KEYWORD: Guideline B
DIGEST: Department Counsel persuasively argues that the Judge erred in concluding that the
government had failed to present substantial evidence of a security concern under Guideline B. 
In the meantime Russia has attacked Georgia.  The Judge’s remand decision must have a current
and accurate geopolitical assessment and security/intelligence profile of Russia.  Favorable
decision remanded.
CASENO: 07-14508.a1
DATE: 10/22/2008
DATE: October 22, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-14508
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Candace L. Le’i, Esq., Department Counsel
FOR APPLICANT
Pro Se
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 10, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On June 30, 2008, after the hearing, Administrative Judge John Grattan Metz,
Jr. granted Applicant’s request for a security clearance.  Department Counsel filed a timely appeal
pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raises the following issues on appeal: whether the Judge improperly
shifted the burden of persuasion to the government; whether the Judge erred by concluding that the
government had presented no evidence of heightened risk under Guideline B; whether the Judge
erred in concluding that the government had failed to meet its burden of production under Guideline
B; and whether the Judge’s application of the pertinent mitigating conditions was error.  For the
reasons set forth below, we remand the case to the Judge.  
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following pertinent findings of fact: Applicant was raised and educated
in the U.S.S.R., receiving a degree in computer science.  She married a U.S.S.R. citizen, with whom
she had a daughter, and divorced him four years later.  While living in the U.S.S.R. she worked for
government-controlled companies.  She immigrated to the U.S. in the early 1990s, along with her
daughter.  She renounced her U.S.S.R. citizenship, surrendered her property interests to the
government, and paid the government six months salary.  In the mid-1990s she became a U.S.
citizen.  
Applicant married a retired officer of the U.S. Army.  Her new husband adopted her daughter.
She subsequently divorced this second husband.  Applicant has obtained a Master’s Degree from a
U.S. university and works for a federal contractor.  Her job requires her to travel extensively.  
Applicant’s brother is a citizen and resident of Russia.  He is retired from the military.  She
contacts him once a year.  Both of Applicant’s parents are dead.  Her first ex-husband is a citizen and
resident of Russia.  She contacts him as often as six times a year to keep him apprised of his
daughter, with whom he has no contact.  Applicant contacts her former mother-in-law, a citizen and
resident of Russia, about four times a year, and she contacts two friends, both of whom are citizens
and residents of Russia, about four times a year.  She has traveled several times to Russia, most
recently to pay respects to her father’s grave.  
Russia has been a target of terrorist activity in recent years.  Russian federal forces, in pursing
terrorists, engage in torture, summary executions, disappearances, and arbitrary detentions.  Russia
has an active, significant, recent, and ongoing intelligence collection program.  As of 2005 Russia
was one of the two most aggressive collectors of sensitive and protected U.S. technology and
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accounted for much of such targeting.  Russia is not known to target U.S. citizens to obtain protected
information.  
B.  Discussion
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the same record.”
Directive  ¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”  Consolo v. Federal Maritime
Comm’n, 383 U.S. 607, 620 (1966).  In evaluating the Judge’s findings, we are required to give
deference to the Judge’s credibility determinations.  Directive ¶ E3.1.32.1. 
Department Counsel has not challenged the Judges findings.  However, consideration of the
assigned errors requires the Board to address the sufficiency of the Judge’s findings about the
geopolitical situation in Russia.  
Whether the Record Supports the Judge’s Ultimate Conclusions
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “The
general standard is that a clearance may be granted only when ‘clearly consistent with the interests
of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presentsth
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors does not turn simply on a finding that one or more of them apply to the
particular facts of a case.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
The Judge concluded that the government had failed to present substantial evidence of a
security concern under Guideline B.  “Applicant’s foreign travel to Russia has no independent
security significance.  Her contacts with her ex-husband, former mother-in-law, and two
friends–none of whom is connected to the Russian government–are minimal.  Her contacts with her
brother–now still tenuously connected to the government through his retirement–is virtually non-
See Directive ¶ E2.7(a): “contact with a foreign family member . . . or other person who is a citizen of or1
resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation,
pressure, or coercion[.]” Directive ¶ E2.7(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[.]”
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existent.  Department Counsel has articulated no sensible reason I should consider either as a
potential source of influence on Applicant.”  Decision at 5.  Department Counsel argues that the
Judge erred in his analysis, in that he examined the government’s evidence in a piecemeal fashion
rather than as a whole.  Department Counsel contends that the presence in Russia of a close relative
such as a brother; regular and frequent contact with her former in-laws and her friends; her regular
visits to Russia; and Russia’s status a nation with a problematic human rights record that actively
seeks U.S. intelligence, viewed as a whole, are sufficient to raise a Foreign Influence security
concern.   The Board finds Department Counsel’s argument persuasive.  1
The Board also notes certain events which have occurred since the close of the record and
which have a bearing on this case.  In August 2008 Russia attacked Georgia.  See President’s
“Remarks on the Situation in Georgia,” August 18, 2008:  “It now appears that an effort may be
underway to depose Georgia’s duly elected Government.  Russia has invaded a sovereign
neighboring state and threatens a democratic government elected by its people.”   See also Joint
Statement on Georgia by Foreign Ministers of Canada, France, Germany, Italy, Japan, the United
States and the United Kingdom, Department of State Media Note, August 27, 2008: “Russia’s
recognition of the independence of South Ossetia and Abkhazai violates the territorial integrity and
sovereignty of Georgia and is contrary to U.N. Security Council Resolutions supported by Russia.
Russia’s decision has called into question its commitment to peace and security in the Caucasus.”
For a discussion of official notice in DOHA proceedings, see ISCR Case No. 05-11292 at 2-4 (App.
Bd. Apr. 12, 2007).   
A current and accurate assessment of the “geopolitical situation” and the
“security/intelligence profile of the country vis-a-vis the United states” is crucial in Guideline B
cases.  See ADP Case No. 06-14978 at 3 (App. Bd. Oct. 11, 2007); ISCR Case No. 04-02630 at 2-3
(App. Bd. May 23, 2007).  In this case, Applicant has regular contact with citizens of a country that
has engaged in armed conflict with a democracy friendly with the U.S.  See U.S. Department of State
Background Note: Georgia, February 2008.  This is a matter bearing on the Guideline B security
concern, which requires consideration of the nature of the foreign country.  The Board concludes that
the best course of action is to remand the case to the Judge with instruction that he reopen the record,
allow the parties an opportunity to proffer appropriate documents for official notice pertinent to the
current geopolitical situation in Russia, or other relevant and material evidence, and allow the parties
to reargue the case.  The other issues in the case are not ripe for consideration at this time.
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Order
The Judge’s favorable security clearance decision is REMANDED.     
Signed: Michael Y. Ra’anan           
 Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: William S. Fields              
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody               
James E. Moody
Administrative Judge
Member, Appeal Board