KEYWORD: Guideline B; Guideline C DIGEST: The Board concludes that both parties misread the Judge’s decision as finding against Applicant under Guideline C and in favor of Applicant under Guideline B, due in part to the discrepancy between the conclusions in the text of the Judge’s decision and the Formal Findings and in part to the fact that the Judge relied in her Guideline B analysis on Applicant’s negative responses to a hypothetical question that had been alleged under Guideline C. To be fair to the parties, we remand the case to the Judge for the issuance of a new decision which should address all the relevant circumstances relating to the Guideline B. Adverse decision remanded. CASENO: 06-07293.a1 DATE: 04/16/2008 DATE: April 16, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-07293 APPEAL BOARD DECISION APPEARANCES FOR GOVERNMENT Candace L. Le’i, Esq., Department Counsel FOR APPLICANT Sheldon I. Cohen, Esq. Decision at 9.1 Id at 7-8.2 Id at 8.3 As a general rule, an applicant’s stated intention of what he might do in the future under a hypothetical set of4 circumstances is entitled to limited weight unless there is record evidence that the applicant has acted in a similar manner in the past under comparable circumstances. See, e.g., ISCR Case No. 06-24575 at 4 (App. Bd. Nov. 9, 2007). The likelihood or not of the hypothetical ever occurring may further affect the weight to be assigned. 2 The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 12, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 27, 2007, after the hearing, Administrative Judge Darlene Lokey Anderson denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. There was no cross- appeal. For the reasons set forth below, the Board remands the case to the Judge for the issuance of a new decision. In the Formal Findings section of her decision, the Judge found in favor of Applicant under Guideline B and SOR paragraphs 1(a) and 1(b), and against Applicant under Guideline C and SOR paragraphs 2(a) through 2(f). However, a close reading of the text of the Judge’s decision indicates1 just the opposite—that she actually found in favor of Applicant under Guideline C and against Applicant under Guideline B. In the Conclusions section of her decision, the Judge listed the applicable Guideline C Disqualifying Conditions. She then discussed the security implications of Applicant’s dual citizenship with Israel, his possession and use of an Israeli passport to visit his family members in Israel, and his subsequent renunciation of his Israeli citizenship and the surrender of his Israeli passport. Afterwards the Judge stated: “Under the circumstances of this case, I find for the Applicant under Guideline C (Foreign Preference).” The Judge then listed the applicable2 Guideline B Disqualifying Conditions and discussed why Applicant’s connection to his two family members in Israel created a potential conflict of interest between his obligation to protect sensitive information or technology and his desire to help those individuals or their country. Following that analysis, the Judge then stated: “Accordingly, Guideline B, Foreign Influence is found against Applicant.” 3 As a threshold matter, the Board concludes that both parties misread the Judge’s decision as finding against Applicant under Guideline C and in favor of Applicant under Guideline B. This was apparently due in part to the discrepancy between the conclusions in the text of the Judge’s decision and the Formal Findings. It was also apparently due in part to the fact that the Judge relied extensively on Applicant’s negative responses to a hypothetical question as to his willing to bear4 In his brief, Applicant’s counsel asserts that DOHA engages in the discriminatory practice of only questioning5 applicants with family members in Israel as to whether they would bear arms for the U.S. against that country. Applicant’s assertion in that regard without merit. Applicants with family members in other countries are also asked that question. See, e.g., ISCR Case No. 02-02172 (A. J. May 16, 2003) (South Korea); ISCR Case No. 01-02204 (A. J. Sep. 4, 2001) (Switzerland); ISCR Case No. 03-21111 (A. J. Bd. Jun. 7, 2006) (Afghanistan); ISCR Case No. 01-10189 (A. J. Dec. 31, 2001 (United Kingdom); ISCR Case No. 00-0127 (A. J. Nov. 7, 2000) (Ireland); ISCR Case No. 03-04132 (A. J. Mar. 29, 2004) (People’s Republic of China); ISCR Case No. 02-01987 (A. J. Nov. 12, 2003) (Cuba); ISCR Case No. 01-26993 (A. J. Aug. 6, 2003) (Iran); ISCR Case No. 01-16419 (A. J. Oct. 10, 2002) (Egypt); ISCR Case No. 03- 26412 (A. J. Feb. 22, 2006). This was evidence which the Judge could properly consider along with the other evidence of record in reaching6 her decision. As noted above, the Board concluded that Guideline C had been resolved in favor of Applicant. Therefore,7 that Guideline is no longer at issue. In conducting her analysis, the Judge should be cognizant of the Board’s decision in ISCR Case No. 03-214348 at 3-5 (App. Bd. Feb. 20, 2007). 3 arms for the U.S. against Israel in her analysis of the security concerns presented by Applicant’s5 foreign family ties under Guideline B. Applicant’s responses in that regard had actually been6 asserted as factual allegations under Guideline C. The Board recognizes the presence of some ambiguity in this matter. Therefore, in order to be fair to the parties, the most expeditious resolution is to remand the case to the Judge for the issuance of a new decision. In her new decision, the Judge’s analysis should address all the relevant circumstances relating to the Guideline B allegations, including the current significance of7 Applicant’s foreign family ties, Applicant’s ties to the U.S., the circumstances under which Applicant has previously held a security clearance, the evidence as to Applicant’s character, and the identity of the country in accordance with Directive.8 Order The Judge’s adverse security clearance decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields 4 William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board