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                              DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 12-00042
)
)
Applicant for Security Clearance )
Appearances
For Government: Gina Marine, Esquire, Department Counsel
For Applicant: William F. Savarino, Esquire
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Decision
______________
WHITE, David M., Administrative Judge:
Applicant is a dual U.S. and U.K. citizen. He used his U.K. passport solely for
entry into the United Kingdom after a U.K. border agent told him in 2009 that new U.K.
immigration rules required him to enter using his U.K. passport. He since determined
this advice to be erroneous, surrendered his U.K. passport, and mitigated resulting
security concerns. Based upon a review of the pleadings, testimony, and exhibits,
eligibility for access to classified information is granted. 
Statement of the Case
After a hearing before this administrative judge, the Defense Office of Hearings
and Appeals (DOHA) granted Applicant a security clearance on July 25, 2008. On April
11, 2012, the Department of Defense issued a Statement of Reasons (SOR) to
Applicant, detailing security concerns under Guideline C (Foreign Preference). 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 for Determining
Eligibility for Access to Classified Information, (AG) effective within the Department of
Defense after September 1, 2006. 
GE 1; GE 4; Tr. 50-53, 97-104.1
GE 2. The decision is ISCR Case No. 07-09033 (A.J. Jul. 25, 2008).2
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Applicant acknowledged receipt of the SOR on April 20, 2012. He answered the
SOR in writing (AR) on May 24, 2012, and requested a hearing before an administrative
judge. Department Counsel was prepared to proceed on July 3, 2012, and the case was
assigned to me on July 12, 2012. I initially intended to schedule the hearing on August
16, 2012, but granted a request for a continuance until late September due to conflicting
prior obligations of Applicant and his counsel. DOHA issued a Notice of Hearing on
August 30, 2012, and I convened the hearing as scheduled on September 25, 2012.
Department Counsel participated via video teleconference from DOHA headquarters in
Arlington, VA. The Government offered exhibits (GE) 1 through 7, which were admitted
without objection. Applicant offered exhibits (AE) A and B, which were also admitted
without objection. Two witnesses and Applicant testified on his behalf. I granted
Applicant’s and Department Counsel’s request to leave the record open until October
25, 2012, for submission of additional evidence and briefs on an issue at my request.
DOHA received the transcript of the hearing (Tr.) on October 5, 2012. Applicant and
Department Counsel timely submitted additional matters, which were marked Hearing
Exhibits (HE) I through III, and admitted without objection. On January 4, 2013,
Applicant’s counsel submitted a supplemental post-hearing submission, which was also
admitted as HE IV, without objection by Department Counsel. 
Findings of Fact
Applicant is a 61-year-old president and chief executive officer of a major
technology manufacturing company. The company has a faci lity security clearance.
Although they do not presently perform any classified work or possess any classified
material, a number of their employees hold security clearances so that they can attend
meetings and enter facilities as necessary to maximize their products’ performance in
support of Government missions and functions. Applicant, by virtue of his position, is
designated “Key Management Personnel” and requires a security clearance as part of
his company’s eligibility for a facility clearance. Applicant is a dual citizen of the United
States and the United Kingdom, where he was born and raised. He and his wife moved
to the United States in 1995, in a business relocation. They became naturalized U.S.
citizens in 2004, and intend to permanently reside in the United States.1
Applicant first applied for a security clearance during March 2007. After a hearing
into a DOHA SOR that alleged security concerns under Guidelines B (Foreign
Influence) and C (Foreign Preference), I granted Applicant eligibility for a security
clearance in a decision dated July 25, 2008.  The facts and analysis in that decision are,2
except to the extent updated or modified below, incorporated in this decision. In his
answer, Applicant admitted the allegations contained in SOR ¶¶ 1.a, 1.b, and, in part,
1.c. He denied the allegations in SOR ¶ 1.d and, in part, ¶ 1.c. Applicant’s admissions,
including those contained in his responses to DOHA interrogatories, are also
incorporated in this decision as findings of fact.  
AR; GE 3; GE 7; Tr. 58, 83-87. The FSO is also the company’s General Counsel.  He is very experienced3
in corporate law and governance, but has less experience with some nuances of public international law or
immigration law. 
AR; GE 3; GE 7; Tr. 59-68, 71, 87-91.4
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In connection with his 2008 DOHA proceedings, Applicant surrendered his U.K.
passport to his company’s Facility Security Officer (FSO) with the intent that the FSO
retain possession of the passport for as long as Applicant needed a security clearance.
The FSO, in turn, gave the passport to a paralegal employee who locked it in a safe to
which she alone had the combination. Except for one incident involving his prior U.K.
passport described in GE 2, Applicant exclusively used his U.S. passport during his
extensive travels overseas since it was issued to him in July 2004. Applicant’s company
has operations around the globe, and their headquarters for European operations is in
London. During a business trip to the United Kingdom in April 2009, Applicant presented
his U.S. passport, and a “landing card” identifying his place of birth as Scotland, to the
British border agent. The agent asked if he was also a U.K. citizen. Applicant responded
that he was, but that he had regularly traveled to and from the United Kingdom using his
U.S. passport without any problems for almost five years. The agent consulted with a
supervisor, and then advised Applicant that the rules had recently changed and,
although he would permit entry that time, Applicant would have to use his U.K. passport
to enter that country in the future. Applicant informed his FSO of this change. The FSO
attempted to contact authorities at the British embassy to confirm the change. He could
not find anyone there who was able to definitely confirm this requirement, but found a
section of the U.K. Immigration Rules on their government website that he interpreted to
confirm the border agent’s statement that there was a new rule.  3
During late May 2009, Applicant’s grandson, who lives in England, became
seriously ill. Applicant requested that the FSO return his U.K. passport to him for use in
entering the United Kingdom to visit his grandson in the hospital. The FSO consulted
with their company’s security consultant, who advised that he could return the passport
for the limited purpose of entering the United Kingdom, but would have to file an
Adverse Information Report advising the Defense Security Service (DSS) of this action.
The FSO orally advised his DSS representative of the issue, and was also advised to
file the Adverse Information Report, which he did. An Incident History report was also
entered in the JPAS to document this activity. No one advised Applicant or the FSO that
his use of the U.K. passport was prohibited, or otherwise wrongful. Applicant used the
passport only to enter the United Kingdom, and used his U.S. passport to enter and
leave the United States as well as to depart the United Kingdom.4
In response to the renewed security concerns over his use of the U.K. passport
described in the SOR issued by DOHA in April 2012, and his ongoing need to travel to
the United Kingdom on a regular basis which they honestly and reasonably understood
to require use of that passport, Applicant’s company took a number of internal
measures to formalize the fact that he would not be permitted any access to classified
information. He further surrendered the passport to the FSO and entered into an
agreement formalizing the limited purposes under which he would be permitted to use
AR; GE 3; AE A; AE B; Tr. 43-44, 65-66, 68-71, 83-84, 90, 95-103.5
Tr. 73-74, 96-97, 106-110, 117-119, 147; HE I; HE III; HE IV.6
HE IV; Tr. 34-43, 53-56, 88-90, 100-104.7
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the passport and the reports concerning its use that the FSO would provide to DoD.
They took these measures in consultation with their DSS representative, their security
consultant, and Applicant’s attorney, in order to comply with security requirements to the
best of their ability, to minimize any potential risk to national security, and to reaffirm
Applicant’s loyalty to and preference for his U.S. citizenship. He has not voted in any
U.K. elections since becoming a U.S. citizen, or otherwise exercised any right of
citizenship in the United Kingdom other than seeking entry as he thought he was
required to do.5
Applicant advised during the hearing that his next need to enter the United
Kingdom would be on a business trip scheduled for early December 2012. Due to an
explanation by Department Counsel, with which I agreed based on many years of
experience with international travel, of her understanding that the U.K. Immigration Rule
on which the FSO had relied was limited to circumstances in which a potential entrant
was asserting a right to enter the United Kingdom for permanent residence (“right of
abode”), it was agreed that Applicant would attempt this entry using his U.S. passport.
This entry was successful, and confirmed that Applicant does not need to use his U.K.
passport for his non-resident business or family visits to the United Kingdom.
Accordingly, Applicant’s FSO has again locked up and will maintain permanent
possession of the U.K. passport during the duration of Applicant’s employment by the
company. Applicant will resume using only his U.S. passport for all foreign travel.    6
Applicant is highly ethical and conscientiously follows rules and regulations as he
understands them. He also intends to permanently reside in, and exercise only the
citizenship rights and privi leges of, the United States. He did not use his U.K. passport
in an effort or with the intent to exert or claim recognition of any rights or privileges of a
U.K. citizen. He merely did so because he was told that it was required of him. None of
his travel was hidden from U.S. authorities, since he used his U.S. passport for every
border crossing except entry into the United Kingdom between May 2009 and mid-2012.
He has no intent to use his U.K. passport while holding a security clearance now that he
realizes that the United Kingdom does not require its use for the purposes for which he
visits there.  7
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG). In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions (DCs) and mitigating conditions (MCs), which are to be used in
evaluating an applicant’s eligibility for access to classified information.
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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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense decision. According
to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable
guidelines in the context 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 the 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, “[t]he applicant is
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
mitigate facts admitted by the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides: “[a]ny determination under this order adverse to an
applicant 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.”
A person applying for access to classified information seeks to enter 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.
Analysis
Guideline C, Foreign Preference
Under AG ¶ 9 security concerns involving foreign preference arise because,
“[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 under this guideline:
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(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;
(2) military service or a willingness to bear arms for a foreign
country;
(3) accepting educational, medical, retirement, social
welfare, or other such benefits from a foreign country;
(4) residence in a foreign country to meet citizenship
requirements;
(5) using foreign citizenship to protect financial or business
interests in another country;
(6) seeking or holding political office in a foreign country;
(7) voting in a foreign election;
(b) action to acquire or obtain recognition of a foreign citizenship by an
American citizen;
(c) performing or attempting to perform duties, or otherwise acting, so as
to serve the interests of a foreign person, group, organization, or
government in conflict with the national security interest; and
(d) any statement or action that shows allegiance to a country other than
the United States: for example, declaration of intent to renounce United
States citizenship; renunciation of United States citizenship.
The evidence in this case established only the foreign preference DC set forth in
AG ¶ 10(a)(1). Applicant regained possession of his U.K. passport from his FSO in May
2009 after being informed by an apparently knowledgeable U.K. border agent that he
was required to use that passport to enter the United Kingdom. With his knowledge and
direction, his FSO duly reported this possession and use to DoD security authorities,
who did nothing to indicate that there was a problem with the arrangement. His use of
the passport was not for purposes of obtaining recognition of his U.K. citizenship, and
he exercised no rights or privileges thereof other than entering the country, which he
now understands that he can, and intends to, do as a U.S. citizen. He has exercised no
other rights, privileges, or obligations of a U.K. citizen since choosing U.S. citizenship.  
AG ¶ 11 provides conditions that could mitigate foreign preference security
concerns:
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(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.
 
As noted in GE 2, AG ¶¶ 11(a) and (c) apply to mitigate Applicant’s dual
citizenship. This case presents an issue that remains unresolved under AG ¶ 11(d). It is
clear that a company FSO qualifies as a “cognizant security authority” for purposes of
surrendering a passport under AG ¶ 11(e). Whether an FSO is a “cognizant security
authority” for purposes of approving use of a foreign passport under AG ¶ 11(d) is not
settled. 
Department Counsel argued that, contrary to recognized rules of statutory
construction, the use of identical language in two immediately connected provisions of
the guideline required different interpretations, and only a highly placed Government
security official could qualify as a “cognizant security authority” under AG ¶ 11(d). In
support of her position she cited ISCR Case No. 08-11969 (App. Bd. Apr. 22, 2011),
ISCR Case No. 09-07511 (App. Bd. Apr. 22, 2011), and ISCR Case No. 11-01888 (App.
Bd. Jun. 1, 2012). I have carefully read and considered each of these binding
precedential decisions, and find them to be distinguishable from the facts of this case.
Each of them involved Guideline C concerns over use of foreign passports by dual
citizens of the United States and either Estonia or Iran, but also involved substantial and
apparently determinative security concerns under Guideline B (Foreign Influence). 
To the extent these decisions contain language indicating that AG ¶¶ 11(d) and
(e) do not contemplate or authorize a company FSO to be merely a holding repository
for a foreign passport that is returned to a dual citizen for use in foreign travel whenever
requested, they wisely inform the current decision. Each case involved use of the
foreign passport to obtain recognition of the foreign citizenship by the foreign country,
which was not Applicant’s purpose in this case. Applicant neither intended to, nor did,
hide his travel from U.S. authorities since he used his U.S. passport to leave and enter
the United States The only reason the FSO permitted Applicant to use his U.K. passport
was their mutual reasonable, but erroneous, belief that the U.K. border agent was
See HE II, HE III.8
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correct that U.K. immigration rules required it. Now that they understand that
proclamation to have been erroneous under Applicant’s circumstances, he has
permanently surrendered possession of the passport to his FSO. I find that his use of
the passport with FSO permission and submission of proper reports to DoD provides
mitigation under AG ¶ 11(d), and that any future security concerns are fully mitigated
under AG ¶ 11(e).
Counsel for both parties accepted my invitation to submit their positions on
whether the October 2008 revision of Guideline C for Sensitive Compartmented
Information (SCI) access under Intelligence Community Policy Guidance (ICPG) 704.2,
as the only guideline that differed from the AG approved for basic security clearance
eligibility, should inform this decision. I concur with Department Counsel that I have no
authority to modify, or to fail to apply, AG Guideline C as written in 2006 since this case
involves Applicant’s eligibility for a security clearance, rather than eligibility for access to
SCI. I would note, however, that Applicant’s conduct was in total compliance with ICPG
704.2, and in that respect demonstrates further sensitivity to and concern for alleviating
any reasonable potential security concerns.     8
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 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
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.   
I considered the potentially disqualifying and mitigating conditions in light of all
pertinent facts and circumstances surrounding this case. Security concerns in this case
do not involve any personal misconduct, dishonesty, irresponsibility, or disloyal activity
by Applicant. The only issue arose because a misinformed U.K. border agent, after
apparent consultation with a supervisor, told Applicant that he would not be permitted to
enter the United Kingdom on subsequent visits using his U.S. passport. Applicant has a
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regular need to temporarily visit the United Kingdom for both business and family
reasons. In an attempt to comply with what he thought were the rules, he sought the
return of his U.K. passport for subsequent entries into the United Kingdom, and the
matter was duly reported to DoD officials. Applicant and his wife have independently
and voluntarily chosen to become U.S. citizens, and have no interest in exercising any
rights, privileges, or responsibi lities of U.K. citizenship. He used his U.K. passport for
entrance there because he reasonably thought that applicable laws required it. Now that
he understands the difference between entering the United Kingdom with right of
permanent abode as a citizen and entering as a visiting U.S. citizen, he has
surrendered his U.K. passport to his FSO and will not use it while employed at that
company. 
I note here that Applicant’s company has also undertaken to ensure that he has
no access to classified information, in order to minimize potential security concerns.
That access decision has no relevance under Guideline C, but does eliminate any
potential for pressure, coercion, exploitation, or duress under AG ¶ 2(a)(8), and any
potential for post-employment misuse of information to which Applicant might have
access while holding a “Key Management Personnel” clearance. This is further
evidence of the extent to which Applicant and his corporate colleagues are sensitive
and committed to upholding the obligations of their facility and personal security
clearances.
Overall, the record evidence creates no doubt as to Applicant’s present eligibility
and suitabi li ty for a security clearance. He fully met his burden to mitigate any security
concerns arising from foreign preference considerations.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline C: FOR APPLICANT
Subparagraphs 1.a through 1.d: 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 securi ty
clearance. Eligibility for access to classified information is granted.
                                              
DAVID M. WHITE
Administrative Judge