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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------------- )       ISCR Case No. 07-16726
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Gregg Cervi, Esquire, Department Counsel
   Paul DeLaney, Esquire, Department Counsel
For Applicant: Pro Se
                                                                            
______________
Decision
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MARSHALL, Jr., Arthur E., Administrative Judge:
Applicant completed a Standard Form 86 Security Clearance Application (SF-
86), dated October 5, 2004. On November 29, 2007, the Defense Office of Hearings
and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns
under Guideline C (Foreign Preference). The action was taken under Executive Order
10865, Safeguarding Classified Information within Industry (February 20, 1960), as
amended, and 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. 
In a response dated February 8, 2008, Applicant, who resides and works
primarily in Europe, answered the SOR allegations by admitting all four allegations
raised. She also presented information to be considered in mitigation. The case was
ultimately assigned to me on May 27, 2008. Because of her travel schedule, Applicant
  Tr. 8-9.    1
2
initially requested that the hearing not be held in June 2008. That request was granted.
A subsequent request for another extension was denied and a video-teleconference
hearing was set on June 25, 2008, for July 10, 2008. At Applicant’s request, an
amended notice of hearing was issued on June 27, 2008, moving the hearing by video-
teleconference to July 2, 2008, in a neighboring European country. In requesting this
change, Applicant waived the 15-day notice requirement.1
The hearing took place as scheduled. Department Counsel submitted three
exhibits (Ex.), accepted into the record as Exs. 1-3 without objection. Applicant
submitted six exhibits, accepted as Exs. A-F without objection. No witnesses were
called. Applicant was given ten (10) days to submit any additional documents. The
transcript (Tr.) was received on July 14, 2008. On July 7, 2008, Government Counsel
submitted a written response to my order for additional information concerning the
significance of a U.S. citizen’s registration in a foreign country under a European
passport. On July 10, 2008, a document dated July 9, 2008, was emailed and accepted
into the record as Ex. G without objection. Department Counsel submitted a timely
rebuttal on July 16, 2008. The record was closed on July 18, 2008. Based upon a
review of the case file, exhibits, and testimony, security clearance is denied.
Administrative Notice
The Government submitted materials regarding the registration of American and
European citizens in Austria and in Poland. I requested such information to supplement
the record and assist in my evaluation of SOR allegation 1.b (You are currently
registered in Poland and Austria under your German passport). The proffered materials
included foreign documents explaining the foreign national registration procedures in
those countries. I accept the five documents as Exs. 4-8 and grant the Government’s
motion to take Administrative Notice of them. 
Findings of Fact
Applicant is a 63-year-old manager who has worked for the same defense
contractor for approximately 26 years. During that time, she has held numerous
positions within the U.S. Government, including the military. In 1977, she became a
U.S. naturalized citizen based on her 1974 marriage to an American military officer. She
also received a U.S. passport in 1977, which she has since maintained and which is
currently valid through 2018. During their marriage, they often went back and forth
between the US. and Europe. The couple ultimately divorced in 1992. Applicant
continued in her work abroad, although it was restricted to German assignments. Most
of her travel was between Germany and the U.S. 
In 1995, however, Applicant sought and obtained a German passport, based on
her status as a German citizen. She obtained the German passport “for the
  Tr. 31.    2
  Tr. 32.    3
  Tr. 33-35.    4
  Tr. 34.    5
  Tr. 75.    6
  Tr. 49, 45.    7
  Tr. 35-36.    8
  Tr. 55.    9
  Tr. 38.    10
  Tr. 46-49.    11
  Tr. 38.    12
  Tr. 42.    13
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convenience and for the facilitation of” her foreign work travel.  After it was received,2
however, she was given assignments in Central and Eastern Europe.  Her German3
passport was renewed in 2004 and is valid through 2014. By virtue of her German
passport, she can take advantage of the open European borders created by the
Schengen Agreements and the expedited European Union (E.U.) passport lines.  She4
acknowledges that she can visit the same countries with her U.S. passport, but states:
“it’s just much easier” with the German passport.  “I have a very heavy workload and I5
am traveling all the time and sometimes I don’t know where I was last week and
everything that makes it easier for me would be certainly appreciated. . . .”  Getting6
Visas is often easier as a German with a German passport. She is registered in Austria
and Poland under her German passport.  7
Applicant does not vote in Germany, nor does she own property there. She
receives no benefits from Germany, except for the passport. She concedes she may be
eligible for some form of Social Security-like retirement for some employment held as a
student and shortly before she moved to the U.S., but is not sure if under three years of
employment would qualify her for any Government payments.  Other than business8
trips or visits to her parents, she has no ties other ties to Germany except a small
savings account with a few hundred Euros.  The majority of her life is spent on the road9
between business trips to various European cities. “[I]t’s kind of a unique situation and
may be hard for somebody from the outside to understand, but my job requires
traveling all the time.”  Her travel is extensive and almost constant.  Although she10 11
owns an apartment in Austria, she is only there about every third weekend or on
stopovers between trips.  She is not an Austrian citizen, only a resident.12 13
  Ex. B (Letter of July 2, 2008); see also .Ex. G (Letter of July 9, 2008).    14
  Tr. 77-78.    15
  Ex. G (Letter of July 9, 2008). The undersigned lacks the authority to grant waivers or exceptions to DoD    16
policy.
 Id.    17
  Id.    18
  I take administrative notice of the solid relationship between the U.S. and Germany, and find Applicant    19
is both loyal to the U.S. and a diligent employee. 
4
During the hearing, Applicant expressed her intent to maintain her dual-
citizenship with Germany and to continue using her German passport to facilitate her
work travel within Europe. She also cited to European legal advice concerning her use
of a German passport to facilitate her work permit in Poland.  Acknowledging14
Applicant’s heavy work travel, she was encouraged to discuss her continued use of a
foreign passport in view of these proceedings with corporate counsel or her security
officer while the record was kept open for an additional 10 days.  Before the record15
was closed, Applicant submitted a letter in which she requested I “consider an
exception to the DoD policy” concerning her use of a German passport.  She stressed16
“I believe it remains without debate that the use of a European passport during my
frequent travels . . . significantly facilitates the [extensive] traveling. . . . Changing my
passport now would require redoing my existing registrations. Also the ownership of my
apartment [in Austria] is based on my German passport.”  She concludes by stating:17
“At this time, I cannot fully evaluate the complexity of changing this and the problems
that could arise from switching all these registration to a US passport.”  The remainder18
of the document stresses the good relations between Germany, her loyalty to the U.S.,
her integrity, and her many years of work in the defense industry.  19
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. Under AG ¶ 2(c), this 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.
  See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).    20
  Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).    21
  ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).    22
  Id.    23
  Id.    24
  Executive Order 10865 § 7.    25
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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.
The Government must present evidence to establish controverted facts alleged
in the SOR. An 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 burden of proof is something less than a20
preponderance of evidence.  The ultimate burden of persuasion is on the applicant.  21 22
 
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.
 
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). “The clearly consistent standard
indicates that security clearance determinations should err, if they must, on the side of
denials.”  Any reasonable doubt about whether an applicant should be allowed access23
to sensitive information must be resolved in favor of protecting such sensitive
information.   The decision to deny an individual a security clearance is not necessarily24
a determination as to the loyalty of an applicant.  It is merely an indication that the25
applicant has not met the strict guidelines the President and the Secretary of Defense
have established for issuing a clearance.
  AG ¶ 9.    26
  AG ¶ 10(a).     27
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Analysis
Based upon consideration of the evidence, I find the following AG C — Foreign
Preference to be the most pertinent to the evaluation of the facts in this case:
Conditions pertaining to this adjudicative guideline that could raise a security concern
and may be disqualifying, as well as those which would mitigate security concerns, are
set forth and discussed in the appropriate sections below.
The concern regarding foreign preference is that when an individual acts in such
a way as to indicate a preference for a foreign country over the U.S., then she may be
prone to provide information or make decisions that are harmful to the interests of the
U.S.  Conditions that could raise a security concern and may be disqualifying include26
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.  At the time the SOR was27
issued, Applicant possessed a valid, current German passport, which she obtained or
renewed after becoming a U.S. citizen and which she has continued to use to facilitate
travel within Europe. This current and continued use is sufficient to give rise to Foreign
Preference Disqualifying Condition (FP DC) AG ¶ 10(a)(1) (possession of a current
foreign passport). Similarly, her use of that passport to identify herself as a German
citizen in obtaining Visas, apartment ownership, work permits and registrations while
entrusted with a U.S. security clearance gives rise to FP DC AG ¶ 10(b) (action to
acquire or obtain recognition of a foreign citizenship by an American citizen). With such
disqualifying conditions raised, the burden shifts to Applicant to explain or mitigate the
security concerns raised under this guideline.
Applicant is correct that her dual citizenship with Germany, an important U.S.
ally, is based on her birth in that country. That fact initially raises Foreign Preference
Mitigating Condition (FP MC) AG ¶ 11(a) (dual citizenship is based solely on parents’
citizenship or birth in a foreign country). Here, however, her dual citizenship goes
beyond her place of birth and extends to her retention and use of a German passport.
Moreover, Applicant has not expressed a willingness to renounce her dual citizenship.
Although such renunciation is not required, this fact makes FP MC AG ¶ 11(b) (the
individual has expressed a willingness to renounce dual citizenship) inapplicable. 
Applicant has reconstructed her professional life in Europe based on her
German citizenship to the extent she has purchased a home base abroad, received
foreign work permits, obtained Visas, and traveled as a citizen of a E.U country. The
reason for these representations was purely a matter of expeditiousness and ease,
based primarily on foreign legal advice as to which passport would best facilitate
various foreign processes without due consideration of the requirements expected of
those entrusted with protected U.S. information. Given the opportunity to consult
counsel and reconsider her continued active use of a foreign passport, Applicant chose
to continue predicating her various foreign credentials on her German passport rather
 See, e.g., ISCR Case Number 06-25201 (App. Bd. Oct. 31, 2007).    28
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than transfer those credentials to her U.S. passport. The reason cited was
convenience. Although the possession of a U.S. security clearance does not preclude
dual-citizenship or the existence of a foreign passport, per se, the representation that
one is a foreign national and the active use of a foreign passport in lieu of a U.S.
passport poses genuine security concerns. Because she continues to actively use her
German passport in such manner in lieu of her U.S. passport, FP MC ¶ 11(e) (the
passport has been destroyed, surrendered to the cognizant security authority, or
otherwise invalidated) does not apply.28
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 common sense judgment based upon
careful consideration of the guidelines and this “whole person” concept. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the “whole person”
factors noted above. Applicant is a highly credible, straight-forward, and pleasant
woman who is obviously devoted to her work and her profession. She is a mature
woman literally devoting her life to her job and finding fulfillment in her
accomplishments. Her loyalty to this country is neither under attack nor an issue.
Because she is so diligent with her work, she has created a chaotic travel schedule
which understandably makes her want to cut corners or make life easier where she can.
Consequently, when told by foreign counsel some aspects of working abroad would be
more easily facilitated by using her German passport, she took the advice without
consideration of the guidelines pertaining to security clearances. Moreover, she
continues to use her E.U. passport to facilitate travel within Europe.
U.S. citizenship does not preclude such exercise of dual citizenship, per se.
Possession of a U.S. security clearance, however, requires more than U.S. citizenship
and loyalty. With it comes numerous other obligations and standards of conduct above
that expected from an average citizen, the majority of which involve matters of
judgment, reliability, and trustworthiness. While there is nothing about Applicant to
suspect she would be disloyal to the U.S. or its interests, possession of a security
 “The negative security significance of acts indicative of a foreign preference is not negated or diminished    29
merely because an applicant engages in those acts for personal reasons or for personal convenience. See,
e.g., ISCR Case No. 99-0295 (Oct. 20, 2000) at p. 4; ISCR Case No. 98-0252 (Sept. 15, 1999) at p. 8.” ISCR
Case No. 99-0424 (App. Bd. Feb. 8, 2001).
  ISCR Case No. 01-26893 (App. Bd. Oct. 16, 2002), at 8.    30
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clearance requires an unequivocal and demonstrable preference for the U.S. which
Applicant’s current work and travel practices do not reflect. Applicant, herself,
acknowledges that she chose to predicate her apartment ownership, registrations, and
other matters on her German passport in lieu of her U.S. passport. She also admits that
even now her German passport can be substituted with her U.S. passport in all its
current applications, but she declines to make those changes as a matter of
inconvenience. That is her choice. Convenience, however, is not a mitigating factor
under the guideline.  Consequently, foreign preference security concerns are not29
mitigated. 
I considered all the facts of record and the “whole person” concept. I further note
that although there is no basis in the record to question Applicant’s character or
integrity, the DOHA Appeal Board has determined that even good people can pose
security risks.  Based on these facts, I conclude it is not clearly consistent with national30
security to grant Applicant a security clearance. Clearance is denied. 
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: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
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. Clearance is denied.
__________________________
ARTHUR E. MARSHALL, JR.
Administrative Judge