Item 1.1
1
                                                             
                               DEPARTMENT OF DEFENSE
                DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------, --------- )       ISCR Case No. 07-15508
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Gina L. Marine, Esquire, Department Counsel
For Applicant: Pro Se
______________
Decision
______________
WHITE, David M., Administrative Judge:
Applicant married a U.S. service member and became a naturalized U.S. citizen
during the four and a half years they lived in the U.S. They are now separated, pending
divorce, and she lives and works in Germany, where she retains dual citizenship, holds
an active passport, and votes. All of her immediate family and most of her assets are in
Germany. Based upon a review of the case file, pleadings, and exhibits, eligibility for
access to classified information is denied. 
Applicant submitted her Security Clearance Application (SF 86), on January 20,
2005. On April 3, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant, detailing the security concerns under
Guidelines C and B.  The action was taken under Executive Order 10865, Safeguarding1
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
Item 3.2
The government submitted five items in support of the allegations.3
Item 4 at 1 through 4.4
Item 3 at 2; Item 4 at 6; Item 5 at 7, 8, 10-11, 14.5
Item 3 at 1, 2; Item 4 at 5-6; Item 5 at 4-6, 10.6
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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 an undated, notarized letter, and requested that
her case be decided by an Administrative Judge on the written record without a
hearing.  Department Counsel submitted the Government’s written case on June 24,2
2008. A complete copy of the file of relevant material (FORM)  was provided to3
Applicant, and she was afforded an opportunity to file objections and submit material in
refutation, extenuation, or mitigation. Applicant signed the document acknowledging
receipt of her copy of the FORM on July 8, 2008, and returned it to DOHA. She
provided no further response to the FORM within the 30-day period she was given to do
so, did not request additional time to respond, and made no objection to consideration
of any evidence submitted by Department Counsel. I received the case assignment on
September 15, 2008.
Findings of Fact
Applicant is a 37-year-old employee of a defense contractor. She was born and
raised in Germany. In 1997, she married a U.S. service member who was serving there.
They moved to and lived in the U.S. from July 1998 to March 2003, and she became a
naturalized U.S. citizen in March 2002. In 2003, she and her husband separated,
pending divorce. She moved back to Germany, and obtained her present job in April of
that year, working for the same company that had employed her in the U.S. from
January 2000 through February 2003.4
In her answer to the SOR, Applicant admitted the truth of all the factual
allegations in SOR ¶¶ 1.a through 1.e and 2.a through 2.c. Applicant retained her
German citizenship, and obtained a German passport in 2007 with a 2017 expiration
date to replace her 1997 German passport that expired in 2007. She is not willing to
renounce her German citizenship or to surrender her German passport, and professes
ongoing loyalty to Germany. She regularly voted in German elections both before
moving to the U.S. and since her return.  She has about $260,000 in savings and5
inherited assets in German financial institutions, and about $20,000 in a U.S. savings
account. Her mother, step-father, sister, aunt and niece are all German citizens and
residents, as are the majority of her friends and acquaintances. Neither she nor any of
her family members have ever been affiliated with the German or another foreign
government.  6
Department Counsel incorrectly identified this disqualifying condition as “DC 10(a)(2).” (FORM at 4.) That7
provision actually concerns foreign military service. 
3
Department Counsel neither sought administrative notice nor submitted any
evidence concerning the nature of Germany’s government or its relations with the U.S.
that would indicate any heightened risk of foreign exploitation. Department Counsel’s
reliance on interpretations of Appeal Board precedents that pre-dated the substantial
revision of the Guideline B disqualifying conditions in the current AG is unpersuasive.
Similarly, her assertion that Guideline C security concerns arise under AG ¶ 10(a)(4)  is7
unsupported. This disqualifying condition requires “residence in a foreign country to
meet citizenship requirements,” and does not apply to Applicant who is a German
citizen by birth. Since Applicant elected a determination on the written record, no in-
person evaluation of her character or credibility was possible.
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 to be used 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(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in
the context 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 “Any doubt concerning personnel being considered for access to classified
information will be resolved in favor of the 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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides: “Any determination under this order adverse to an
applicant 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.” 
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A person applying for access to classified information seeks to enter 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.
Analysis
Guideline C, Foreign Preference
Under AG ¶ 9 security concerns involving foreign preference arise because,
“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.”
AG ¶ 10 describes conditions that could raise a security concern and may be
disqualifying:
(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;
(2) military service or a willingness to bear arms for a foreign country;
(3) accepting educational, medical, retirement, social welfare, or other
such benefits from a foreign country;
(4) residence in a foreign country to meet citizenship requirements;
(5) using foreign citizenship to protect financial. or business interests in
another country;
(6) seeking or holding political office in a foreign country; and,
(7) voting in a foreign election;
(b) action to acquire or obtain recognition of a foreign citizenship by an
American citizen;
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(c) performing or attempting to perform duties, or otherwise acting, so as
to serve the interests of a foreign person, group, organization, or
government in conflict with the national security interest; and,
(d) any statement or action that shows allegiance to a country other than
the United States: for example, declaration of intent to renounce United
States citizenship; renunciation of United States citizenship.
Applicant’s actions in obtaining and maintaining her currently valid German
passport in 2007 raise security concerns under ¶¶ 10(a)(1) and 10(b) above. She was
born a German citizen, but became a U.S. citizen in 2002. Obtaining the German
passport in 2007 was an action to obtain recognition of her continuing German
citizenship by the German government. She intends to continue possession and use of
her German passport. Her past and intended future voting in German elections raises
potential concerns under AG ¶ 10(a)(7) as well. Finally, her declaration of ongoing
loyalty to Germany, refusal to renounce dual citizenship, and resumption of residence
and employment there after separation from her U.S. citizen husband all show ongoing
allegiance to Germany, as contemplated under AG ¶ 10(d). 
AG ¶ 11 provides conditions that could mitigate these security concerns:
(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.
(e) the passport has been destroyed, surrendered to the cognizant
security authority, or otherwise invalidated; and,
(f) the vote in a foreign election was encouraged by the United States
Government.
Applicant neither asserted nor provided any evidence to support application of any of
these potentially mitigating conditions. While she apparently wants to maintain her U.S.
citizenship as well, she resumed residence, employment, and the full exercise of the
rights, privileges and obligations of her German citizenship upon separation from her
American husband in 2003. She is unwilling to surrender or invalidate her German
passport and her family, friends, and financial assets are predominantly in Germany.
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Guideline B, Foreign Influence
AG ¶ 6 expresses the security concern regarding foreign influence:
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.
AG ¶ 7 describes conditions that could raise a security concern and may be
disqualifying. Department Counsel argued that the evidence in this case established two
of them: ¶ 7(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;” and ¶ 7(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.” There is no evidence on which
to base any conclusion that the German government would attempt to exploit or coerce
Applicant to disclose protected information based on her family or property there. Other
than their mere presence in Germany, nothing about Applicant’s contacts with her family
and friends suggests any heightened risk of foreign exploitation, inducement,
manipulation, pressure or coercion. AG ¶ 7(a) is not supported by the record. However,
Applicant’s residence, together with that of her close family members and substantial
property in Germany create a potential conflict of interest between her obligation to
protect sensitive information and desire to help her native country. Should she obtain
sensitive U.S. information that she felt would be of value to the German government,
her substantial ties there would generate such a conflict.  Thus, legitimate security
concerns are raised under AG ¶ 7(b).    
AG ¶ 8 provides conditions that could mitigate security concerns. Those with
potential application in this case are:
(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
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(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.
Applicant’s relationships with her family in Germany are close and important to
her, and she has substantial financial investments there. None of her family members
have any government connection, or are in any position to benefit from her compromise
of protected information. Particularly since Germany is a close ally with no record of
targeting U.S. citizens for protected information, it not very likely that Applicant would be
put in a position of having to choose between any foreign interests and those of the U.S.
However, should such potential conflict of interest arise, her relative ties to Germany
and the U.S. are such that she could not necessarily be expected to resolve it in favor of
the U.S. interest.  This establishes some mitigation under AG ¶ 8(a), but not under AG ¶
8(b). 
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) the 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 the whole person concept.       
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant is a mature individual who
is responsible for her choices and conduct. After a relatively brief period of residence in
the U.S., accompanying her new husband due to military reassignment, she separated
from him and returned to live and work in Germany where her family and most of her
friends reside. She intends to retain and exercise her rights, privileges and
responsibilities as a German citizen, and professes her continuing loyalty to her native
country. None of this is either improper or unusual. However, it establishes legitimate
foreign preference and foreign influence security concerns that she carries the burden
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of proof to rebut or mitigate. She offered no other evidence about her character or
responsibility to mitigate these concerns, or tending to make their continuation less
likely. 
Overall, the record evidence creates substantial doubt as to Applicant’s present
eligibility and suitability for a security clearance. For all these reasons, I conclude
Applicant has not mitigated the security concerns arising from her 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: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
Paragraph 2, Guideline B: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance.  Eligibility for access to classified information is denied.
                                              
DAVID M. WHITE
Administrative Judge