DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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[NAME REDACTED] )       ISCR Case No. 15-08866
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Applicant for Security Clearance )
Appearances
For Government: Braden Murphy, Esq., Department Counsel
For Applicant: Pro se
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Decision
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MALONE, Matthew E., Administrative Judge:
Available information is sufficient to mitigate the security concerns about
Applicant’s security violations and by the presence of family members in China.
Applicant’s request for a security clearance is granted.
Statement of the Case
On April 3, 2015, Applicant submitted an Electronic Questionnaire for
Investigations Processing (EQIP) to obtain or renew a security clearance required for
his employment with a defense contractor. Based on the results of the ensuing
background investigation, Department of Defense (DOD) adjudicators could not
determine that it is clearly consistent with the national interest for Applicant to have a
security clearance.  1
On February 29, 2016, DOD issued a Statement of Reasons (SOR) alleging facts
which raise security concerns addressed under the adjudicative guidelines  for security2
violations (Guideline K) and foreign influence (Guideline B). Applicant timely responded
  Required by Executive Order 10865, as amended, and by DOD Directive 5220.6 (Directive), as amended.1
 The adjudicative guidelines were implemented by the Department of Defense on September 1, 2006. These2
guidelines were published in the Federal Register and codified through 32 C.F.R. § 154, Appendix H (2006). 
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to the SOR (Answer) and requested a decision based on the written record in lieu of a
hearing. However, Department Counsel for the Defense Office of Hearings and Appeals
(DOHA) timely requested a hearing, and the case was assigned to me on June 22,
2016. 
I convened a hearing in this matter on August 9, 2016. The parties appeared as
scheduled. Department Counsel presented Government Exhibits (Gx.) 1 - 5.  Applicant3
testified in his own behalf and submitted Applicant’s Exhibits (Ax.) A and B. All exhibits
were admitted without objection. Additionally, Department Counsel requested that I take
administrative notice of certain facts about the Peoples Republic of China that might be
germane to this adjudication. That request is supported by a legal memorandum and
eight attached documents included in the record as Hearing Exhibit (Hx.) 2. A transcript
of the hearing (Tr.) was received on August 18, 2016.
Findings of Fact
Under Guideline K, the Government alleged that in October 2012, Applicant
committed a security violation by bringing a cell phone into a secure facility and failing to
report it before the phone was discovered during a spot inspection (SOR 1.a); that in
September 2013, Applicant committed a security violation by failing to discover a
classified compact disc while closing a secure area at the end of the workday (SOR
1.b); that on December 18, 2014, Applicant was fired from his job after three times
committing security violations by “tailgating” to gain access to a secure space despite
being twice warned about such procedural violations (SOR 1.c). 
Under Guideline B, it was alleged that Applicant’s son lives in the People’s
Republic of China (China) and is married to a citizen of China (SOR 2.a); and that
Applicant’s daughter-in-law is a citizen and resident of China enrolled as a graduate
student at a Chinese university (SOR 2.b). 
In response, Applicant admitted, with explanations, all of the SOR allegations. In
addition to the facts thus established, I make the following findings of fact.
Applicant is 55 years old and has worked in the defense industry as a software
engineer for more than 30 years. He has held a security clearance for most of his
career. Applicant was married from 1986 until divorcing in 2009. He has two adult
children from that marriage. Applicant remarried in December 2014. (Gx. 1)
Applicant worked at Company A from December 2003 until leaving in response
to a reduction in force (RIF) in March 2014. He then was hired by Company B in March
2014, but was laid off in another RIF in October 2014. He immediately found work with
Company C, but as alleged in SOR 1.c, he was terminated from that job in December
2014. Applicant submitted his EQIP after receiving a job offer from Company B that is
contingent on the outcome of this adjudication. Since January 2015, he has been
supported by his current wife. (Gx. 1; Gx. 2; Tr. 67 - 69)
Applicant’s son moved to China in 2013 to teach English. In 2014, Applicant’s
son married a Chinese citizen who studies dance at a Chinese university. They recently
had a baby, for whom Applicant’s son obtained U.S. citizenship through the U.S.
embassy in China. In January 2016, Applicant’s son was accepted to study for his
 Included as Hearing Exhibit (Hx.) 1 is a list identifying Gx. 1 - 5.3
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doctorate at a university in Hong Kong. He was scheduled to matriculate in September
2016. Applicant believes his son will reside in Hong Kong while his daughter-in-law and
grandchild live with her parents on mainland China about an hour away by train. She is
enrolled there in graduate studies related to the fine arts. Applicant talks with his son a
few times a year via video but has not visited his son and his family in China. He has no
plans to do so as he does not feel comfortable traveling to “a third world country.”
Applicant’s son and daughter-in-law last visited him in the United States in July 2016.
They have no plans to come to the United States until both have completed their post-
graduate educations in China. Applicant does not feel that he could be coerced to act
contrary to U.S. interests if a foreign government pressured or manipulated his son.
(Answer; Gx. 1; Gx. 2; Ax. B; Tr. 57 - 60, 70 - 74, 104 - 109)
To properly assess the security significance of these facts within the adjudicative
guidelines at issue, I have taken administrative notice of certain facts regarding China.
China is an increasingly industrialized world economic and military power. The country
has a population in excess of one billion people who are governed by an authoritarian,
Communist regime. Geographically vast and demographically diverse, the country has
significant natural resources to help support its growing economy. China devotes most
of its industry and domestic production to its military forces, and it has a strategic
nuclear arsenal. China is in direct competition with the United States in many
geopolitical and economic areas, and it is known to actively collect military, economic
and industrial information about the United States. In 2007, it was reported to Congress
that China was the leading threat to the security of U.S. technology. (Hx. 2)
Nonetheless, China and the U.S. also are major trading partners and share other
common interests. For example, the two countries have worked closely on regional
issues, especially those involving North Korea. However, China is one of the most
active collectors of U.S. defense information and technology. The Chinese government
has an abysmal human rights record. Officials continue to engage in suppression of
personal and electronic expressions of political dissent. Arbitrary arrest and detention,
forced confessions, torture, and other prisoner mistreatment are commonplace.
Government and law enforcement practices are largely unchecked by any independent
judicial review. (Hx. 2)
For much of his career, Applicant has worked in secure compartmented
information facilities (SCIF). Access to these rooms, including what may be brought into
or removed from them, as well as storage of classified information within SCIFs are
subject to specific procedures both industry wide and as established locally for each
facility. Applicant committed two security violations while working for Company A. In
October 2102, Applicant inadvertently brought his cell phone into a SCIF in violation of
procedures governing cell phones for that facility. He discovered the device at the
bottom of his briefcase. Rather than immediately disclose his violation, he left the SCIF
intending to put the phone in his car. However, the phone was discovered by security
during a spot check of bags and Applicant was assessed a security violation. (Answer;
Gx. 1; Gx. 2)
In September 2013, Applicant was cited for a security violation because he had
failed to notice an unsecured classified compact disc while securing a SCIF at the end
of the work day. Applicant had performed this duty without incident at least 30 times
before. This was a rotating duty assignment in which Applicant was periodically required
to ensure that computers and materials at more than 100 workstations were properly
secured before setting an access alarm to secure the entire space. A co-worker who
opened the space the next morning saw the classified disc on top of a cabinet and
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reported that it was not properly secured. Applicant agreed that this was a violation, but
explained that the disc belonged to a newly-hired co-worker. Applicant was counseled
about the violation and received refresher training on applicable procedures but
eventually asked to be removed from the SCIF securing rotation. (Answer; Gx. 1; Gx. 2;
Tr. 41 - 45, 76, 91 - 99)
After Applicant left Company B in October 2014, he was hired by Company C for
similar work at the same job site where he had worked while employed by Company A
and Company B. Applicant committed three violations, one in October 2014, and two in
December 2014. His violations commonly referred to as “tailgating.” This occurs when
an employee enters a secure space, but accesses the space by incorrect means. The
term “tailgating” usually refers to accessing a space that is regulated by swiping a
badge, but the offender, who has not swiped his or her badge, follows close behind
another person who has properly accessed the space. In this case, Applicant, a new
employee who had not yet received his access credentials, was required to be escorted
by someone authorized to do so. His October infraction appears to have been one of
mis-communication and confusion. He was escorted to his workstation, but his escort
did not stay with him. He subsequently received training and counseling about the
proper procedures. By December, Applicant had still not received his credentials and
still required an escort. He entered the SCIF thinking an escort was available, and
signed a log book to record his presence in the space with an escort. Unfortunately, he
was mistaken about the escort and immediately left the space without venturing beyond
the entryway where the log book was located. He did not venture into the work area of
the SCIF where classified information was located, and he was not in the space more
than a few minutes. A short while later, he was escorted back into the SCIF by a
government employee, who noticed Applicant had already signed in. Applicant was
cited for a violation based on his log book entry. (Answer; Gx. 1 - 4; Tr. 45 - 57, 81 - 90,
99 - 104)
Applicant was fired by Company C on December 18, 2014, because of his
security violations. In January 2015, he was offered an opportunity to return to
Company B, contingent on his qualification for a security clearance. The facility security
officer (FSO) at Company B stated in a letter of recommendation that Applicant had no
security violations during his tenure with Company B. He also observed that Applicant
was reliable in his handling of classified information and with space access procedures,
and that he never improperly entered controlled spaces. The FSO called Applicant “a
model employee when dealing with sensitive and classified information.” (Gx. 1; Gx. 3;
Ax. A; Tr. 67 - 69) 
Applicant and his wife both suffer from multiple sclerosis (MS), although his
wife’s condition is more advanced and she is unable to work. They have a good
reputation in the community through their participation in activities at their church. (Ax.
A; Tr. 67, 110)
Policies
Each security clearance decision must be a fair, impartial, and commonsense
determination based on examination of all available relevant and material information,4
and consideration of the pertinent criteria and adjudication policy in the adjudicative
guidelines (AG). Decisions must also reflect consideration of the factors listed in ¶ 2(a)
 See Directive. 6.3.4
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of the guidelines. Commonly referred to as the “whole-person” concept, those factors
are:
(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 presence or absence of a disqualifying or mitigating condition is not
determinative of a conclusion for or against an applicant. However, specific applicable
guidelines should be followed whenever a case can be measured against them as they
represent policy guidance governing the grant or denial of access to classified
information.
A security clearance decision is intended only to resolve whether it is clearly
consistent with the national interest  for an applicant to either receive or continue to5
have access to classified information. The Government bears the initial burden of
producing admissible information on which it based the preliminary decision to deny or
revoke a security clearance for an applicant. Additionally, the Government must be able
to prove controverted facts alleged in the SOR. If the Government meets its burden, it
then falls to the applicant to refute, extenuate or mitigate the Government’s case.
Because no one has a “right” to a security clearance, an applicant bears a heavy
burden of persuasion.  A person who has access to classified information enters into a6
fiduciary relationship with the Government based on trust and confidence. Thus, the
Government has a compelling interest in ensuring each applicant possesses the
requisite judgment, reliability and trustworthiness of one who will protect the national
interests as his or her own. The “clearly consistent with the national interest” standard
compels resolution of any reasonable doubt about an applicant’s suitability for access in
favor of the Government.7
Analysis
Handling Protected Information
The Government established its case through sufficient and reliable information
that supports the SOR allegations under this guideline. The facts established by this
record reasonably raise a security concern about Applicant’s finances that is addressed,
in relevant part, at AG ¶ 33, as follows:
Deliberate or negligent failure to comply with rules and regulations for
protecting classified or other sensitive information raises doubt about an
individual's trustworthiness, judgment, reliability, or willingness and ability
to safeguard such information, and is a serious security concern.
 See Department of the Navy v. Egan, 484 U.S. 518 (1988).5
 See Egan, 484 U.S. at 528, 531.6
 See Egan; AG ¶ 2(b).7
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Applicant’s security violations did not result in the loss or compromise of
classified or other protected information. Nonetheless, on at least five occasions
between 2012 and 2014, Applicant violated procedures intended to help safeguard
classified information. Available information requires application of the disqualifying
conditions at AG ¶¶ 34(g) (any failure to comply with rules for the protection of classified
or other sensitive information) and 34(h) (negligence or lax security habits that persist
despite counseling by management).
By contrast, available information supports application of the mitigating condition
at AG ¶ 35(a):
so much time has elapsed since the behavior, or it happened so
infrequently or under such unusual circumstances that it is unlikely to
recur or does not cast doubt on the individual's current reliability,
trustworthiness, or good judgment.
Applicant’s security violations occurred over a relatively brief period when
compared to his long career working with classified information. Also, his violations were
inadvertent. The worst that can be said is that, as to SOR 1.a, he should have reported
his own violation after realizing he had brought his cell phone into a secured space. No
information was removed from any of the spaces where he worked; no information was
compromised; and all of the violations are reasonably attributable to mistake and mis-
communication. On balance, the security concerns under this guideline are resolved for
the Applicant.
Foreign Influence
The security concern about foreign influence is stated at AG ¶ 6:
[f]oreign 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
any foreign interest. Adjudication under this Guideline can and should
consider the identity of the foreign country in which the foreign contact or
financial interest is located, including, but not limited to, such
considerations as whether the foreign country is known to target United
States citizens to obtain protected information and/or is associated with a
risk of terrorism.
More specifically, available information requires consideration of the following AG
¶ 7 disqualifying conditions:
(a) contact with a foreign family member, business or professional
associate, friend, or other person 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 
(b) connections to a foreign person, group, government, or country 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, group, or country by providing that information.
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The SOR is supported by reliable information that showed he has close family
ties to citizens of China who still reside there. The presence of his son, daughter-in-law
and grandchild in China presents a heightened risk of coercion or exploitation. AG ¶¶
7(a) and 7(b) apply.
Available information also requires application of the following AG ¶ 8 mitigating
conditions:
(a) the nature of the relationships with foreign persons, the country in
which these persons are located, or the positions or activities of those
persons in that country 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, group, organization, or government and the interests of the
U.S.;
(b) there is no conflict of interest, either because the individual's sense of
loyalty or obligation to the foreign person, group, government, or country is
so minimal, or 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; and
(c) contact or communication with foreign citizens is so casual and
infrequent that there is little likelihood that it could create a risk for foreign
influence or exploitation.
Appellant’s family ties, although close, are not likely to cause a conflict between
his obligation to protect classified information and the interests of the Chinese
government. Appellant is a native-born U.S. citizen who has held a security clearance
for most of his adult life. He has seen his son, daughter-in-law and grandchild once
since his son moved to China a few years after graduating college. Other contact with
them consists of a few video calls annually. Applicant’s son is living his own life
overseas and does not rely on Applicant for support.  Applicant has no interest in visting
his son in China and is firmly ensconced in the United States. His son and daughter-in-
law have no connections past or present to any foreign government. On balance, I
conclude available information sufficiently mitigates the security concerns about
Appellant’s son and daughter-in-law in China.
I also have evaluated this record in the context of the whole-person factors listed
in AG ¶ 2(a). Applicant has a long career as a defense contractor. He was candid and
forthcoming in his answers to pertinent questions in his EQIP and during his subject
interview. The security violations at issue here occurred over a relatively brief period,
and did not result from deliberate attempts to circumvent procedures. The presence of
his son in China, while a reasonable cause for concern, is not likely to cause Applicant
to act contrary to the national interest. A fair and commonsense assessment of the
record as a whole shows the security concerns raised by the Government’s information
are mitigated.
Formal Findings
Formal findings 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 K: FOR APPLICANT
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Subparagraphs 1.a - 1.c: For Applicant
Paragraph 2, Guideline B: FOR APPLICANT
Subparagraphs 2.a - 2.b: For Applicant
Conclusion
In light of all of the foregoing, it is clearly consistent with the national interest for
Applicant to have access to classified information. Applicant’s request for a security
clearance is granted.
                                       
MATTHEW E. MALONE
Administrative Judge
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