DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 14-04459
)
)
Applicant for Security Clearance )
Appearances
For Government: Mary M. Foreman, Esquire, Department Counsel
For Applicant: Pro se
March 30, 2016
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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 January 6, 2014.  On March 6, 2015, 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 answered the SOR in writing on March 21, 2015, and requested an
Administrative Determination by an administrative judge.  Department Counsel issued a
File of Relevant Material (FORM) on October 26, 2015.  Applicant’s undated response
to the FORM was received on November 27, 2015.  Department Counsel had no
objection, and the two document consisting only of additional argument is entered into
evidence.  The case was assigned to me on December 21, 2015.  Based upon a review
of the pleadings and exhibits, eligibility for access to classified information is denied.
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Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Paragraphs 1.a.~1.c. of the SOR, without explanations.  He denied, in part, the factual
allegations in Paragraphs 1.d. of the SOR, with explanations.
Guideline B - Foreign Influence
1.a.  Applicant’s mother is a citizen and resident of the People’s Republic of
China (China).  (Item 3 at pages 28~30.)  She is a “retired teacher.”  (Item 3 at page
29.)  He contacts her “Quarterly . . . [by] Telephone.”  (Id.)
1.b.  Applicant’s father is a citizen and resident of China.  (Item 3 at pages
29~30.)  He is a “retired HR director . . . [for a] Shipyard.”  (Item 3 at page 30.)  Like his
mother, Applicant contacts his father “Quarterly . . . [by] Telephone.”  (Id.)
1.c.  Applicant’s brother is a citizen and resident of China.  (Item 3 at pages
31~32.)  He is a “small furniture store owner.”  (Item 3 at page 32.)  Applicant contacts
and sees his brother “only [at] family re-union[s].”  (Id.)  Applicant’s oldest sister is a
citizen and resident of China.  (Item 3 at pages 32~34.)  She is a “Mechanic[al]
engineer.”  (Item 3 at page 34.)  Like his brother, Applicant contacts and sees his sister
“only [at] family re-union[s].”  (Id.)  Applicant’s youngest sister is a citizen and resident of
China.  (Item 3 at pages 34~35.)  She is a “Lab scientist.”  (Item 3 at page 35.)  Like his
other siblings, Applicant contacts and sees his sister “only [at] family re-union[s].”  (Id.)
1.d.  Applicant’s mother-in-law is a citizen of China, but resides in the United
States with Applicant’s immediate family.  (Item 3 at page 36~37.)  She is a “retired
factory worker.”  (Item 3 at page 37.)
I take administrative notice of the following facts.  China is one of the most
aggressive collectors of U.S. economic information and technology.  It frequently seeks
to exploit Chinese Americans with family ties to 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
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.
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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 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
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.”
Applicant’s parents and three siblings are citizens of and reside in China.  None of the
mitigating conditions apply.  In light of Applicant’s close and continuing family
connections with his Chinese parents and siblings in China, I find Foreign Influence
against the Applicant.
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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.
I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Overall, the record evidence leaves me
with questions and doubts as to Applicant’s eligibility and suitability for a security
clearance.  For this reason, I conclude Applicant has not mitigated the security concern
arising from his 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: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
_________________
Richard A. Cefola
Administrative Judge