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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)      ISCR Case No. 09-01894
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: James F. Duffy, Esquire, Department Counsel
For Applicant: Bobby Olds, Esquire
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the case file, pleadings, exhibits, and testimony, I grant
Applicant’s eligibility for access to classified information.
Applicant completed her Security Clearance Application (SF 86) on February 15,
2005 and signed it on November 21, 2005. The Defense Office of Hearings and
Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security
concerns under Guidelines C and E on May 26, 2009. 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 the President
on December 29, 2005, and effective within the Department of Defense for SORs
issued after September 1, 2006. 
 
W hen  SOR allegations are controverted, the government bears the burden of producing evidence sufficient1
to prove controverted allegations. Directive, ¶ E3.1.14. “That burden has two components. First, the
government must establish by substantial evidence that the facts and events alleged in the SOR indeed took
place. Second, the government must establish a nexus between the existence of the established facts, and
events and a legitimate security concern.” See ISCR Case No. 07-18525 at 4 (App. Bd. Feb. 18, 2009),
(concurring and dissenting, in part) (citations omitted).
GE 1; Tr. 25, 51-55, 62-65, 67.2
GE 1; Tr. 13-14, 25-27, 58-59.3
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Applicant acknowledged receipt of the SOR on June 8, 2009. She answered the
SOR in writing on June 24, 2009, and requested a hearing before an administrative
judge. DOHA received the request on June 29, 2009. Department Counsel was
prepared to proceed on August 31, 2009, and I received the case assignment on
September 17, 2009. DOHA issued a notice of hearing on September 25, 2009, and I
convened the hearing as scheduled on October 21, 2009. The government offered three
exhibits (GE) 1 through 3, which were admitted into evidence without objection.
Applicant and five witnesses testified. DOHA received the transcript of the hearing (Tr.)
on October 29, 2009. I held the record open until November 5, 2009, for Applicant to
submit additional matters. On November 5, 2009, she submitted one exhibit, AE A,
which was admitted without objection. The record closed on November 5, 2009.
Findings of Fact
In her Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a,
and 1.b of the SOR, with explanations. She denied the factual allegations in ¶¶ 2.a and
2.b of the SOR, with explanation.   1
Applicant, who is 33 years old, works as an administrative assistant for a
Department of Defense contractor. She began working in this position in January 2005.
Her duties include managing an office staff of five, and inputting work orders and related
information into a federal government data base. This information relates to repair and
maintenance work orders for work her employer performs under contract with the
military base. The data base, the computer, and the work orders do not contain
classified information. The federal government requires a clearance for her common
access card (CAC) which gives her access to the unclassified data base.2
Applicant’s 63-year-old parents are citizens of the United States and Panama.
Her father worked for the United States Government in the Panama Canal Zone and is
a retired federal employee. Her parents reside in Panama, where Applicant was born.
Applicant has been a citizen of Panama since birth and a citizen of the United States
since 1985. At 1996, at age 20, Applicant obtained a GS-4 summer position working for
the United States Government in the Panama Canal Zone. At the end of the summer,
her manager offered her a permanent position. He testified on her behalf and described
her as a quick learner and excellent employee.3
GE 1; Tr. 31-32, 43-44.4
Department Counsel advised Applicant that if she surrendered her Panamanian passport to her facility5
security officer and then requested that her passport be returned to her, the government would be notified of
her request. If so notified, the government would initiate proceedings to revoke her clearance. Tr. 76.
GE 3; AE A; Tr. 28-31.6
GE 2; Tr. 15-17, 28, 31.7
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Applicant met her husband, who is a United States Citizen by birth, when he was
working in the Panama Canal Zone for the housing division of the United States Army.
They married in December 1999 in Germany. Since their marriage, Applicant and her
husband have lived in Germany, Puerto Rico, and the United States mainland. Their
daughter is seven years old, and a resident in and citizen of the United States.
Applicant’s 40-year-old brother is a United States citizen, living in the United States.
Applicant’s 36-year-old sister is a United States citizen, living in the United States.4
Applicant has a Panamanian identification card, which she believes she had from
birth. She also has a United States passport, which she obtained after she became a
United States citizen in 1985. She is a dual citizen of both countries. Applicant used her
United States passport when traveling outside the United States. She used her
Panamanian passport to enter and exit Panama, but does not otherwise use this
passport. At the hearing, Applicant testified that she was willing to renounce her
Panamanian citizenship or surrender her Panamanian passport to her facility security
officer. I held the record open for Applicant to make a decision on her hearing
statement.  On November 3, 2009, Applicant surrendered her Panamanian passport to5
her facility security officer.   6
Applicant has voted in elections in the United States, but she has not voted in
elections in Panama. Applicant does not own any property or hold any financial assets
in Panama. At some undefined point in the future, she may inherit a portion of her
parents’ property in Panama. Applicant does not receive any financial benefits from the
Panamanian government. She has not worked for the Panamanian government.
Applicant is not involved in political organizations in Panama. She and her husband own
property in the United States. Applicant’s preference is to the United States.7
When she completed her security clearance application, Applicant answered “no”
to the following question:
16. Foreign Countries You Have Visited
Have you traveled outside the United States on other than
official U.S. Government orders in the last 7 years? (Travel
as a dependent or contractor must be listed.) Do not repeat
travel covered in modules 4, 5, and 6.
GE 1; Tr. 18-20, 34-38.8
GE 2; GE 3; Response to SOR.9
Tr. 42-68.10
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Applicant listed the dates and times she lived in Germany and Puerto Rico when she
answered question 4. She listed her education in Panama when she answered question
5. She listed her employment in Panama, Puerto Rico, and Germany when she
completed question 6. Because she was not clear on how to answer question 16,
Applicant asked for assistance when she was filling out her SF-86 application. She was
told to “do the best you can.” She understood question 16 to mean that she was not to
list information previously listed. She answered “no” based on this belief. Applicant
credibly testified that she had no intent to hide information or to deceive the
government.  8
The government also alleges that Applicant falsified her answers to
interrogatories, dated March 18, 2009, when she did not submit a copy of her
Panamanian passport. Applicant denied any falsification. She believed that she had
submitted her current Panamanian passport. She actually submitted her expired 2007
Panamanian passport with her March 18, 2009 answer. However, six days later, she
submitted her current Panamanian passport with her interrogatory answers, dated
March 24, 2009.9
Applicant’s husband, first line supervisor, government project manager, her
employer’s project manager, and a former supervisor and good friend testified on her
behalf. All consider her highly trustworthy and loyal to the United States. Her supervisor
and project managers describe her as an excellent employee.  10
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 used 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 overarching
adjudicative goal is a fair, impartial, and commonsense 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.
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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, an applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An
applicant has the ultimate burden of persuasion to obtain 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
an 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 EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline C, Foreign Preference
Under AG ¶ 9 the security concern involving foreign preference arises, “[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.
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Applicant had possessed a Panamanian passport since becoming a United
States Citizen in 1985. She used this passport to enter and exit Panama when visiting
her parents. The government has established a prima facie case under Guideline C.
Under AG ¶ 11, Applicant may mitigate security concerns arising under Guideline
C through one of the following means:
(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. 
Applicant has expressed an intent to renounce her Panamanian citizenship, but
has not done so. She, however, surrendered her Panamanian passport to her facility
security officer on November 3, 2009, knowing that if she requests the passport, the
government will be notified and her clearance may be revoked. She has exercised her
rights of United States citizenship and has shown a preference for the United States
She has mitigated the Foreign Preference concerns under AG ¶ 11 (e). Guideline C is
found for Applicant.
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
about an individual's reliability, trustworthiness and ability to protect
classified information. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.
AG ¶ 16(a) describes conditions that could raise a security concern and may be
disqualifying:
See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-2313311
at 5 (App. Bd. Jun. 9, 2004)).
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(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or
similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities.
For this guideline to apply, Applicant’s omission must be deliberate. The
government established that Applicant omitted material facts from her SF-86 when she
answered “no” to Question 16 about her travel outside of the United States. This
information is material to the evaluation of Applicant’s trustworthiness to hold a security
clearance and to her honesty. She denies, however, that she deliberately falsified her
answer to this question. When a falsification allegation is controverted, the government
has the burden of proving it. Proof of an omission, standing alone, does not establish or
prove an applicant’s intent or state of mind when the omission occurred. An
administrative judge must consider the record evidence as a whole to determine
whether there is direct or circumstantial evidence concerning an applicant’s intent or
state of mind at the time the omission occurred.  For DC ¶ 16 (a) to apply, the11
government must establish that Applicant’s omission, concealment, or falsification in her
answer was deliberate.
When she completed her SF-86, Applicant provided information in her answers
to questions 4, 5, and 6 about her residences, education, and employment in foreign
countries. She had asked for guidance with answering question 16, as she was not sure
how she should answer it. She was told to do her best. Because she had provided
information on her foreign residences, employment and education, she followed the
question instruction not to provide information already listed. 
Applicant believed that she had submitted her most recent Panamanian passport
with her March 18, 2009 interrogatory answers. She did not and her failure was nothing
more than an oversight as she submitted the correct passport six days later. Applicant
had no intent to hide information from the government, a fact the government conceded
at the hearing. Guideline E is found in favor of Applicant.
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 an applicant’s
conduct and all relevant 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
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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. 
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. The decision to grant or deny a security
clearance requires a careful weighing of all relevant factors, both favorable and
unfavorable. In so doing, an administrative judge must review all the evidence of record,
not a single item in isolation, to determine if a security concern is established and then
whether it is mitigated. A determination of an applicant’s eligibility for a security
clearance should not be made as punishment for specific past conduct, but on a
reasonable and careful evaluation of all the evidence of record to decide if a nexus
exists between established facts and a legitimate security concern. 
The evidence in support of granting a security clearance to applicant under the
whole person concept is more substantial than the evidence in support of denial. In
reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant
grew up in the Panama Canal Zone when it was still a territory under the control of the
United States. Her father worked for and retired from the United States government. Her
husband, her daughter, her parents, and her siblings are citizens of the United States.
Her parents live in Panama. Her closest family members, her husband and daughter,
live with her in the United States as do her siblings. She does not own property or have
any financial interest in Panama. Other than holding a Panamanian passport, she has
not exercised any rights of her Panamanian citizenship. Rather, she has exercised her
rights as a United States citizen. She recently surrendered her Panamanian passport to
her facility security officer. Her loyalties and preference are to the United States, not to
Panama. She answered the questions on the SF-86 to the best of her understanding
and did not withhold relevant information from the government when she completed her
SF-86 or when she answered the interrogatories sent to her. 
Overall, the record evidence leaves me without questions or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant mitigated the security concerns arising from her foreign preference
and personal conduct.
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 C: FOR APPLICANT
Subparagraph 1.a: For Applicant
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Subparagraph 1.b: For Applicant
Paragraph 1, Guideline E: 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 the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                                              
MARY E. HENRY
Administrative Judge