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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of:    )
   )
      ADP Case No. 08-03884
SSN:    )
   )
Applicant for Public Trust Position    )
Appearances
For Government: Jennifer Goldstein, Esquire, Department Counsel
For Applicant: Pro Se
                                                                            
July 24, 2009
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Decision
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CEFOLA, Richard A., Administrative Judge:
On April 9, 1993, the Composite Health Care Systems Program Office
(CHCSPO), the Defense Office of Hearings and Appeals (DOHA), and the Assistant
Secretary of Defense for Command, Control, Communications and Intelligence (ASD
C31) entered into a memorandum of agreement for DOHA to provide trustworthiness
determinations for contractor personnel employed in Information Systems Positions as
defined in DoD Regulation 5200.2-R, Personnel Security Program (Regulation), dated
January of 1987.
Applicant submitted her Questionnaires for Public Trust Position (SF 85P), on
July 30, 2007.  On March 2, 2009, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the trustworthiness concerns under
Guidelines B and C regarding Applicant.  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);
Department of Defense (DoD) Regulation 5200.2-R, Personnel Security Program, dated
Jan. 1987, as amended (Regulation), and the revised adjudicative guidelines (AG)
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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 March 9, 2009.  She answered
the SOR in writing on March 19, 2009, and requested a hearing before an
Administrative Judge.  DOHA received the request on April 13, 2009.  I received the
case assignment on May 4, 2009.  DOHA issued a notice of hearing on May 6, 2009,
and I convened the hearing as scheduled on May 28, 2009.  The Government offered
Exhibits (GXs) 1 through 3, which were received without objection.  Applicant testified
on her own behalf and submitted Applicant’s Exhibit (AppX) A, which was received
without objection.  DOHA received the transcript of the hearing (TR) on June 2, 2009.  I
granted Applicant’s request to keep the record open until June 11, 2009, to submit
additional matters.  On or about June 8, 2009, she submitted Exhibit B, which was
received without objection.  The record closed on June 11, 2009.  Based upon a review
of the case file, pleadings, exhibits, and testimony, eligibility for access to sensitive
information is granted.
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to Russia.  The request was granted.  The request, and the
attached documents, were not admitted into evidence but were included in the record.
The facts administratively noticed are set out in the Findings of Fact, below.
Findings of Fact
In her Answer to the SOR, dated March 19, 2009, Applicant admitted all of the
factual allegations.  She also provided additional information to support her request for
eligibility for a public trust position.
The Applicant was born in Russia, but “left at age 32, in 1998" (TR at page 24
lines 10~17).  She came to the U.S. on a fiancee visa (TR at page 24 line 18 to page 28
line 5).  She has since divorced her American spouse; but has two children, one from a
previous marriage, born in Russia, and the other born in the U.S. (Id).  She attended
college in the U.S., and was naturalized in November of 2006 (TR at page 25 line 1 to
page 26 line 20).
The Applicant owns a condo in the U.S. worth about $375,000 (TR at page 48
line 5 to page 49 line 11, and AppX B at Encl 5).  Her net worth in the U.S. is about
$100,000 (Id).  She has no assets in Russia, and stands to inherit nothing in Russia
(TR at page 49 lines 3~11).
She summarizes her feelings about the U.S. in the following terms:
Your Honor, my country is [the] United States.  I have everything
here -- my life, my children.  My daughter is get[ting] an education here.
We don’t have nothing(sic) in Russia.  And my son even doesn’t know
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[the] Russian language at all.  So I have all my life, all my financial interest
in this country, and I don’t have anything to do with Russia anymore (TR
at page 51 lines 8~14).
Guideline B - Foreign Influence
1.a., 1.d. and 2.b. The Applicant’s parents are citizens and residents of Russia
(GX 1 at pages 4~5).  Her 69 year old mother is retired from the railroad, from which
she receives a small government pension (TR at page 33 line 11 to page 35 line 22).
Her mother never worked for the Russian/Soviet military, and she was never a member
of the Communist Party (Id).  The Applicant’s 70 year old father is also retired from the
railroad, with a small government pension (TR at page 35 line 23 to page 38 line 9).  He
served two years in the Soviet Army, about 50 years ago, but was never a member of
the Communist Party (Id).  The Applicant speaks to her parents about two to three
times a month (TR at page 35 lines 2~7).
The Appellant visited her parents in Russia in 2003, 2005 and, most recently, in
2008, in order for her children to see their grandparents (TR at page 43 line 16 to page
45 line 24, and at page 47 line 3 to page 48 line 4).  Each time she used her Russian
passport to enter and exit Russia (Id).
1.d.  The Applicant’s brother is also a citizen of and resides in Russia (TR at
page 38 line 10 to page 40 line 15).  He is 37 years of age, and owns a small business
(Id).  He served a year and a half in the Russian Army, but was never a member of the
Communist Party (TR at page 38 line 10 to page 40 line 15).  The Applicant has contact
with her brother about once every two months (TR at page 39 lines 7~9).
1.e.  The Applicant has a 32 year old girl friend who is a citizen of and resides in
Russia (TR at page 40 line 16 to page 43 line 15).  She works in a private bank, and
was never a member of the Communist Party (Id).  The Applicant contacts her girl
friend about three to four times a year (TR at page 40 lines 16~21).
The Applicant is not subject to coercion vis-a-vis her Russian relatives or her
Russian girl friend (TR at page 50 lines 8~24).  None of Applicant’s Russian relatives or
her girl friend know that she has applied for a position of public trust.
Guideline C - Foreign Preference
2.a. and 2.b.  The Applicant was re-issued a Russian passport in July of 2005
(TR at page 28 line 6 to page 29 line 12).  As she was not a naturalized U.S. citizen
until November of 2006, she had to use her Russian passport to enter and exit Russia
in 2003 and 2005 (Id).  Although she used her Russian passport to enter and exit
Russia in 2008, she does not consider herself to be a Russian citizen anymore; and as
such, is willing to renounce her Russian citizenship (TR at page 33 lines 3~10).  As
evidence of her stated intention, she has destroyed her Russian passport (AppX B at
Encl 2).  A photo copy of her destroyed Russian passport has been admitted into the
record (Id).
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I take administrative notice of the following facts: Russia is a federation
composed of 21 republics.  The Government consists of a strong president, a prime
minister, a bicameral legislature, and a weak judiciary.  Recently, tensions between the
U.S. and Russia have escalated when Russia sent its army across as internationally
recognized boundary, to attempt to change by force the borders of Georgia, a country
with a democratically elected government.  Russia also has an active, recent, and
ongoing collection program that targets the U.S.  Beyond collection activities and
espionage directed at the U.S., Russia provides certain technologies to other countries,
such as China, Venezuela and Iran, in exchange for both money and diplomatic
influence.
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
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
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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)).
Analysis
Guideline B - Foreign Influence
Paragraph 6 of the new adjudicative guidelines sets out the security concern
relating to Foreign Influence: “Foreign contacts and interests may be a security concern
if the individual has divided loyalties or foreign 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 a foreign interest.”
Here, Paragraphs 7(a) and 7(b) are applicable: “contacts 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;” and “connections to a foreign person . . . that create a potential conflict of
interest between the individuals obligation to protect sensitive information or technology
and the individual’s desire to help a foreign person . . . by providing that information.”
The Applicant’s parents, brother and a girl friend are citizens and residents of Russia.
These are countered, however, by the first two mitigating conditions, as “the nature of
the relationships with foreign persons, the country in which these persons are located . .
. 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 . . . and the interests of the U.S;” and “there
is no conflict of interest [as] the individual has such deep and long lasting 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.”  The Applicant has clearly demonstrated that her
new life as an American citizen is in the U.S. with her family and possessions, and that,
for the most part, she has cut her connections with Russia.  Furthermore, the Applicant
averred credibly that she could not be coerced by the presence of her parents, brother
and girl friend in Russia by the Russian government.
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Guideline C - Foreign Preference
Paragraph 9 of the new adjudicative guidelines sets out the security concern
relating to Foreign Preference: “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.”
Here, Paragraph 10(a)(1) is applicable. “exercise of any right, privilege or
obligation of a 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; . . . .”  This is clearly countered, however, by the mitigating
conditions noted in Paragraphs 11(b) and 11(e).  Under 11(b), the Applicant “expressed
a [sincere] willingness to renounce dual citizenship;” and under 11(e), the Applicant’s
Russian “passport has been destroyed . . . .”
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 commonsense judgment based upon
careful consideration of the guidelines and the whole person concept.
Her Manager, avers, in part, the following:
Over the last 10-months as . . . [the Applicant’s] direct supervisor I
have come to know her to be a very dependable, trustworthy, hard
working member of our close knit team.  She plays a vital role in our
organization of tracking and maintaining the current status of 100's of
contracts, a role that requires a great deal of attention and focus. . . . [the
Applicant] has stepped into this role taking an active lead in protecting the
company from risk (AppX A the last page).
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Overall, the record evidence leaves me
without questions and doubts as to Applicant’s eligibility and suitability for a public trust
position.  For all these reasons, I conclude Applicant has mitigated the trustworthiness
concerns arising from her alleged Foreign Influence and Foreign Preference.
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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
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Paragraph 2, Guideline C: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For 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 public trust
position.  Eligibility for access to sensitive information is granted.
Richard A. Cefola
Administrative Judge