1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) -------------------------------- ) ISCR Case No. 16-01544 ) ) Applicant for Security Clearance ) Appearances For Government: Pamela C. Benson, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ HOWE, Philip S., Administrative Judge: On August 18, 2015, Applicant submitted her Electronic Questionnaire for Investigations Processing (e-QIP). On July 8, 2016, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns alleging facts that raise security concerns under Guidelines C and B.1 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, effective June 8, 2017. Applicant acknowledged receipt of the SOR on July 13, 2016. She answered the SOR in writing on July 18 2016, and requested a hearing before an administrative 1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines, effective September 1, 2006. 2 judge. Department Counsel was prepared to proceed on February 1, 2017, and I received the case assignment on February 27, 2017. DOHA issued a Notice of Hearing on February 27, 2017, and I convened the hearing as scheduled on March 14, 2017. The Government offered Exhibits 1 through 3, which were received without objection. Applicant testified and submitted Exhibits A through J, without objection. DOHA received the transcript of the hearing (Tr.) on March 22, 2017. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted. Findings of Fact Applicant admitted to the allegations in SOR Subparagraph 1.a, and 2.a to 2.d. She denied SOR allegation Subparagraph 2.e. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 35 years old and divorced. She has one child who is 12 years old. Applicant was married and divorced from two U.S. citizens. She seeks a security clearance to obtain a linguist position with a U.S. government contractor. Applicant has a college degree in criminal justice. She served in the U.S. Army from 2002 to 2006 and received an Honorable Discharge. Applicant became a naturalized U.S. citizen on June 8, 2004. She was born in Romania and departed there at the age of 17. (Tr. 11-32, 52; Exhibits 1-3) Applicant lived in Romania from 2013, after her second divorce, until she returned to the United States in May 2015. She did not find a worthwhile job situation in Romania in those years and sought more opportunity in the United States. While in Romania she had a low-paying job with a transportation company. Her son went with her to Romania and remained there until May 2016, when he returned to the United States. He is enrolled in school in Applicant’s town of residence (Subparagraph 2.c). Her son is a native-born U.S. citizen who is fluent in English and Romanian. He prefers the United States. When Applicant and her son lived in Romania they lived with her parents. Now Applicant and her son live in an apartment in the United States. (Tr. 32- 37, 43; Exhibits 1-3) Applicant is a U.S. citizen, but presently is considered by Romania to be a dual U.S.-Romania citizen. She is willing to renounce her Romanian citizenship. She turned in her expired Romanian passport two years ago to her employer for destruction. While living in Romania from 2013 to 2015, she obtained a Romanian identity card she could use to open bank accounts and transact other business in Romania. She provided a copy of the card as part of the U.S. government background investigation. Applicant opened a Romanian bank account while she lived there so that she had an account into which she could deposit the child support money sent to her by her former husband. 3 She closed that account in 2015, when she returned to the United States (Subparagraph 2.e). (Tr. 38-43, 49; Exhibits 1-3) While living in Romania she went with her parents and voted in the Romanian presidential election in November 2014 (Subparagraph 1.a). That was the only Romanian election in which she voted. She has voted in U.S. Federal and state elections since 2008. (Tr. 43, 60, 61; Exhibits 1-3) Applicant’s father is a retired colonel in the Romanian Army. Her father attended the U.S. Army Armor School at Ft. Knox, Kentucky, and then served as a military staff member at the Supreme Headquarters Allied Powers Europe (SHAPE) in Belgium for four years. Applicant attended high school in Belgium while her father was stationed there. Applicant submitted exhibits showing her father’s military record. He receives a military pension from the Romanian government. Applicant’s mother formerly worked in a bank in Romania but now is retired. Applicant also has a brother living and working in Romania. He is employed by a transportation company. All three of her family members are citizens of and residents in Romania (Subparagraphs 2, a, b, and d). Applicant speaks by telephone or email to her mother daily, her father weekly, and her brother monthly. (Tr. 44-65; Exhibits 1-3, A-I) Applicant submitted a character reference letter from a former instructor at the university from which she obtained her criminal justice degree in the United States. The instructor wrote that Applicant was conscientious, hard-working, and an excellent critical thinker. She also describes Applicant as compassionate and fair-minded person, who is a good parent to her son. (Exhibit J) 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 to be used 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 overarching adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(a), 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 4 decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person who applies for access to classified information seeks to enter 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 EO 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 C, Foreign Preference The security concern relating to the guideline for Foreign Preference is set out in AG ¶ 9: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the interests of the United States. Foreign involvement raises concerns about an individual's judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself, the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen's exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship. The guideline notes several conditions that could raise security concerns under AG ¶ 10. The following are potentially applicable in this case: 5 (a) applying for and/or acquiring citizenship in any other country; (b) failure to report, or fully disclose when required, to an appropriate security official, the possession of a passport or identity card issued by any country other than the United States; (c) failure to use a U.S. passport when entering or exiting the U.S.; (d) participation in foreign activities, including but not limited to: (1) assuming or attempting to assume any type of employment, position, or political office in a foreign government or military organization; and (2) otherwise acting to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests; (e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law; and (f) an act of expatriation from the United States such as declaration of intent to renounce U.S. citizenship, whether through words or actions. Applicant may be a dual citizen of the United States and Romania, but she has surrendered her Romanian passport and considers herself only a U.S. citizen. Her son is a U.S. citizen. Her Romanian citizenship came from her birth 35 years ago in that country. Applicant reported and provided a copy of a Romanian identity card she used while after living there briefly after her second divorce. There is no evidence that she used her Romanian citizenship for financial advantage or acted in any way to indicate a preference for Romania over the United States. She has been a U.S. citizen since 2004. The evidence is insufficient to raise the above disqualifying conditions. Conditions that could mitigate foreign preference security concerns are described under AG ¶ 11. None are potentially applicable because there is no disqualifying condition that applies to Applicant. If any mitigating condition were to apply, then AG ¶ 11 (a to f) would apply. The mitigating conditions under AG ¶ 11 are: (a) the foreign citizenship is not in conflict with U.S. national security interests; (b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference; (c) the individual has expressed a willingness to renounce the foreign citizenship that is in conflict with U.S. national security interests; 6 (d) the exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen; (e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern; (f) the foreign preference, if detected, involves a foreign country, entity, or association that poses a low national security risk; (g) civil employment or military service was authorized under U.S. law, or the employment or service was otherwise consented to as required by U.S. law; and (h) any potentially disqualifying activity took place after receiving the approval by the agency head or designee. Guideline B, Foreign Influence The security concern relating to the guideline for Foreign Influence is set out in AG ¶ 6: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism. The guideline notes several conditions that could raise security concerns. AG ¶ 7. a, b, e, and f are potentially applicable in this case: (a) contact, regardless of method, 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; (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology; 7 (e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion; and (f) substantial business, financial, or property interests in a foreign country, or in any foreign owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest. Applicant has three family members who are citizens of and resident in Romania, where she was born. Applicant is a U.S. citizen who left home at the age of 17 years. She has lived in the United States, or at military stations in other countries with her two husbands, until she returned to Romania in 2013 after her second divorce. In 2015, she returned to the United States to live and work. Her familial connections create a heightened risk of Romanian exploitation, inducement, manipulation, pressure, or duress because of her father’s military associations. Applicant had a bank account in Romania for two years. The amounts in the account were not specified. The evidence is sufficient to raise these disqualifying conditions. AG ¶ 8 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 8 including: (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 United States; (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; and (f) the value or routine nature of the foreign business, financial, or 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 family members are Romanian citizens living in that country. Her parents are retired. Her younger brother works for a private company. Applicant’s father served in the SHAPE headquarters in the 1990s and trained with the U.S. Army. Even with her frequent telephone contact with her parents, their retired status and Applicant’s positive attitude toward the United States it is unlikely she will be placed in a situation 8 where she will have to choose between her family’s interests and Romania’s interests, and those of the United States. AG ¶ 8(a) is established. There is no conflict of interest between Applicant’s dedication and affection for the United States and her family connections. She has demonstrated her loyalty and obligation to the United States by her U.S. Army service and her U.S. citizenship that she values over any connections to Romania and her family. AG ¶ 8(b) is established. The value of Applicant’s former bank account in Romania is so minimal that it is not a consideration in her foreign preference evaluation. She closed the account and prefers the United States for residence and the raising of her son. There is no conflict because of any financial association Applicant may have or had had and it cannot be used to manipulate, influence, or pressure the individual. AG ¶ 8(f) is established. 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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): (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. 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. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guidelines C and B in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment. Applicant’s testimony about her history and family situation makes it clear she is dedicated to the United States and prefers it over her country of birth, Romania. She left Romania when she was 17 and now is 35 years old. Her son is a U.S. citizen. She is dedicated to working for the United States and living in it. There is no issue of any preference for Romania or the possibility of any adverse foreign influence on Applicant, based on her life’s work and performance to date. Applicant can be expected to resolve any conflict of interest in favor of the United States due to her longstanding ties here, particularly with her son. 9 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 Foreign Preference and the Foreign Influence security concerns. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are: Paragraph 1, Guideline C: FOR APPLICANT Subparagraph 1.a: For Applicant Paragraph 2, Guideline B: FOR APPLICANT Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant Subparagraph 2.c: For Applicant Subparagraph 2.d: For Applicant Subparagraph 2.e: 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. ________________________ Philip S. Howe Administrative Judge