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        DEPARTMENT OF DEFENSE
DEFENSE OFFICE OF HEARINGS AND APPEALS
In the matter of: )
)
)       ISCR Case No. 15-04422
)
)
Applicant for Security Clearance )
Appearances
For Government: Andrew Henderson, Esquire, Department Counsel
For Applicant: Leon Schachter, Esquire
October 13, 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 October 14, 2014.  On January 19, 2016, 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 through counsel on February 10, 2016,
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 April 19, 2016.  DOHA issued a notice of hearing on May 3, 2016,
and I convened the hearing as scheduled on June 21, 2016.  The Government offered
Exhibits (GXs) 1 and 2, which were received without objection.  Applicant testified on his
own behalf, as did his first and second line supervisors, and submitted Exhibits (AppXs)
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A through S, which were received without objection.  DOHA received the transcript of
the hearing (TR) on June 29, 2016.  The record closed on June 29, 2016.  Based upon
a review of the pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
Request for Administrative Notice
Department Counsel and Applicant’s Counsel both submitted a formal request
that I take administrative notice of certain facts relating to the Republic of 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.  He also provided additional information
to support his request for eligibility for a security clearance.
Guideline B - Foreign Influence
Applicant is a native-born American; but when he “was two years old,” his
parents returned to Korea, the country of their birth, taking Applicant with them.  (TR at
page 21 line 2 to page 22 line 4.)  At the age of 27, “in [the] fall [of] 2006,” Applicant
returned to the United States to enter graduate school.  (TR at page 25 lines 6~10, and
GX 1 at pages 5 and 15.)  He has resided in the United States since returning, and has
earned both a Master’s Degree and a Ph. D.  (Tr at page 25 lines 6~10, and GX 1 at
pages 10~15.)
1.a.  Applicant’s 73-year-old mother and 77-year-old father, who are citizens of
and reside in Korea, are both “retired College Professors from private institutions,” and
they have no connection with the Korean government.  (TR at page 49 lines 2~6, and
GX 1 at pages 28~31.)  Applicant affirms that he would not jeopardize national security
vis-a-vis his parents.  (TR at page 65 line 21 to page 58 line 2.)  He contacts his parents
about “once a week.”  (AppX Q.)
1.b.  Applicant’s 23 year-old brother, who is a citizen of and resides in Korea, is a
“Banker,” and has no connection with the Korean government.  (TR at page 49 lines
6~9, and GX 1 at pages 31~32.)  Applicant affirms that he would not jeopardize national
security vis-a-vis his brother.  (TR at page 65 line 21 to page 58 line 2.)  He contacts his
brother about “once [every] two weeks.”  (AppX Q.)
1.c.  Applicant has infrequent contact with other citizens and residents of Korea,
as delineated on a very comprehensive list of “Foreign Contacts.”  (AppX Q.)  Of the ten
individuals he has contact with, his contact ranges from monthly to yearly.  (Id, TR at
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page 52 line 2 to page 55 line 20, and at page 59 line 15 to page 65 line 2.)  None of
these foreign contacts have any connection with the Korean government.  (Id.)
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 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 the applicant or proven by Department Counsel. . . .”  The
applicant has the ultimate burden of persuasion as to obtaining a favorable clearance
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
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permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
Section 7 of Executive Order 10865 provides that adverse 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, 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 parents and his brother are citizens and
residents of South Korea, and he has ten other foreign contacts with Koreans.  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 immediate family, Applicant has little contact with his
Korean associates.  His parents and brother have no connection with the Korean
government, and he would not jeopardize national security vis-a-vis these relatives.
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
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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.  Applicant is most highly regarded by those
who work with him, and those who know him through academia.  (TR at page 66 line 4
to page 74 line 21, and AppXs B, R, and S.)  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.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.
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Richard A. Cefola
Administrative Judge