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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ADP Case No. 06-13134 
  ) 
 ) 
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: Ray T. Blank, Jr., Esq., Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
LOUGHRAN, Edward W., Administrative Judge: 
 
Applicant mitigated the concerns raised by his foreign preference and foreign 
influence. Eligibility for access to sensitive information is granted. 
 
On December 19, 2007, the Defense Office of Hearings and Appeals (DOHA) 
issued a Statement of Reasons (SOR) detailing the trustworthiness concerns under 
Guideline C, Foreign Preference and Guideline B, Foreign Influence. 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); Department of Defense (DoD) Regulation 5200.2-R, Personnel 
Security Program, dated January 1987, as amended (Regulation), 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 January 22, 2008, and requested a 
hearing before an Administrative Judge. The case was assigned to me on February 25, 
2008. DOHA issued a Notice of Hearing on March 14, 2008. I convened the hearing as 
scheduled on April 9, 2008. The Government offered exhibits (GE) 1 through 4, which 
were admitted without objection. Applicant testified on his own behalf, and submitted 
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Exhibits (AE) A through E, which were received without objection. DOHA received the 
transcript of the hearing (Tr.) on April 18, 2008.  
 
Procedural and Evidentiary Rulings 
 
Request for Administrative Notice 
 
Department Counsel submitted a formal request that I take administrative notice 
of certain facts relating to Russia and Ukraine. Applicant did not object. The request and 
the attached documents were not admitted into evidence but were included in the 
record as Hearing Exhibits (HE) I through XV. The facts administratively noticed are set 
out in the Findings of Fact, below.  
 
Findings of Fact 
 
 Applicant is 29 years old. He was born in Russia. He came to the United States 
in 1997 and became a U.S. citizen in 2004. He is married with three children, ages 
seven, five, and three years old. All his children were born in the U.S. His wife is 
pregnant with their fourth child. He has an associate’s degree from an American 
college.1 
 
 Applicant’s parents were born in Russia. They are both 66 years old. They 
brought Applicant and his three brothers to the U.S. in 1997, when he was 19 years old, 
and were accepted as refugees because of religious persecution. His parents both 
became U.S. citizens and reside in the U.S. His three brothers are also U.S. citizens 
and residents. His family members have not formally applied to renounce their Russian 
citizenship. His grandparents are deceased. He has some extended family in Russia, 
but he has not had any contact with them since his trip there in 2006.2 
 
 Applicant’s wife was born in Ukraine. She came to the U.S. in 1995. She became 
a U.S. citizen in 2004. Her parents live in the U.S. as permanent residents. She has 
seven brothers and sisters. They all now live in the United States. Six of her siblings are 
U.S. citizens. One sibling is a permanent resident.3   
 
 Applicant had a Russian passport that was issued in 2002. He traveled to Russia 
in 2003, before he became a U.S. citizen, to obtain dental work. As a Russian citizen it 
was much less than he would have paid in the U.S. He spent about three weeks in 
Russia on that trip. He continued to possess the passport after he became a U.S. 
citizen. He used the Russian passport during a 2006 trip to enter and exit Russia. With 
a Russian passport, Applicant saved the cost of a visa to enter Russia. He visited 
Ukraine on the same trip and used his U.S. passport to enter and exit Ukraine. The 
                                                          
1 Tr. at 26-29, 53; GE 1-3. 
 
2 Tr. at 26, 35-37, 42, 55; Applicant’s response to SOR; GE 1, 3. 
 
3 Tr. at 29 53-56; Applicant’s response to SOR; GE 1, 3. 
 
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passport expired in 2007. He has no intention to renew the passport or obtain another 
Russian passport. He is willing to renounce his Russian citizenship.4 
 
 Applicant is very highly regarded by his current employer. He is described as an 
exemplary employee of the highest caliber, dependable, hard working, punctual, polite, 
dedicated, intelligent and ethical. His performance appraisals were very positive. The 
general manager of where he worked from 1998 to 2005, wrote that Applicant was 
promoted three times during his employment and that he was an extremely valuable 
asset because of his loyalty, work ethic, and cheerful demeanor. He was recommended 
“for any position where integrity and trust are required.”5 
 
The Russian Federation 
 
The Russian Federation is composed of 21 republics. The Government consists 
of a strong president, a prime minister, a bicameral legislature and a weak judiciary. It is 
a vast and diverse country with a population of 142 million people. It achieved 
independence with the dissolution of the Soviet Union on August 24, 1991. It is a 
nuclear superpower that continues to develop politically, socially, and economically. 
 
The threat of terrorism in Russia continues to be significant. Travel in the areas in 
the vicinity of Chechnya may be dangerous, despite Russian efforts to suppress the 
terrorists. Acts of terrorism include taking hostages and bombings.  
 
Russia has recognized the legitimacy of international human rights standards, 
but human rights abuses continue. Both Russian federal forces and Chechen rebel 
forces act with impunity while engaging in torture, summary executions, 
disappearances, and arbitrary detentions. Additional problems include corruption, media 
suppression, life-threatening prison conditions, and corruption in law enforcement.  
 
The Russian Federation’s intelligence capability is significant and focuses on 
collection of information from the United States. As of 2005, Russia and China were the 
two most aggressive collectors of sensitive and protected U.S. technology and 
accounted for the majority of such targeting. Russia also provides technologies which 
could be used in the construction of weapons of mass destruction and missiles to other 
countries. It is a leading arms exporter, with major sales of advanced weapons and 
military-related technology to China, India, Iran, and Venezuela.  
 
U.S. citizens who have at one time held Russian citizenship may be required to 
renounce Russian citizenship before applying for a Russian visa in their U.S. passport. 
Unless a Russian citizen has formally renounced his or her Russian citizenship, he or 
she risks being considered a Russian citizen and not allowed to depart except on a 
Russian passport. 
 
 
                                                          
4 Tr. at 31-33, 47, 51-52; Applicant’s response to SOR; GE 1-4. 
 
5 AE A-E. 
 
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Ukraine 
 
 Ukraine has a parliamentary-presidential type of government since becoming 
independent of the Soviet Union in 1991. It is undergoing profound political and 
economic change as it moves toward a market economy and multiparty democracy.  
After the first free elections in December 1991, presidential elections were marred by 
government intimidation and electoral fraud. Subsequent parliamentary and local 
elections in 2006 and 2007 were in line with international standards. Ukraine has 
significant human rights problems. Even though prohibited by law, there have been 
instances of torture, arbitrary detention of persons critical of the government, and 
warrantless violations of privacy.   
 
 Ukraine inherited a military force of 780,000 from the Soviet Union, and is 
seeking to modernize with an eye toward achieving NATO standards. Ukraine 
participates in six United Nation peacekeeping missions and has a small number of 
troops serving in supporting roles with Coalition forces in Iraq.    
 
 Ukraine’s foreign policy goals include membership in the World Trade 
Organization, the European Union, and the North Atlantic Treaty Organization. Ukraine 
has peaceful and constructive relations with its neighbors. Relations with Russia are 
difficult and complex, however, due to differing foreign policy priorities in the region, 
energy dependence, payment arrears, disagreement over stationing of Russian military 
forces, and some boundary disputes.   
 
President Bush visited Ukraine on April 1, 2008. He praised Ukraine’s democratic 
and military reforms and noted that Ukraine is the only non-NATO country supporting 
every NATO mission. He announced that the United States strongly supported 
Ukraine’s request to join NATO.6 
 
Policies 
 
Positions designated as ADP I and ADP II are classified as “sensitive positions.”  
(See Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3.)  “The standard that must be met for 
. . . assignment to sensitive duties is that, based on all available information, the 
person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to 
sensitive duties is clearly consistent with the interests of national security.” (See 
Regulation ¶ C6.1.1.1.) The Deputy Under Secretary of Defense (Counterintelligence 
and Security) Memorandum, dated November 19, 2004, indicates trustworthiness 
adjudications will apply to cases forwarded to DOHA by the Defense Security Service 
and Office of Personnel Management. Department of Defense contractor personnel are 
afforded the right to the procedures contained in the Directive before any final 
unfavorable access determination may be made. (See Regulation ¶ C8.2.1.)   
 
When evaluating an Applicant’s suitability for a public trust position, the 
Administrative Judge must consider the disqualifying and mitigating conditions in the 
AG. These guidelines are not inflexible rules of law. Instead, recognizing the 
                                                          
6 I take administrative notice of this paragraph independent of the Government’s request. 
 
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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 
[sensitive] 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 
trustworthiness decision.  
 
A person who seeks access to sensitive 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 sensitive information. Decisions include, by necessity, consideration of 
the possible risk the Applicant may deliberately or inadvertently fail to protect or 
safeguard sensitive information. Such decisions entail a certain degree of legally 
permissible extrapolation as to potential, rather than actual, risk of compromise of 
sensitive information. 
  
Section 7 of Executive Order (EO) 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 C, Foreign Preference 
 
 The security concern relating to the guideline for Foreign Preference is set out in 
AG ¶ 9: 
 
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. 
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The guideline notes several conditions that could raise security concerns under 
AG ¶ 10. Two are potentially applicable in this case:   
 
(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;  
 
(3) accepting educational, medical, retirement, social welfare, or 
other such benefits from a foreign country; 
 
(b) action to acquire or obtain recognition of a foreign citizenship by an 
American citizen. 
 
 Applicant traveled to Russia in 2003 to obtain dental work. This occurred before 
he became a U.S. citizen. That action does not raise a disqualifying condition. He 
possessed and used a Russian passport while a U.S. citizen. The passport expired in 
2007. This raises AG ¶ 10(a) as a concern. The use of the Russian passport while a 
U.S. citizen could also raise a concern under AG ¶ 10(b), as an action to obtain 
recognition of his Russian citizenship.  
 
Conditions that could mitigate Foreign Preference security concerns are provided 
under AG ¶ 11, including: 
 
(a) dual citizenship is based solely on parents’ citizenship or birth in a 
foreign country; 
 
(b) the individual has expressed a willingness to renounce dual 
citizenship; 
 
(c) exercise of the rights, privileges, or obligations of foreign citizenship 
occurred before the individual became a U.S. citizen or when the 
individual was a minor; 
 
(d) use of a foreign passport is approved by the cognizant security 
authority; and 
 
(e) the passport has been destroyed, surrendered to the cognizant 
security authority, or otherwise invalidated. 
 
Russia may continue to consider Applicant a Russian citizen until he formally 
renounces his Russian citizenship. AG ¶ 11(a) does not totally apply because he 
actively exercised his Russian citizenship after becoming a U.S. citizen. AG ¶ 11(b) is 
applicable because he expressed a willingness to renounce his Russian citizenship. 
The passport is expired and Applicant does not intend to renew it or obtain another one. 
AG ¶ 11(e) is applicable.  
 
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Guideline B, Foreign Influence 
 
 The security concern relating to the guideline for Foreign Influence is set out in 
AG ¶ 7: 
 
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 guideline notes several conditions that could raise security concerns under 
AG ¶ 7. Three are potentially applicable in this case:   
 
(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; 
 
(b) connections to a foreign person, group, government, or country 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, group, or country 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. 
 
Applicant’s parents, siblings, and six of his wife’s seven siblings are U.S. citizens 
and residents. They may also be considered citizens of Russia or Ukraine because they 
have not formally renounced their former citizenships. His wife’s parents and one of her 
siblings are not U.S. citizens, but live here as permanent residents.7 I find the 
connection that Applicant’s family has with their former countries is minimally sufficient 
to create a heightened risk of foreign exploitation, inducement, manipulation, pressure, 
or coercion, or raise a potential conflict of interest. AG ¶¶ 7(a) and (b) have been raised 
by the evidence.  
 
Conditions that could mitigate Foreign Influence security concerns are provided 
under AG ¶ 8. The following is potentially applicable:  
 
                                                          
7 The citizenship of Applicant’s parents-in-law was not raised in the SOR, and is therefore not 
considered for disqualifying purposes, but will be considered when analyzing the whole person. 
 
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(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. 
 
Almost all of Applicant and his wife’s family are now U.S. citizens and residents. 
The few remaining who are not yet citizens are permanent residents. I find that it is 
extremely unlikely Applicant 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. AG ¶ 8(a) is applicable. 
 
Whole Person Concept 
 
 Under the whole person concept, the Administrative Judge must evaluate an 
Applicant’s eligibility for a public trust position 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 public 
trust position must be an overall common sense 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 and I considered the totality of 
Applicant’s ties to Russia and Ukraine. Applicant was born in Russia. His entire family 
came to the U.S. in 1997 as refugees because of religious persecution. His parents and 
three brothers all became U.S. citizens and reside in the United States, but they have 
not formally applied to renounce their Russian citizenship. His wife came to the U.S. in 
1995. She became a U.S. citizen in 2004. Her parents live in the U.S. as permanent 
residents. Her seven brothers and sisters live in the United States and all are U.S. 
citizens, except for one sibling who is a permanent resident. Applicant used a Russian 
passport to enter Russia after becoming a U.S. citizen. The passport has expired and 
he does not intend to renew it or obtain another one. He is willing to renounce his 
Russian citizenship.  
 
I considered the nature of the governments of Russia and Ukraine. Both 
countries have human rights issues and Russia has been victimized by terrorism and is 
known to conduct intelligence operations against the United States. Ukraine is moving 
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closer to obtaining NATO status. However, Guideline B is not limited to countries hostile 
to the United States. “The United States has a compelling interest in protecting and 
safeguarding classified information from any person, organization, or country that is not 
authorized to have access to it, regardless of whether that person, organization, or 
country has interests inimical to those of the United States.”8 The distinctions between 
friendly and unfriendly governments must be made with caution. Relations between 
nations can shift, sometimes dramatically and unexpectedly. Furthermore, friendly 
nations can have profound disagreements with the United States over matters they view 
as important to their vital interests or national security. Finally, we know friendly nations 
have engaged in espionage against the United States, especially in the economic, 
scientific, and technical fields. Nevertheless, the nature of a nation’s government, its 
relationship with the U.S., and its human rights record are relevant in assessing the 
likelihood that an applicant’s family members are vulnerable to government coercion. 
The risk of coercion, persuasion, or duress is significantly greater if the foreign country 
has an authoritarian government, a family member is associated with or dependent 
upon the government, or the country is known to conduct intelligence operations against 
the U.S. Also very important is whether the foreign country is associated with a risk of 
terrorism. 
 
Most of Applicant and his wife’s family are now U.S. citizens; the remaining are 
permanent residents. His future clearly lies in the U.S. He and his wife have three 
children born in the U.S. and another on the way. He is a valued and trusted employee. 
The potential for pressure, coercion, exploitation, or duress based upon Applicant’s 
remaining ties to Russia and Ukraine are insufficient to raise a trustworthiness concern.  
 
Overall, the record evidence leaves me without questions or doubts as to 
Applicant’s eligibility and suitability for a public trust position. For all these reasons, I 
conclude Applicant has mitigated the trustworthiness concerns arising from his Foreign 
Preference and Foreign Influence.  
 
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 C:   FOR APPLICANT 
 
  Subparagraphs 1.a-1.c:  For Applicant 
 
Paragraph 2, Guideline B:   FOR APPLICANT 
 
  Subparagraphs 2.a-2.e:  For Applicant 
   
 
 
 
                                                          
8 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 
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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 public trust 
position. Eligibility for access to sensitive information is granted. 
 
 
                                                     
_______________________ 
Edward W. Loughran 
Administrative Judge