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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 07-03760
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: 
Jeff Nagel, Esquire, Department Counsel
For Applicant:
Joseph P. Lisiecki, III, Esquire
Bello & Lisiecki, LLP
January 27, 2009
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Decision
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP), on April 28, 2006 (Government Exhibit 1). On September 18, 2007, the
Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR)
to the Applicant, which detailed security concerns under Guideline B of the Directive
describing why DOHA could not make the preliminary affirmative finding that it is clearly
consistent with the national interest to grant or continue a security clearance for the
Applicant, and recommended referral to an Administrative Judge to determine whether
a clearance should be denied or revoked. The action was taken under Executive Order
10865, Safeguarding 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 guidelines (AG) promulgated by President Bush on December 29,
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2005, and effective within the Department of Defense for SORs issued after September
1, 2006. 
 
Applicant acknowledged receipt of the SOR on October 3, 2007. He answered
the SOR in writing on November 16, 2007, and requested a hearing before an
Administrative Judge. Department Counsel was prepared to proceed on July 17, 2008.
The case was assigned to another Administrative Judge on July 17, 2008.  The case
was transferred to me on August 4, 2008.  DOHA issued a notice of hearing on August
4, 2008, and I convened the hearing as scheduled on August 13, 2008. The
Government offered Government Exhibits 1 and 2, which were received without
objection. Applicant testified on his own behalf and submitted Applicant’s Exhibits A
through N, without objection. DOHA received the transcript of the hearing (Tr.) on
August 20, 2008.  The record closed on August 20, 2008.  Based upon a review of the
case file, pleadings, exhibits, and testimony, eligibility for access to classified
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 Russian Federation (Russia). (Transcript at 8-11.) The
request and the attached documents were not admitted into evidence, but are included
in the record. The facts administratively noticed are set out in the Findings of Fact,
below. 
Findings of Fact
The Applicant is 58, married, and has a Post-Graduate degree.  He is employed
by a defense contractor and seeks a security clearance in connection with his
employment in the defense industry.  In his Answer to the SOR, the Applicant admitted
all of the factual allegations.  He also provided additional information to support his
request for eligibility for a security clearance.  
Paragraph 1 (Guideline B - Foreign Influence)  
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has foreign contacts and interests that could lead to the exercise
of poor judgment, unreliability or untrustworthiness on the part of the Applicant.
The Applicant, who is a native born American citizen, and his immediate family all
live in the United States.  This includes his Russian born wife and her daughter, as well
as his children by a previous marriage to an American citizen.  The Applicant and his
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wife were married January 22, 2004.  His wife and step-daughter emigrated to the
United States on May 17, 2005.  (Applicant’s Exhibit L.)
The Applicant retired from the United States Armed Forces as a field grade
officer.  Beginning in February 1999, his last duty assignment was to a Department of
Defense organization that was involved in negotiations with the Russian government.
This entailed several trips to Russia over the following years.  The Applicant retired from
this position in September 2002.  (Transcript at 33-35, ;Applicant’s Exhibit J.)
Following his retirement, the Applicant was employed by two Defense contractors
to work in Russia in conjunction with the same program.  (Transcript at 36-39, 42-43.)
He worked in Russia for another year and during this period he met his now wife.  She
was employed by one of the Defense contractors as their office manager.  That is how
they met.  (Transcript at 43-46.)  She is currently employed as the administrative
assistant to the president of a company in the United States.  Her annual salary is
approximately $60,000.00 plus equity shares in the company.  (Transcript at 99-100;
Applicant’s Exhibit L at 10.)  The Applicant’s assets in the United States amount to
about $120,000.00.  He receives retirement pay from the military as well as his salary.
(Transcript at 93-95.)
The Applicant’s wife owns her apartment in a small city in Russia.  She is also
half owner with her mother of another apartment in the same city.  The combined value
of this real property is approximately $50,000.00.  However, according to the Applicant,
there are so many bureaucratic hurdles to jump through, including the requirement that
his wife go to Russia to sell the property, that in reality the property is worthless.  The
Applicant’s wife signed powers of attorney allegedly transferring all interest in these two
properties to her mother.  The Applicant acknowledges that the legal validity of these
documents is questionable.  (Applicant’s Exhibits D and E; Transcript at 70-73, 90-93.)
The Applicant’s wife loves living in the United States, wants to be a citizen, and
submitted her application for American citizenship as soon as she was able to do so, in
February 2008.  (Transcript at 57-59, 67-68; Applicant’s Exhibit L.)  The Applicant’s
step-daughter is a legal Permanent Resident of the United States.  She will be eligible
to apply for citizenship in February 2010, and submitted a sworn statement indicating
that she will do so at that time.  (Transcript at 59-61, 68; Applicant’s Exhibit C.)
The Applicant traveled to Russia in 2003, 2004 and 2005.  He was not employed
in the Defense industry at that time.  The trips were made after he had a relationship
established with his now wife, and the trips continued after they were married.  He
would stay in Russia for various periods of time, up to several months, during this
period.  During this time he was also caring for his elderly and ill parents in the United
States.  (Transcript at 43-51.)
While he was in Russia, the Applicant was asked by an organization connected
to the United States Government to assist a small Russian company with translations.
He eventually worked for four small companies in Russia.  He was paid a nominal sum
All of the following statements are supported by the documents submitted by the Department Counsel in1
support of his request for administrative notice.
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for his work, approximately $1,300.00.  He has no further connection with any company
or organization or person in Russia.  (Transcript at 51-55; Applicant’s Exhibit F.) 
None of the Applicant’s direct relatives were members of the Communist Party or
were connected to the Soviet or Russian defense establishment.  His wife and step-
daughter receive no funds of any type from the Russian government. 
The Applicant’s mother-in-law and father-in-law are residents and citizens of
Russia.  His wife talks to her mother by telephone on an occasional basis. (Transcript at
70.)  She has no relationship of any type with her father, who divorced her mother when
the Applicant’s wife was very young.  (Transcript at 69-70.)  Neither of these relatives
are members of the Communist Party or were connected to the Soviet or Russian
defense establishment.
The Applicant has contacts with Russia.  Accordingly, it is appropriate to discuss
the situation in Russia at this time.   I take administrative notice of the following facts.1
Russia is a federation made up of 21 republics. Its government has a poor human rights
record and it is plagued with corruption, media suppression, politically motivated crimes,
and human rights violations. Russia has a significant intelligence capability that it
retained from the Soviet Union. Russia’s intelligence efforts continue to increase in
sophistication, scope, and number. It has an aggressive industrial espionage and
intelligence collection program targeting sensitive and protected U.S. technology.
Russia’s government sells to other countries technology with application for weapons of
mass destruction (nuclear and biotechnology) and missiles. It has provided such
technology and support to China, Venezuela, India, and Iran against U.S. wishes.  In
2008 Russia invaded its neighbor, Georgia, in connection with a long-simmering border
dispute.  Russia also has a continuing rebellion in Chechnya.
Mitigation
The Applicant submitted letters and other documents.  They show that the
Applicant is a highly respected expert in his field, and that he has provided valuable
services to the defense efforts of the United States.  People who have worked with him
in the past, and currently, believe him to be an honest man and recommend him for a
security clearance.  Several of these people also worked with the Applicant’s wife in
Russia.  He is also a leader in two Defense related civilian support organizations,
serving as President for one of them.  (Transcript at 39-42, 63-67; Applicant’s Exhibit I.) 
His officer evaluations show that he was an outstanding officer for his entire
career, successful and well thought of.  (Applicant’s Exhibit J.)
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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 ¶
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.  In addition, the Administrative Judge may also rely on his own
common sense, as well as his knowledge of the law, human nature, and the ways of the
world, in making a reasoned 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.
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 security
decision. 
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.
 
Finally, as emphasized by President Eisenhower in Section 7 of Executive Order
10865, “Any determination under this order . . . shall be a determination in terms of the
national interest and shall in no sense be a determination as to the loyalty of the
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applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information). 
Analysis
It is the Government's responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant's conduct and the
continued holding of a security clearance.  If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation which is sufficient to overcome or outweigh the Government's case.  The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him or her a security clearance.
In this case the Government has met its initial burden of proving by substantial
evidence that the Applicant has family members in Russia (Guideline B)
Paragraph 1 (Guideline B - Foreign Influence) 
The concern under Guideline B is styled as follows:
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.
The Applicant’s entire immediate family lives in the United States.  It is obvious
that the Applicant spent a great deal of time, trouble and money to move his immediate
family here.   His wife and step-daughter, however, have connections to Russia.  As
described above, his wife’s mother and father still live in Russia.  She has no
relationship whatsoever with her father, but she does contact her mother on an
occasional basis and twice sent her money.  That relationship cannot be seen as being
casual.
The evidence is also clear, however, that the Applicant’s wife and step-daughter
have acculturated to the American way of life very quickly.  The wife has submitted her
application to become an American citizen as early as she could.  As stated by the
Applicant, she was investigated by the American embassy in Russia, as well as by
United States Citizenship and Immigration Services before being allowed to emigrate to
the United States.
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Based on the evidence the Government has presented, the following
Disqualifying Conditions apply to this case: 7.(a) 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; (b)
connections to a foreign person . . . 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 . . . by providing that information; and (d)
sharing living quarters with a person or persons, regardless of citizenship status, if that
relationship creates a heightened risk of foreign inducement, manipulation, pressure, or
coercion.  I have also considered the information concerning the Russian government,
provided by Department Counsel in his Administrative Notice documents. 
On the other hand, the Applicant has provided compelling evidence to show that
the following Mitigating Conditions also apply to this particular case, given his
background:  7(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.; (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; and (c) contact or communication with foreign
citizens is so casual and infrequent that there is little likelihood that it could create a risk
for foreign influence or exploitation. 
The evidence shows that the Applicant was a successful and decorated military
officer for 20 years.  Since that time he has put his intelligence and abilities to work for
several Defense contractors, as well as private organizations interested in the defense
of the United States.  He is respected by his friends and colleagues.  His connections to
the United States are deep and long-standing.  The Applicant’s travels to Russia, as
well his consulting with several small firms while there, has no current security
significance.  I have also considered his wife’s financial interest in the two apartments in
Russia, as well as her communications with her mother.  Under the facts of this case,
especially given that the wife has a substantial personal income here, those issues have
little security significance.  
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
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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 commonsense 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 personal beliefs of this
particular Applicant, a retired officer of undoubted ability who has been extremely
forthcoming with the Government, are such as to make him an Applicant of the highest
order.  Based on his actions and testimony, as well as the statements of others, I can
easily find that there is little or no “potential for pressure, coercion, exploitation, or
duress” as set forth in AG ¶ 2(a)(8).  
On balance, it is concluded that the Applicant has successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a finding for the Applicant as to the factual and conclusionary
allegations expressed in Paragraph 1 of the Government's Statement of Reasons.
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 THE APPLICANT
Subparagraphs 1.a through 1.f.: For the Applicant
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 security
clearance.  Eligibility for access to classified information is granted.
                                          
WILFORD H. ROSS
Administrative Judge