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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-06971
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: John N. Griffith, Esquire
December 12, 2011
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Electronic Questionnaires for Investigations
Processing (e-QIP) on July 30, 2010.  On December 14, 2010, the Defense Office of
Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the
security concerns under Guidelines B and C for the 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); and the adjudicative guidelines (AG), effective within the
Department of Defense after September 1, 2006. 
The Applicant acknowledged receipt of the SOR on December 16, 2010.  He
answered the SOR in writing on December 29, 2010, and requested a hearing before
an Administrative Judge.  DOHA received the request on January 3, 2011, and I
received the case assignment on June 3, 2011.  DOHA issued a notice of hearing on
June 6, 2011, and I convened the hearing as scheduled on June 28, 2011.  The
Government offered Exhibits (GXs) 1 through 3, which were received without objection.
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The Applicant testified on his own behalf, as did four witnesses, and submitted Exhibits
(AppXs) A through II, which were received without objection.  DOHA received the
transcript of the hearing (TR) on July 7, 2011.  I granted the Applicant’s request to keep
the record open until July 28, 2011, to submit additional matters.  On July 12, 2011, he
submitted AppXs JJ and KK, which were received without objection. As the undersigned
was on leave on July 28, 2011, the record closed on August 2, 2011.  Based upon a
review of the 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 Israel.  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 his Answer to the SOR, the Applicant admitted the factual allegations in
Subparagraphs 1.a, 1.b., 1.d., 1.e. and 2.b. of the SOR, with explanations.  He denied
the factual allegations in Subparagraphs 1.c. and 2.a. of the SOR.  He also provided
additional information to support his request for eligibility for a security clearance.
The Applicant moved to the U.S. in 1994, and started working for his current
employer in 2004.  (TR at page 97 line 14 to page 99 line 17.)  He became a U.S.
citizen in January of 2006.  (GX 1 at pages 7~10.)  His net worth in the U.S., excluding
the proceeds from the recent sale of a house in Israel, is about $1,560,000.  (TR at
page 127 line 3 to page 129 line 18, and AppX FF.)
Guideline B - Foreign Influence
1.a.  The Applicant’s parents and brother are citizens and residents of Israel.
(GX 1 at pages 25~28.)  His 90 year old father is a retired musician, and his 80 year old
mother is a retired librarian.  (TR at page 82 lines 13~24, at page 83 line 9 to page 87
line 18, and at page 105 line 23 to page 107 line 17.)  The Applicant’s brother is a
freelance translator.  (Id.)  Neither his parents nor his sibling have any connection with
the Israeli government.  (TR at page 82 lines 13~24, at page 83 line 9 to page 87 line
18, and at page 105 line 23 to page 107 line 17.)
1.b.  The Applicant’s in-laws are citizens and residents of Israel.  (GX 1 at pages
28~29.)  His 89 year old father-in-law is retired from the private sector and suffers from
Alzheimer’s disease, and his 70 year old mother-in-law is also retired from the private
sector where she was a nurse.  (TR at page 73 line 14 to page 74 line 16, and at page
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88 line 4 to page 89 line 8.)  Neither in-law has any connection with the Israeli
government.  (Id.)
1.c.  The Applicant owns no property in Israel, as his house there was sold in
December of 2010, as evidenced by the documents of sale.  (TR at page 76 line 19 to
page 77 line 10, at page 118 line 16 to page 121 line 16, and AppXs GG, II and KK.)
1.d.  The Applicant has a retirement fund in Israel, which he paid into. The fund is
not affiliated with the Israeli government, and it is valued at about $135,000.  (TR at
page 78 line 18 to page 79 line 12, at page 122 line 13 to page 126 line 11, and AppX
JJ.)
1.e.  The Applicant visited Israel in 2003, 2004, 2006, 2007, 2008, 2009, 2010,
and 2011.  (TR at page 94 line 6 to page 95 line 6, and at page 110 line 17 to page 113
line 18.)  Each visit lasted between “two and three weeks,” and he visited his parents
and his in-laws.  (Id.)
Guideline C - Foreign Preference
2.a. and 2.b.  The Applicant applied for and was issued an Israeli passport in
December of 2007, after becoming a naturalized U.S. citizen in January of 2006.  (GX 1
at page 33.)  He used this passport to travel to Israel in 2008, 2009, and 2010.  He was
under a misapprehension that as a dual national with Israel, he was required to enter
and exit Israel using an Israeli passport.  (TR at page 93 line 8 to page 94 line 5.)  After
his 2010 trip, he discovered that this perception was wrong; i.e., that he, in fact, could
use his U.S. passport to enter and exit Israel.  (TR at page 114 to page 116 line 17.)
Since this discovery, his Israeli passport has been invalidated by the Israeli consulate,
and he used his U.S. passport to enter and exit Israel on his 2011 trip.  (TR at page 137
line 14 to page 139 line 20, and AppX C.)  Furthermore, he is willing to renounce his
Israeli citizenship.  (TR at page 116 line 18 to page 118 line 15.)
I also take administrative notice of the following facts.  Israel is one of the most
active collectors of proprietary information.  Furthermore, Israeli military officers have
been implicated in this type of technology collection in the U.S.  There have been cases
involving the illegal export, or attempted illegal export, of U.S. restricted, dual use
technology to Israel.  The U.S. Department of Commerce has penalized various U.S.
companies for technological transfers directly to Israel.  Finally, Israel has become a
major global leader in arms exports and, over the last two decades, the U.S. and Israel
have periodically disagreed over Israel sales of sensitive U.S. and Israeli technologies
to third party countries, most notably China.
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
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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 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.
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.
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).
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Analysis
Guideline B - Foreign Influence
Paragraph 6 of the 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, Paragraph 7(a) is 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.”  The
Applicant’s parents, brother, and in-laws are citizens of and reside in Israel.  This is
countered, however, by the first mitigating condition, 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.”  The Applicant’s Israeli
relatives have no connection with the Israeli government.  His parents and in-laws were
employed in the private sector, and are now retired.  His brother also works in the
private sector.  Furthermore, the disqualifying condition found in Paragraph 7(e) is not
applicable.  The Applicant has no “substantial . . . financial, or property interest” in
Israel.  He has sold his house in Israel, and with its proceeds, his net worth in the U.S.
is nearly $3,000,000.  His $135,000 retirement fund in Israel pales in comparison to his
net worth.
Guideline C - Foreign Preference
Paragraph 9 of the 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.
Subparagraph 10(a)(1) is applicable: “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.”  Here, the Applicant, a naturalized citizen, used an Israeli passport to enter
that country in 2008, 2009 and 2010.  This is clearly countered, however, by the
mitigating conditions found under Subparagraphs 11(b) and 11(e).  Subparagraph 11(b)
notes that where “the individual has expressed a willingness to renounce dual
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citizenship,” this is mitigating.  I find that Applicant’s renunciation intention to be
genuine.  Furthermore, under Subparagraph 11(e), the Applicant’s “passport has been .
. . invalidated,” by the Israeli consulate.
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.  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 Administrative Judge should also 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.”
The Applicant understands his responsibility to the U.S. while holding a security
clearance; and as such, meets the eligibility criterion.  Furthermore, he has the
unqualified support of those who know and have worked with the Applicant (TR at page
30 line 16 to page 53 line 25, and AppXs S~BB).  Also, his Program Manager, and the
his Director of Engineering Development, testified and both spoke most highly of the
Applicant (TR at page 30 line 16 to page 53 line 25).  They all feel he is trustworthy; and
as such, should be granted a security clearance.
I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  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 his alleged Foreign Influence and Foreign Preference.
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
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Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: 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 security
clearance.  Eligibility for access to classified information is granted.
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Richard A. Cefola
Administrative Judge