DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------------------------------- )       ISCR Case No. 10-04755
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Department Counsel
For Applicant: Pro se
November 29, 2011
______________
Decision
______________
LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP), on January 20, 2010.  (Government Exhibit 1).  On June 16, 2011, the Defense
Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as
amended), and Department of Defense Directive 5220.6 (Directive), dated January 2,
1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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
the Applicant and recommended referral to an Administrative Judge to determine
whether a clearance should be denied or revoked.
Applicant answered the SOR in writing on July 23, 2011, and requested a hearing
before an Administrative Judge. The case was assigned to the undersigned
Administrative Judge on September 20, 2011.  A notice of hearing was issued on
October 6, 2011, scheduling the hearing for October 12, 2011.  At the hearing, the
Government offered four exhibits referred to as Government Exhibits 1 through 4, which
were received without objection.  The Applicant offered nine exhibits, referred to as
2
Applicant’s Exhibits A through I, which were admitted into evidence without objection.
He also testified on his own behalf.  The transcript of the hearing (Tr.) was received on
October 21, 2011.  Based upon a review of the case file, pleadings, exhibits, and
testimony, eligibility for access to classified information is granted.
REQUEST FOR ADMINISTRATIVE NOTICE
Department Counsel submitted a formal request that I take administrative notice
of certain facts concerning the current political condition in Burma that were set forth in
Administrative Notice documents 1 through 6.  Applicant had no objection to the
documents.  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 following Findings of Fact are based on Applicant's Answer to the SOR,
testimony and the exhibits.  The Applicant is 31 years of age and has a Master’s Degree
in Electrical Engineering.  He is employed as a Software Engineer by a defense
contractor and seeks to obtain a security clearance in connection with his employment in
the defense industry.
Paragraph 1 (Guideline B - Foreign Influence).  The Government alleges in this
paragraph that the Applicant is ineligible for clearance because he has foreign contacts
that could create the potential for foreign influence that could result in the compromise of
classified information.
The Applicant was born in Burma in 1980.  In 1996, at the age of sixteen, he
immigrated with his parents to the United States on an immigration visa.  His parents
always liked the United States for its many opportunities that included education and
work.  Prior to their immigration, his father had worked for the United States Government
in Burma for twenty-two years.  His father retired in 1992.  The Applicant attended high
school in the United States, and then attended college where he graduated with honors
in 2002.  He then started working for his current employer, a defense contractor, who
offered him a fellowship and paid for a masters degree.  In 2002, the Applicant became a
naturalized United States citizen and received a United States passport.  After becoming
a United States citizen he has traveled to Burma on two occasions and both times he
traveled using his United States passport.  The Applicant has always timely filed his pre
and post foreign travel reports with his company security department.  (Applicant’s
Exhibit B.)    
The Applicant has no foreign business, financial interests, property, investments
or assets of any kind in Burma.  All of his assets are in the United States.  Between liquid
assets, banking accounts, retirement accounts and his salary, his approximate net worth
3
in the United States is $450,000.  (Applicant’s Exhibit I and Tr. p. 68.)  He states that he
would never do anything to benefit Burma over the United States, or to jeopardize the
national security of the United States.  (Tr. p. 74.)     
In 2007, the Applicant was engaged to his wife, a citizen of Burma and got
married in 2008.  He promptly reported this marriage to his company security
department.  (Applicant’s Exhibit A.)  His wife is now a permanent resident of the United
States, and a physician who is currently working on her medical residency in the United
States.  She plans to immediately file for her citizenship when she is eligible.  The
Applicant’s mother-in-law,  father-in-law, brother-in-law and sister-in-law are citizens and
residents of Burma.  His mother-in-law owns a clothing store in Burma.  His father-in-law
is the assistant manager of a plastics factory.  His sister-in-law helps run the clothing
store.  His brother-in-law is a medical student at the same university the Applicant’s wife
attended.  The Applicant also has three aunts who are citizens and residents of Burma.
The Applicant has minimal contact with his in-laws.  His last contact with his in laws was
more than three months ago when his wife moved out of state to work on her medical
residency.  
His three aunts, his father’s sisters, all live together in one house in Burma.  They
are all retired school teachers.  The Applicant maintains no regular contact with them
and has not had contact with them for over a year.  (Tr. p. 53.)  The Applicant provides
no financial support to any of his extended family in Burma.  The Applicant has told none
of her family in Burma that he is applying for a security clearance with DoD and has no
intentions of ever discussing the issue with them.  None of his family members in Burma
are associated with the Burmese Government in any way.  He has no loyalty, affection or
obligation of any kind to his extended family in Burma.
The Applicant’s mother and father are naturalized United States citizens who
reside in the United States.  His father is now retired.  He currently receives a retirement
check from the United States Government.  (Tr. p. 62.)  The Applicant’s mother currently
works as a nurse’s aid at an adult day care center.  (Tr. p. 69.)
A letter from the Applicant’s wife dated October 11, 2011, indicates that she is
working to establish her permanent ties in the United States.  She is currently a
permanent resident of the United States and plans to apply for her United States
citizenship as soon as she is eligible, which would be on December 23, 2011.
(Applicant’s Exhibits E and F.) 
A letter dated October 12, 2011, from the Applicant’s retired Center Manager who
hired the Applicant describes the Applicant as an employee who has a one of a kind
technical expertise, loyalty and customer commitment to excellence.  He is also a person
of integrity and loyalty.  He is highly sought after by management due to his skills.  He
has never had a security violation.  He is recommended for a security clearance.
(Applicant’s Exhibit G.)
4
A letter from a coworker dated October 11, 2011, who has worked closely with the
Applicant for the past five years indicates that he has no doubts about the Applicant’s
reliability, work habits, or loyalty to the company or the country.  He has no reservations
recommending him for a security clearance.  (Applicant’s Exhibit G.)   
I have taken administrative notice of the current political conditions in Burma.
Burma is a former British colony that gained its independence in 1948, but its post
colonization history has been marred by unrest and military coups.  The political
relationship between the United States and Burma worsened after the 1988 military coup
and violent suppression of pro-demonstrators.  Subsequent regime repression, including
the brutal crackdown on peaceful protestors in September 2007, further strained the
relationship.  The Burmese government has historically committed human rights abuses.
The State Department noted that, the Army increased attacks on ethnic minority
villagers. . . designed to drive them from their traditional land.  In addition, the
government continued to commit other serious abuses, including extrajudicial killings,
custodial deaths, disappearances, rape, and torture.  The government abused prisoners
and detainees, held persons in harsh and life threatening conditions, routinely used
incommunicado detention, and imprisoned citizens.  The government restricted freedom
of speech, press, assembly, association, religion, and movement.  
Another significant human rights concern with Burma is its forced labor and
trafficking in persons.  In 2003, as a direct result of Burma’s poor human rights record,
the United States imposed a range of trade sanctions, including bans on the importation
of Burmese products into the United States and export of financial services from the
United States to Burma.  President George W. Bush expanded the 2003 Executive Order
most recently with a new Executive Order blocking property and prohibiting certain
transactions related to Burma based upon the Burmese government’s “continued
repression of the democratic opposition to Burma.”  United States and Burma relations
remain strained and United States citizens have been detained, arrested, tried, and
deported for, among other activities distributing pro-democratic literature and visiting the
home and offices of Burmese pro-democracy leaders.  The Burmese government has
also warned the United States that it intends to jail United States citizens in the future if
they participate in similar activities, rather than deport them.         
     
POLICIES
Security clearance decisions are not made in a vacuum.  Accordingly, the
Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and
conditions that could raise or mitigate a security concern, which must be given binding
consideration in making security clearance determinations.  These factors should be
followed in every case according to the pertinent criterion.  However, the conditions are
neither automatically determinative of the decision in any case, nor can they supersede
the Administrative Judge’s reliance on her own common sense.  Because each security
clearance case presents its own unique facts and circumstances, it cannot be assumed
that these factors exhaust the realm of human experience, or apply equally in every
5
case.  Based on the Findings of Fact set forth above, the factors most applicable to the
evaluation of this case are:
Foreign Influence
6.  The Concern.  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. 
Conditions that could raise a security concern:
7.  (a) contact with a foreign family member, business or professional associate,
friend, or other person who is a citizen of or resident of a foreign country if that contact
creates a heightened risks of foreign exploitation, inducement, manipulation, pressure, or
coercion; and
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.
Conditions that could mitigate security concerns:
8.  (a) the nature of the relationships with foreign persons, the country in which
theses 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.;
8.  (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 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
8.  (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.
6
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent and seriousness of the conduct;
b.  The circumstances surrounding the conduct, to include knowledgeable
participation;
 c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The extent to which participation is voluntary;
f.  The presence or absence of rehabilitation and other permanent behavior
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question, posed
in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to classified information.
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
eligible for a security clearance.  Eligibility for access to classified information is
predicated upon the individual meeting these personnel security guidelines.  The
adjudicative process is the careful weighing of a number of variables known as the
whole- person concept.  Available, reliable information about the person, past and
present, favorable and unfavorable should be considered in reaching a determination. 
The Administrative Judge can draw only those inferences or conclusions that have
reasonable and logical basis in the evidence of record.  The Judge cannot draw
inferences or conclusions based on evidence which is speculative or conjectural in
nature.  Finally, as emphasized by President Eisenhower in 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 Applicant
concerned.”
The Government must make out a case under Guideline B (foreign influence) that
establishes doubt about a person's judgment, reliability and trustworthiness.  While a
7
rational connection, or nexus, must be shown between Applicant's adverse conduct and
his ability to effectively safeguard classified information, with respect to sufficiency of
proof of a rational connection, objective or direct evidence is not required.
Then, the Applicant must remove that doubt with substantial evidence in
refutation, explanation, mitigation or extenuation, which demonstrates that the past
adverse conduct is unlikely to be repeated, and that the Applicant presently qualifies for
a security clearance.
An individual who has foreign connections may be prone to provide information or
make decisions that are harmful to the interests of the United States.  Foreign influence
can raise questions as to whether the Applicant can be counted upon to place the
interests of the United States paramount to that of another nation. The Government must
be able to place a high degree of confidence in a security clearance holder to abide by
all security rules and regulations, at all times and in all places.
CONCLUSIONS
Having considered the evidence of record in light of the appropriate legal
standards and factors, and having assessed the Applicant's credibility based on the
record, this Administrative Judge concludes that the Government has established its
case as to all allegations in the SOR.   
Under Foreign Influence, Disqualifying Conditions 7.(a) contact with a foreign
family member, business or professional associate, friend, or other person who is a
citizen of or resident of a foreign country if that contact creates a heightened risk of
foreign exploitation, inducement, manipulation, pressure, or coercion, and 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 apply.  However, Mitigating Conditions 8.(a) the nature of the
relationships with foreign persons, the country in which theses 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.,  8.(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 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 8.(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 also
apply.
It is acknowledged that the Applicant’s mother-in-law, father-in-law, sister-in-law,
brother-in-law, and three aunts are citizens of and reside in Burma.  The Applicant has
8
never formed close ties with his in laws, nor has he kept in contact with his aunts.  Given
his limited contact with them, he has clearly established that those contacts are casual
and pose no security risk whatsoever.  His wife is a permanent resident of the United
States and is planning on applying for her United States citizenship as soon as she is
eligible.  It is noted that the current political situation in Burma elevates the cause for
concern in this case.  However, in this case, the Applicant is a naturalized American
citizen who has lived in the United States since the age of sixteen.  He considers himself
only American and has adopted the American culture and its values.  He is grateful to
the United States for the many opportunities it has provided him and he expresses his
loyalty to this country.  Under the particular facts of this case, the possibility of foreign
influence does not exist, nor could it create the potential for conduct resulting in the
compromise of classified information.  I find that the Applicant is not vulnerable to foreign
influence.  Accordingly, I find for the Applicant under Guideline B (Foreign Influence).
I have also considered the “whole-person concept” in evaluating the Applicant’s
eligibility for access to classified information.  Under the particular facts of this case, the
totality of the conduct set forth under all of the guidelines viewed as a whole, support a
whole-person assessment of good judgement, trustworthiness, reliability, candor, a
willingness to comply with rules and regulations, or other characteristics indicating that
the person may properly safeguard classified information.  The Applicant is a bright
engineer who has a promising future with the Defense Department.  His favorable
evidence, which include letters from his retired manager who hired him and a coworker,
is additional evidence that demonstrate his trustworthiness.  He has presented sufficient
evidence in mitigation to demonstrate that he is not a  security risk.
Considering all the evidence, the Applicant has met the mitigating conditions of
Guideline B of the adjudicative guidelines set forth in Enclosure 2 of the Directive.
Accordingly, he has met his ultimate burden of persuasion under Guideline B.  
FORMAL FINDINGS
Formal Findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: For the Applicant.
Subpara. 1.a.: For the Applicant
Subpara. 1.b.: For the Applicant
Subpara. 1.c.: For the Applicant
9
DECISION
In light of the circumstances presented by the record in this case, it is clearly
consistent with the national interests to grant or continue a security clearance for the
Applicant.
Darlene Lokey Anderson
Administrative Judge