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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 13-01072
)
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Corey Williams, Esquire
May 14, 2014
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on August 14, 2012.  On November 15, 2013, the Department of Defense
(DOD) issued a Statement of Reasons (SOR) detailing the security concerns under
Guideline B for 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. 
Applicant acknowledged receipt of the SOR on December 2, 2013.  He answered
the SOR in writing on December 23, 2013, and requested a hearing before an
Administrative Judge.  DOHA received the request soon thereafter, and I received the
case assignment on March 17, 2014.  DOHA issued a notice of hearing on April 4,
2014, and I convened the hearing as scheduled on April 16, 2014.  The Government
offered Exhibits (GXs) 1 through 5 and an Appellate Exhibit, which were received
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without objection.  Applicant testified on his own behalf and submitted Exhibits (AppXs)
A through EE, which were received without objection.  DOHA received the transcript of
the hearing (TR) on April 29, 2014.  I granted Applicant’s request to keep the record
open until April 30, 2014, to submit additional matters.  On April 21, 2014, he submitted
Exhibits FF and GG, which were received without objection.  The record closed on April
30, 2014.  Based upon a review of the pleadings, exhibits, and testimony, eligibility for
access to classified information is granted.
Procedural and Evidentiary Rulings
Motion to Amend SOR
Department Counsel moved to amend Subparagraph 1.b. of the SOR by deleting
the word “three” before “brothers,” substituting therefore the word “two.”  (TR at page 97
line 8 to page 98 line 3.)
Administrative Notice
Department Counsel also submitted documents regarding the Republic of Korea
for the purpose of Administrative Notice.  It will be discussed further in my Findings of
Fact.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Subparagraphs 1.a., 1.b., and 1.d. of the SOR, with explanations.  He denied the factual
allegations in Subparagraph 1.c. of the SOR.  He also provided additional information to
support his request for eligibility for a security clearance.
Guideline - Foreign Influence
Applicant is a 54-year old Air Force retiree who works for a government
contractor in South Korea.  (TR at page 31 line 8 to page 43 line 11.)  He married his
wife in 1985, while stationed in South Korea.  (Id.)  He has held a security clearance
since “1978 or 1979 . . . when . . . [he] entered active duty into the Air Force.”  (TR at
page 34 lines 4~8.)
1.a.  Applicant’s wife of nearly 30 years is a citizen and resident of South Korea.
(TR at page 44 line 3 to page 45 line 22.)  She is a resident alien of the United States as
evidenced by her “green card.”  (AppX B.)  Her South Korean passport affirms that she
is a resident alien of “THE U.S.A..”  (AppX FF.)  Once Applicant’s current contract is
over, they plan to return to the United States, and she will apply for U.S. citizenship.
(TR at page 49 line 23 to page 51 line 6.)
1.b.  Applicant’s 84-year old mother-in-law is a citizen and resident of South
Korea.  (TR at page 93 line 23 to page 94 line 15.)  She has no connection with the
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South Korean government and her deceased spouse, Applicant’s father-in-law, worked
for the U.S. Air Force.  (Id.)  His mother-in-law speaks no English, and he last visited
her in about 2006.  (TR at page 56 lines 1~11.)
Applicant’s two brothers-in-law are citizens and residents of South Korea.  They
speak no English; and as a result, he has little contact with them.  (TR at page 54 line 7
to page 55 line 12.)  He last saw his brothers-in-law in “December of 2009.”  (Id.)  “They
are day laborers doing construction,” and have no connection with the South Korean
government.  (TR at page 94 line 16 to page 95 line 4.)
Applicant’s sister-in-law is a citizen and resident of South Korea.  (TR at page 95
lines 5~11.)  “She is a housewife.”  (Id.)
Applicant avers credibly that he would not be subject to coercion vis-a-vis his
South Korean relatives.  (TR at page 49 lines 10~22, at page 88 line 15 to page 89 line
11, and at page 93 line 10.)
1.c. and 1.d.  As of April of 2014, Applicant and his wife have assets totaling
$63,000 in South Korea.  (AppX H.)  He has divested himself of the alleged South
Korean “certificate deposits,” and lives in an apartment he owns valued at approximately
$60,000.  (Id, TR at page 57 line 8 to page 62 line 14, at page 70 lines 13~16, and at
page 72 line 3 to page 75 line 14.)  His net worth in the United States is about $1,129,
876, or 94.72% of his total net worth.  (AppX H.)  He and his wife divested the
“approximately $200,000" invested in “her brother-in-law[‘s]” construction business in
2005, about nine years ago.  (TR at page 35 lines 14~21, and at page 63 line 16 to page
64 line 24.)
South Korea has a history of collecting protected U.S. information.  It ranks as one
of the seven countries most actively engaging in foreign economic collection and
industrial espionage against the United States.
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 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
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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).
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.
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Here, Paragraphs 7(a) and 7(b) are arguably applicable: 7(a) “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 7(b) “connections to a foreign person . . 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 . . . by
providing that information.”  The Applicant’s wife, her mother and her three siblings are
citizens and residents of South Korea.  These are clearly countered, however, by the first
and second mitigating conditions, as 8(a) “the nature of the relationships with foreign
persons, . . . 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 8(b) “there is no conflict of interest [as] the individual has such deep and
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.”  Apart from his wife,
Applicant has little contact with his Korean in-laws.  His wife is a U.S. resident alien, who
intends to obtain U.S. citizenship once they return to the United States at the conclusion
of his current employment contract in South Korea.
Paragraph 7(e) is also arguably applicable, as there is “a substantial property
interest,” a $60,000 apartment, in South Korea, “which could subject the individual to
heightened risk of foreign influence or exploitation.”  This is clearly countered by
Paragraph 8(f) as the “property interests is such that they are unlikely to result in a
conflict and could not be used effectively to influence, manipulate, or pressure the
individual.”  Applicant’s property interest in South Korea pales in comparison to his more
than one million dollars of net worth in the United States.
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.
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I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Applicant is most highly regarded by those
who work with him in South Korea.  (AppX I at pages 6~18, AppXs M and O.)  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.
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
Subparagraphs 1.a.~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 security clearance.
Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge