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  DEPARTMENT OF DEFENSE
       DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 08-04347
SSN:------------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Paul M. Delaney Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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ABLARD, Charles D., Administrative Judge:
Applicant failed to mitigate security concerns regarding Foreign Preference
(Guideline C) because he holds a valid United Kingdom (U.K.) passport, and became a
U.K. citizen in 2005. Clearance is denied.
Statement of the Case
On October 23, 2007, Applicant submitted an Electronic Questionnaire For
Investigations Processing (e-QIP) also known as Security Clearance Application (SF
86). On August 13, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to him, pursuant to Executive Order 10865, Safeguarding
Classified Information Within Industry, dated February 20, 1960, as amended and
modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel
Security Clearance Review Program (Directive), dated January 2, 1992, as amended,
modified and revised. The SOR alleges security concerns under Guideline C.
The SOR detailed reasons why DOHA could not make the preliminary affirmative
finding under the Directive that it is clearly consistent with the national interest to grant
or continue a security clearance for him, and recommended referral to an administrative
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judge to determine whether a clearance should be granted, continued, denied, or
revoked.
Applicant responded to the SOR allegations in a sworn statement signed on
August 28, 2008, and elected to have his case decided on the written record in lieu of a
hearing. Documents were attached to the answer with explanatory information. A
complete copy of the file of relevant material (FORM), dated October 3, 2008, was
provided to him, and he was afforded an opportunity to file objections and submit
material in refutation, extenuation, or mitigation. Applicant provided no additional
material. The case was assigned to me on December 12, 2008.
Findings of Fact
Applicant admitted all of the factual allegations of the SOR in his answer but
denied the general allegation that he has a preference for another country than the U.S.
After a complete and thorough review of the evidence of record, I make the following
findings of fact:
Applicant is a 41-year-old project engineer who was born in the U.S. He holds an
MBA from a major U.S. business school. Since May 2005, he has worked for a U.S.
defense construction contractor. He lives in the United Kingdom (U.K.) where he has
worked since 1999. His first employment was as a strategy director for company in the
U.K. until 2002. He then worked in the U.K. and Spain for a major international oil
company until he was made redundant in 2005. He became a citizen of the U.K. in
2005. He has an active U.K. passport that was issued in February 2005. His present
work requires that he travel frequently to other countries in Europe.
Applicant is married to a U.S. citizen and has three children all of whom were
born in either the U.K. or Spain. They all hold dual citizenship with the U.S. and U.K.
according to information supplied on his SF 86. He has a foreign bank account with
some funds on deposit in the account. 
Applicant declines to surrender his U.K. passport since he finds it is helpful in his
travels in Europe for his employer.
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. According to AG ¶
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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
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.
In the decision-making process, the Government has the initial burden of
establishing controverted facts alleged in the SOR by “substantial evidence,”
demonstrating, in accordance with the Directive, that it is not clearly consistent with the
national interest to grant or continue an applicant’s access to classified information.
Once the Government has produced substantial evidence of a disqualifying condition,
the burden shifts to Applicant to produce evidence “to rebut, explain, extenuate, or
mitigate facts admitted by applicant or proven by Department Counsel, and [applicant]
has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”
Directive ¶ E3.1.15. The burden of disproving a mitigating condition never shifts to the
Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).
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 Executive Order 12968 (Aug. 2, 1995), Section 3.
Analysis
Upon consideration of all the facts in evidence, and after application of all
appropriate legal precepts, factors, and conditions, including those described briefly
above, I conclude that the following Adjudicative Guidelines provide the standard for
resolution of the allegations set forth in the SOR. 
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Guideline C Foreign Preference
Upon consideration of all the facts in evidence, and after application of all
appropriate legal precepts, factors and conditions above, I conclude the following with
respect to all allegations set forth in the SOR: 
The security concern relating to the guideline for Foreign Preference is set out in
AG ¶ 9: 
“[W]hen 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;
(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.
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The fact that Applicant holds a foreign passport and is a dual citizen has raised
security concerns under Sec. a. 3. of the guideline.
AG ¶ 11 provides conditions that could mitigate 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.
Since Applicant declines in his answer to surrender his U.K. passport, I
conclude that the security concerns arising from dual citizenship and holding a foreign
passport have not been mitigated by application of any of the above mitigating
conditions. 
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. 
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Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a
security clearance must be an overall commonsense judgment based upon careful
consideration of the guidelines and the whole person concept.
After weighing the disqualifying and mitigating conditions, and all the facts and
circumstances, in the context of the whole person, I conclude he has not mitigated the
security concerns pertaining to foreign preference allegations. While there is no reason
other than the dual citizenship and passport issue to question Applicant’s ability to hold
a security clearance, his refusal to surrender the foreign passport precludes a finding
in his favor. 
I take this position based on the law, as set forth in Department of Navy v.
Egan, 484 U.S. 518 (1988), a careful consideration of the whole person factors and
supporting evidence, application of the pertinent factors under the adjudicative
process, and interpretation of my responsibilities under the guidelines. Applicant has
not mitigated or overcome the government’s case. For the reasons stated, I conclude
he is not eligible for access to classified information.
Formal Findings
Formal findings 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 
Conclusion
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue eligibility for a security
clearance for Applicant. Clearance is denied.
Charles D. Ablard
Administrative Judge