel to Russia at the behest of his employer to attend international conferences
concerning his area of expertise.  (Transcript at 60-69.)  The Applicant argues that the
Russian passport is just a visa to him, because there are stamps on there that identify
him as a dual citizen of Russian and the United States.  (Government Exhibit 2 at page
3; Transcript at 73-75.)  
The Applicant is still a dual citizen of Russia and the United States.  The totality
of the record shows that the Applicant is very reluctant to credibly state that he is willing
to renounce his Russian citizenship.  The Applicant’s primary reasons for not
renouncing his Russian citizenship appears to be that he does not want to draw the
attention of the Russian authorities to himself, as well as those reasons stated above
concerning his passport.  (Government Exhibit 4 at page 3; Transcript at 70-75, 128-
130.)
The Applicant stated that he has discussed the situation regarding his passport
with the security office of his employer.  He is knowledgeable of the requirements set
forth in the Directive concerning how a foreign passport may be retained and used.
According to him, nobody has proposed a solution in accordance with those
requirements.  (Transcript at 120-124.)   
Mitigation
The Applicant submitted letters and other documents.  They show that the
Applicant is a highly respected expert in his field, and that he has provided valuable
services to the defense efforts of the United States.  People who work with him currently
believe him to be an honest man and recommend him for a security clearance.
(Applicant’s Exhibits C, D, E, F, G, H, and I.)
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Policies
W hen 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.  In addition, the Administrative Judge may also rely on his own
common sense, as well as his knowledge of the law, human nature, and the ways of the
world, in making a reasoned 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
classif ied 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.
 
Finally, as emphasized by President Eisenhower in Section 7 of Executive Order
10865, “Any determination under this order . . . shall be a determination in terms of the
national interest and shall in no sense be a determination as to the loyalty of the
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applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information). 
Analysis
It is the Government's responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant's conduct and the
continued holding of a security clearance.  If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation which is sufficient to overcome or outweigh the Government's case.  The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him or her a security clearance.
In this case the Government has met its initial burden of proving by substantial
evidence that the Applicant is a dual citizen of Russia and the United States, and that
he has a valid Russian passport in his possession (Guideline C); and that the Applicant
has family members in Russia (Guideline B)
Paragraph 1 (Guideline B - Foreign Influence) 
The concern under Guideline B is styled as follows:
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.
The Applicant’s entire immediate family lives in the United States.  It is obvious
that the Applicant spent a great deal of time, trouble and money to move his immediate
family here.  Except for his son, they are all American citizens.  Except for his wife, as
described below, I find that the fact they all may be viewed as Russia by dual citizens
has no current security significance.  Subparagraphs 1.b., 1.c., 1.d., 1.e. and 1.f. are
found for the Applicant.
His wife, however, has connections to Russia.  As described above, her mother,
brother and son still live in Russia.  His wife has many contacts with her relatives and it
cannot be said that her relationship, as opposed to his, can be seen as being casual or
the contacts infrequent. 
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In addition, there is the situation with the Applicant’s long-time employment with
the Research Establishment.  To be sure, he made the choice to emigrate to the United
States, a decision which had serious consequences for his family.  The fact remains
that he was a senior scientist in the Research Establishment for many years.  Under
certain circumstances, this involvement could be mitigated.  However, combined with
his continuing to hold Russian citizenship and passport, as set forth below, this
relationship has a continuing security significance.
All of these connections must also be viewed in the context of the Russian
government, and in particular that government’s history of attempting to obtain classified
and other information from American companies.  To his credit, the Applicant repeatedly
stated that he is a loyal American citizen, that he understands his responsibilities as a
security clearance holder, and that he would not be a party to any attempt by the
Russian government to obtain information from him.  However, given the depth and
extent of his connections with Russia, he has failed to meet his burden of showing an
unequivocal connection to the United States. 
Based on the evidence the Government has presented, the following
Disqualifying Conditions apply to this case: 7.(a) Contact with a foreign family member .
. . 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; (b)
connections to a foreign person . . . that create a potential conflict of interest between
the individual’s obligation to protect sensitive information or technology and the
individual’s desire to help a foreign person . . . by providing that information; and (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.  I have also considered the information concerning the Russian government,
provided by Department Counsel in Government Exhibits 5 through 10. 
The Applicant has not provided compelling evidence to show that the following
Mitigating Conditions also apply to this particular case, given his particular background:
7(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
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; and (c) 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.  Paragraph 1 is found against the Applicant.
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Paragraph 2 (Guideline C - Foreign Preference) 
Turning to Guideline C, the Applicant has not mitigated the Government’s
concerns about his dual citizenship with Russia, and his continued possession and use
of his Russian passport after becoming an American citizen.  The concern is stated thus
under this Guideline, When an individual acts in such a way as to indicate a preference
for a foreign country over the United States, then he or she may be prone to provide
information or make decisions that are harmful to the interests of the United States.
Under any analysis of the evidence, it is obvious that the Applicant would like to
retain his Russian citizenship and passport if at all possible.  The Government well
understands, and appreciates, that the Applicant does not wish to draw attention to
himself.  However, the Applicant did not even attempt to make a credible showing that
he expressed a willingness to renounce dual citizenship as required by Mitigating
Condition 11.(b).  The reasons were somewhat obscure, but seem to revolve around his
wife wanting to visit her parents.
Disqualifying Condition 10(a)(1) applies to the facts of this case: Conditions that
could raise a security concern and may be disqualifying include: (a) exercise of any
right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or
through the foreign citizenship of a family member.  This includes but is not limited to:
(1) possession of a current foreign passport.  (Emphasis supplied.)
Once again, the Government understands and appreciates that the Applicant
would want to travel to Russia on his Russian passport in order not to draw attention to
himself from a security standpoint.  It is also understood that his employer would want a
Russian speaking expert to go to symposia in Russia.  That is the reason behind the
two prongs of Mitigating Conditions 11.(d) and 11.(e).  Neither the Applicant nor his
company have attempted to obtain permission from the cognizant security authority for
use of his Russian passport, as required by Mitigating Condition 11.(d).  In addition, the
Applicant’s Russian passport has not been destroyed, surrendered to the cognizant
security authority, or otherwise invalidated.  Accordingly, Mitigating Condition 11.(e)
does not apply to this case.  In light of the foregoing, Guideline C is found against the
Applicant.
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,
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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.  Two of the factors have the most
impact on this case.  First, I cannot find that there is the “presence or absence of
rehabilitation and other permanent behavioral changes,” as set forth under AG ¶ 2(a)(6).
The Applicant simply has not engaged in sufficient conduct which shows a preference
for the United States instead of Russia.  Such conduct might include his taking the
actions concerning his Russian passport set forth in Mitigating Conditions 11.(d) and
(e).  In addition, he could state a credible willingness to renounce his Russian
citizenship at an appropriate time in the future.  
The lack of any of the actions stated above make it impossible for me to find that
there is little or no “potential for pressure, coercion, exploitation, or duress” as set forth
in AG ¶ 2(a)(8).  
On balance, it is concluded that the Applicant has not successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a finding against the Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1 and 2 of the Government's Statement of
Reasons.
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: AGAINST THE APPLICANT
Subparagraph 1.a: Against the Applicant
Subparagraph 1.b: For the Applicant
Subparagraph 1.c: For the Applicant
Subparagraph 1.d: For the Applicant
Subparagraph 1.e: For the Applicant
Subparagraph 1.f: For the Applicant
Subparagraph 1.g: Against the Applicant
Subparagraph 1.h: Against  the Applicant
Subparagraph 1.i.: Against the Applicant
Subparagraph 1.j.: Against the Applicant
Paragraph 2, Guideline C: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
_________________
W ILFORD H. ROSS
Administrative Judge