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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 07-15810
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Pro se
February 26, 2009
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Decision
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ROSS, Wilford H., Administrative Judge:
The Applicant submitted his Electronic Questionnaire for Investigations
Processing (e-QIP), on January 4, 2007 (Government Exhibit 1). On April 28, 2008, the
Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR)
to the Applicant, which detailed security concerns under Guideline B stating why DOHA
could not make the preliminary affirmative finding under the Directive 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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The Applicant answered the SOR in writing on May 9, 2008, and requested a
hearing before an Administrative Judge.  Department Counsel was prepared to proceed
on June 4, 2008.  This case was assigned to me on June 6, 2008.  DOHA issued a
notice of hearing on July 9, 2008, and I convened the hearing as scheduled on August
15, 2008. The Government offered Government Exhibits 1 and 2, which were received
without objection. The Applicant testified on his own behalf and submitted Applicant’s
Exhibits A through V.  DOHA received the transcript of the hearing, and the record
closed, on August 27, 2008.  Based upon a review of the case file, pleadings, exhibits,
and testimony, eligibility for access to classified information is granted.
Procedural Ruling
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to the People’s Republic of China (China). (Transcript at 21-23.)
The request and the allied documents were not admitted into evidence, but are included
in the record.  The facts administratively noticed are limited to matters of general
knowledge and not subject to reasonable dispute.  The facts administratively noticed
are set out in the Findings of Fact, below. 
Findings of Fact
The Applicant was 55 at the time of the hearing and single.  He is employed by a
Defense contractor and seeks a security clearance in connection with his employment
in the defense industry.  In his Answers to the SOR, Applicant admitted all the
allegations in the SOR, with explanations in support of his request for access to
classified information. 
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 was born in China in 1952.  His mother has passed away from
breast cancer in 1992.  His father, his brother and sister continue to live in China.  The
Applicant has visited China annually from the year 2000 to 2007.  His father’s health is
poor, which is the primary reason he travels to China.  No one in his family works for the
Chinese government.  In addition to his trips, the Applicant calls his father once or twice
a month.  (Transcript at 42-45, 90-94; Applicant’s Exhibits E and F.) 
The Applicant came to the United States in 1986 to continue his education.  He
obtained his permanent resident status in 1991.  The Applicant became a naturalized
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American citizen in 1996.  He has worked in the Defense industry since 1997.  He has
held a security clearance for that entire period.
When his mother died in 1992, the Applicant was living in the United States.  He
could not travel back to China to be with his mother because the Chinese government
had not renewed his Chinese passport.  This was due to his involvement in a protest
outside the Chinese Embassy in Washington in 1989, during the Tien-An-Men Square
Student Protest Movement period.  (Transcript at 56-59; Applicant’s Exhibit J.) 
His involvement with this protest was not the first time the Applicant has had
issues with the Chinese government.  The Applicant’s entire family was affected by the
“Great Leap Forward” of the 1950s and the “Cultural Revolution” that swept China in the
1960s.  During the “Great Leap Forward” the Applicant and his family nearly starved.
(Transcript at 54; Applicant’s Exhibits B at 3.)  During the “Cultural Revolution,” the
Applicant and his siblings were exiled to different remote, poor, rural areas to work with
the local peasants.  He did that for two years, then he worked in a factory while
continuing to do his studies.  During this same period, the Applicant’s father was sent to
a labor camp and his mother was accused of being a Taiwanese spy because she had
a brother living there.  Because of all the things that happened to his family over the
years, the Applicant submits that he has zero sense of loyalty to the Chinese
government.  (Transcript at 59-66, 88-90; Applicant’s Exhibit B at 9, and Applicant’s
Exhibits I and K.)
On the other hand, the Applicant submits that he has long-standing relationships
and loyalties to the United States.  He is fully integrated into American society, and
appreciates the life that he has here.  At page 4, paragraph (2) of Applicant’s Exhibit B
he eloquently sets forth the differences between his life in China and that of his life here.
In particular, he stated, “In 1996 after I became a U.S. citizen, I voted for the U.S.
president and congress men. That was a very exciting moment when the first time in my
life I had the right to vote and select my leaders.”  (See Transcript at 56.)
The Applicant’s entire professional career has been spent in the Defense
industry.  He is acknowledged to be an expert in his field of expertise, and his direct
contributions to the defense of the United States have been many and varied.  His
career is filled with awards and recognitions from his employers and the Federal
government.  He is knowledgeable about the security requirements connected to his job
in the defense industry, and the record shows that he fulfills them.  (Transcript at 66-80;
Applicant’s Exhibits L through T.)  His most recent employee evaluation was very
laudatory and stated that he has the potential to rise to one of the highest levels in his
company.  (Applicant’s Exhibit T.)
The Applicant has considerable assets in the United States.  As of the date the
record closed, his net assets amounted to approximately $1,000,000.  (Transcript at 37-
39; Applicant’s Exhibit C.)  He has no assets in China whatsoever.
All of the following statements are supported by the documents submitted by the Department Counsel in1
support of his request for administrative notice.  (Administrative Notice Documents I through VI.)
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The Applicant submits that the Government’s own documents show that he is not
an individual the Chinese government would attempt to influence.  Applicant’s Exhibit U
is an extract from the “Intelligence Threat Handbook.”  This same extract is cited by the
Government in their administrative notice document Roman numeral II.  The Applicant
states at page 9 of Applicant’s Exhibit B: 
As stated in page 22 of this document [Applicant’s Exhibit U]: “The crux of
the PRC’s [People’s Republic of China] approach is not to try to exploited
(sic) a perceived vulnerability but to appeal to an individual’s desire to help
China out in some way.”  In general, the Chinese intelligence service may
prefer to appeal to young students who may [n]ot know the brutality of the
government, or who may have been benefited (sic) from the government
such as government employees and the children and relatives of the
central and local government leaders and authorities.  I and my family
were victims of this government.  How could you think we have the desire
to help this government out?
The Applicant is fully aware of the security issues involving his traveling to China.
His employers have always been notified of his trips in advance, he has reviewed the
applicable and available security videos, and he files the appropriate after action
reports.  (Transcript at 84-87.)  He is very discrete when he visits China, spending most
of his time with his ill father.  (Transcript at 45, 52.)  Though it has little if any weight, the
Applicant also repeatedly stated that if the Government believes his trips are not in the
national interest, he would stop visiting China.  (Applicant’s Exhibit B at 3.)   
The Applicant has contacts with China.  Accordingly, it is appropriate to discuss
the relationship between China and the United States at this time.   China, the most1
populous country in the world, is economically powerful, and is an important trading
partner of the United States.  It is run by the Communist Party which controls all aspects
of the Chinese government.  It has strong military forces, and has its own foreign-policy.
Although there has been some cooperation, there has been much more conflict with the
United States in the past.  China has an extremely large army, a sophisticated defense
establishment, and space capability.  China has launched satellites, has ballistic
missiles, nuclear arms, and nuclear bombs.  Its diplomatic and military dispute with the
Republic of China (Taiwan), foreshadows a possible military conflict, which the United
States opposes as a resolution of the conflict.  China has an abysmal human rights
record, which includes arbitrary killings; detention or incarceration without notice in
mental facilities; torture; arbitrary arrest, detention or exile; no right to a public, fair trial;
a politically controlled judiciary; lack of due process; restrictions on free speech, on
religious freedom, on freedom of travel, on freedom of assembly; and no rights of
privacy - family, home or correspondence. 
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The PRC engages in espionage against the United States through an extensive
network of businesses, personnel, and specific programs designed to acquire advanced
U.S. military technology. One approach is to covertly conduct espionage by personnel
from government ministries, commissions, institutes, and military industries,
independently of the PRC intelligence services.  This is believed to be the major method
of PRC intelligence activity in the United States.  It also tries to identify ethnic Chinese
in the United States who have access to sensitive information, and sometimes is able to
enlist their cooperation in illegal technology information transfers.   However, I also note
the following in administrative notice document Roman numeral II at 21, “There is no
evidence that the PRC considers Chinese-Americans to be more vulnerable to
approach than any other group.”
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.  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
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. 
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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
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 has family members in China (Guideline B).  The Applicant,
on the other hand, has successfully mitigated the Government's case.
Paragraph 2 (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.
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In this case, Applicant has contact with his remaining family in China.
Specifically, his father, brother and sister.  The Applicant has traveled annually to China
since the year 2000.
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; and (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. 
The Applicant has provided compelling evidence to show that the following
Mitigating Conditions also apply to this particular case, given his particular background:
8(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.; and (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.
The Applicant is a person who has shown over an extensive period of years his
connections to the United States and his desire to be not only a good citizen, but a
security aware citizen.  It is to his benefit that the Applicant shows an appreciation of the
possible activities of the Chinese government.  This is shown by his affirmative acts to
make sure that his travels to China are appropriate, and his conduct when there.  The
evidence shows that he is discrete and prudent.  
The Applicant has extensive financial ties to the United States.  In addition, he is
a deeply respected member of the Defense industry, who makes a substantial income.
Under the particular facts of this case, the Applicant has shown that he has deep and
longstanding loyalties in the United States.  Based on my analysis of the facts, including
a consideration of the espionage activities of the Chinese government, I find that the
Applicant “can be expected to resolve any conflict of interest in favor of the U.S.
interest.”
 
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
ISCR Case No. 03-17620 at 4 (App. Bd. Apr. 17, 2006).2
I conclude that the whole person analysis weighs heavily toward approval of the Applicant’s security3
clearance.  Assuming a higher authority reviewing this decision determines that the mitigating conditions
articulated under Mitigating Conditions 8(a) and (b) do not apply and severs any consideration of them, I find
that the whole person analysis standing alone is sufficient to support approval of a security clearance in this
case.
“[Matters], such as evidence of an applicant’s personal loyalties, the nature and extent of an applicant’s family4
ties to the U.S. relative to his ties to a foreign country, his or her social ties within the U.S., and many others
raised by the facts of a given case can properly be factored in to a judge’s evaluation of an applicant’s
worthiness for a security clearance.”  ISCR Case No. 04-11414 at 4 (App. Bd. Mar. 5, 2007).  (Citations
omitted.)
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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.
“[A] Judge is not limited to Adjudicative Guidelines mitigating conditions when
deciding whether an applicant has demonstrated extenuation or mitigation.”   The2
application of the Directive’s General Factors to the Applicant’s foreign connections,
specifically relevant General Factor (8), also justifies granting the Applicant a security
clearance.  The totality of this Applicant’s conduct and circumstances, as set forth at
length above, including the virtually non-existent potential for exploitation, shows that he
warrants a favorable finding under the whole person standard.3
  
The record shows that the Applicant has been a patriotic American citizen for
many years, and has substantial financial assets in the United States.  His immediate
family lives in China, but the evidence shows that they have no love for the Chinese
government, and he would successfully withstand any hypothetical attempt at coercion.
The Applicant is alert to the security concerns presented by his particular circumstances
and the responsibilities incumbent upon him.  The Applicant testified about his pride in
being an American citizen and a member of the defense industry.  Using the whole
person standard, the Applicant has mitigated the security significance of his foreign
connections and is eligible for a security clearance.4
On balance, it is concluded that the Applicant has successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a finding for the Applicant as to the factual and conclusionary
allegations expressed in Paragraph 1 of the Government's Statement of Reasons.
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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 THE APPLICANT
Subparagraph 1.a.: For the Applicant
Subparagraph 1.b.: For the Applicant
Subparagraph 1.c.: For the 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.
                                              
WILFORD H. ROSS
Administrative Judge