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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------------------- )       ADP Case No. 07-03518
SSN: ------------- )
)
Applicant for Public Trust Position )
Appearances
For Government: Daniel F. Crowley, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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ABLARD, Charles D., Administrative Judge:
Applicant submitted his Questionnaires for Public Trust Position (SF 85P), on
November 3, 2004. On March 28, 2008, the Defense Office of Hearings and Appeals
(DOHA) issued a Statement of Reasons (SOR) detailing the trustworthiness concerns
under Guideline B for Applicant. The action was taken under Executive Order 10865,
Safeguarding Classified Information within Industry (February 20, 1990), 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 Jan. 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 acknowledged receipt of the SOR on April 14, 2008. He answered the
SOR in writing on April 30, 2008, and requested a hearing before an Administrative
Judge. DOHA received the request on May 5, 2008. Department Counsel was prepared
to proceed on May 30, 2008. Another judge was assigned the case on June 2, 2008,
but could not proceed with it because of a medical emergency, and requested a
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postponement. I received the case assignment on July 21, 2008. DOHA issued a notice
of hearing on July 24, 2008, and I convened the hearing as scheduled on August 27,
2008. The government offered Exhibits (Ex.) 1 through 3, which were received without
objection. Applicant testified on his own behalf and submitted Exhibits A through C,
which were admitted without objection. DOHA received the transcript of the hearing
(Tr.) on September 4, 2008. Based upon a review of the case file, pleadings, exhibits,
and testimony, eligibility for access to sensitive information is granted.
Procedural and Evidentiary Rulings
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to the Peoples’ Republic of China (PRC). (Tr. 33) The request
and the attached documents were not admitted into evidence but were included in the
record for the purpose offered. The facts administratively noticed are set out below.
Findings of Fact
In his Answer, Applicant denied the allegations in SOR ¶ 1. relating the security
concerns arising from the possibilities of divided loyalties, and admitted the allegations
in SOR ¶¶1.a, and 1.b, concerning three relatives who are citizens of the PRC and his
two trips there in the 1990's with explanations. He also provided additional information
to support his request for eligibility for a public trust position.  
Applicant is a 47-year-old computer scientist who received a master’s degree in
2001 from a leading U.S. university He received an undergraduate degree in electrical
engineering in China before coming to the U.S. in 1987. In China he briefly taught
computer control technology at the university level (Tr. 19). He became a citizen of the
U.S. in 2000. After receiving his advanced degree in 2001, he worked in industry for
eight years as a web developer for three companies. He has worked for his present
employer as an applications developer (Tr. 22) for four years developing tools for
inspection and scoring relating to civilian records (Tr. 46). In this work he does not use
actual records of civilian employees but uses “dummy data” (Tr. 36). His employer is a
sub-contractor to a major defense contractor. He has no access to classified
information.
When Applicant first came to the U.S. he worked as a manager in a Chinese
restaurant for seven years saving his money for education and a family. In 1998 he
married a U.S. citizen of Chinese origin whom he met at the restaurant where she also
worked. They were married in 1997. They have two children who are four and eight. 
Applicant’s mother is a 75-year-old retired doctor. She worked in a government
clinic and lives in China. She visited him once for a month in the U.S. in 2001. His
brother is a citizen of and lives in China where he runs a small private store selling
wood flooring that is owned by an American (Tr. 25). Before taking his present job he
was a public high school teacher. 
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Applicant has one sister who is a citizen of and lives in China in a home for
mentally disabled. His second sister has lived in the U.S. since 1976 and is a U.S.
citizen. Her husband was born in China but is a U.S. citizen. She and Applicant lived
with their father’s family in China in their youth after their parents were divorced. She
came to the U.S. two years before Applicant. His brother and sister in China lived with
their mother’s family in China after the divorce (Tr. 31). The father’s side of the family
has had fewer contacts with his mother’s side of the family since the divorce. He now
has four or five contacts via phone or e-mail with his brother every year, and calls his
mother a few times a year on special holidays or anniversaries (Tr. 29). He has no
contact with his sister in China because of her incapacity. 
In 1992 Applicant traveled to China because of the illness of his father who died
soon after the visit. In 1997 he traveled again to China to introduce his family to his
wife. He has no plans for further travel to China. He regards himself as a loyal citizen of
the U.S. who has settled here and regards it as his country (Tr. 10-11).
Applicant is well regarded by his employer for his skills and dedication to
accomplishing the work he does for the company (Exhs. B and C). He is highly
regarded for his truthfulness, honesty, and loyalty by two colleagues who testified for
him (Tr. 40-58). His supervisor for the past three years also testified for him as to his
character, honesty, and trustworthiness. He rated him 4.7 on a scale of 1-5 for his work
performance (Tr. 57). 
Applicant has all his financial assets in the U.S. and none in China. He owns a
home worth over $250,000, a 401k account worth well over $20,000, a life insurance
policy, and mutual funds. His wife and father-in-law own a small restaurant that his wife
operates (Tr. 73-74). 
I take administrative notice of the following facts relating to the PRC from the
documents offered at the hearing. China has an authoritarian government, dominated
by the Chinese Communist Party. China and the U.S. have been rivals with particular
disagreements over Taiwan, and the civil liberties of Chinese citizens. They also
collaborate on such matters as nuclear issues in North Korea. The U.S. is a primary
intelligence target for China. U.S. citizens of Chinese birth are often intelligence targets
by the PRC. China has a poor record for human rights as exemplified by the
Tiananmen Square incidents in 1989, and other suppressions of dissent by the
government. Some acts of terrorism have occurred on Chinese soil. 
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
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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
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).
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Analysis
Guideline B, Foreign Influence
The trustworthiness concern relating to the guideline for Foreign Influence is set
out in AG & 6:  
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
Conditions under Guideline B that could raise a security concern and may be
disqualifying include 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 (AG ¶ 7a).
Based on the evidence of record, including Applicant’s acknowledgment of family
members living abroad and travel there twice in the 1990's, the Government
established a basis for a security concern over foreign influence. The Applicant had the
burden to establish security suitability through evidence which refutes, mitigates, or
extenuates the disqualification and demonstrates that it is clearly consistent with the
national interest to grant a security clearance. ISCR Case No. 99-0424 (App. Bd. Feb.
8, 2001). 
The guideline also includes examples of conditions that could mitigate
trustworthiness concerns arising from foreign influence. Under AG ¶ 8. Mitigating
conditions (MC) that might be applicable are a determination that the nature of the
relationships with foreign persons, the country in which the persons are located, or the
positions or activities of those persons in that country are such that is unlikely the
individual will be placed in a position of having to choose between the interests of a
foreign individual group or government and the interests of the U.S. (AG ¶ 8a).
Applicant is a person of substance and veracity who is well educated and holds a
responsible position in the defense industry. He provided sincere and credible
testimony concerning his loyalty to the U.S., and his relationships with his family. 
While the PRC is a country of concern to the U.S., the fact that Applicant has
lived in the U.S. for 20 years, been a citizen for eight years, and has all his investments
and immediate family in the U.S. outweigh the concerns raised by his few relatives who
reside in the PRC. There is no heightened risk for him in receiving a trustworthy
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determination. His reputation for loyalty among his associates and supervisor as
indicated at the hearing is further evidence to support mitigation of the security
concerns raised. 
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. The security concerns do not arise
because of any misconduct by Applicant, but solely because three family members live
in China where he was born, and that he took two trips to visit them over ten years ago.
The above cited factors are not precisely relevant to this type of case. Of relevance is
his expressed feelings concerning his identity as an American citizen and where his
loyalty and obligations belong. He is well-motived and well-educated with firm ties to the
U.S. 
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 mitigated the trustworthiness concerns arising from 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 B:  FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
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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.
Charles D. Ablard
Administrative Judge