1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 14-03779
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Pro se
May 29, 2015
______________
Decision
______________
CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on May 8, 2014.  On November 7, 2014, 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 November 19, 2014.  He
answered the SOR in writing on December 4, 2014, and requested a hearing before an
Administrative Judge.  The Defense Office of Hearings and Appeals (DOHA) received
the request soon thereafter, and I received the case assignment on March 2, 2015.
DOHA issued a notice of hearing on March 5, 2015, and I convened the hearing as
scheduled on April 10, 2015.  The Government offered Exhibit (GX) 1, which was
received without objection.  Applicant testified on his own behalf, as did his Senior
Project Leader, and submitted Exhibit (AppX) A, which was received without objection.
2
DOHA received the transcript of the hearing (TR) on April 20, 2015.  I granted
Applicant’s request to keep the record open until May 11, 2015, to submit additional
matters.  On May 1, 2015, he submitted Exhibit B, which was received without
objection.  The record closed on May 11, 2015.  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 the Republic of Korea (South Korea).  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, Applicant admitted the factual allegations in all the
Subparagraphs of the SOR, with explanations. 
Guideline B - Foreign Influence
At the age of 16, the 31 year-old Applicant immigrated to the United States with
his parents and with his younger brother.  (TR at page 20 line 17 to page 21 line 10.)
He attended high school and university in the United States, and became a naturalized
citizen at age of 18.  (TR at page 21 line 17 to page 22 line 20, and GX 1 at pages 5
and 7.)
1.a.  Applicant’s older sister is a citizen and resident of South Korea.  (GX 1 at
page 25.)  She has no connection with the South Korean government, working for a
“private insurance company,” and Applicant communicates with her about “once a year.”
(TR at page 30 line 15 to page 32 line 1, and at page 30 line 15 to page 32 line 1.)
1.b.  Applicant’s younger brother resides permanently in the United States, but
Applicant is unaware if his brother has yet to be naturalized as a U.S. citizen.  (TR at
page 26 line 15 to page 28 line 8.)  His brother was married in the United States and is
“an MRI Technician” at an American hospital.  (Id.)  Applicant has little contact with his
younger brother.  They last spoke “about five years ago.”  (TR at page 28 line 23 to
page 29 line 14.)
Applicant’s father is a citizen of South Korea, but resides permanently in the
United States with Applicant’s mother.  (TR at page 26 line 15 to page 28 line 8.)
Because of language difficulties, his father has been unable to pass his U.S. citizenship
exam.  (Id.)  His father is retired from “a dry cleaning business.”
3
1.c. Applicant’s mother is a dual national of South Korea and of the United
States, but resides permanently in the United States.  (TR at page 28 lines 11~22.)  She
is retired.  (TR at page 30 lines 1~3.)
I also take administrative notice of the following facts.  South Korea, an erstwhile
ally, generally respects “the human right of its citizens.”  However, it “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 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
4
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.
Here, Paragraph 7(a) is arguably 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.”  Applicant has a sister who is a citizen and resident of South Korea.  The rest
of his immediate family reside in the Unites States; but his mother is a dual national, his
father a citizen of South Korea, and his brother may be a citizen of South Korea.  This is
clearly countered, however, by the first mitigating condition 8(a), as“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.”  Applicant has lived in the United States since the age of
16, is a U.S. citizen, has been educated here, and has little connection with South
Korea.  He only communicates with his Korean sister about once a year.  His parents
are retired and his brother works for an American hospital.
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.
5
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 record shows that the Applicant understands his responsibility to the United
States, and he is highly touted by a Senior Project Leader at work.  (AppX A, and TR at
page 16 line 5 to page 18 line 24.)
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.
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
Subparagraph 1.c. 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