DATE: May 15, 2001

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SSN: ------------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ROBERT ROBINSON GALES

APPEARANCES

FOR GOVERNMENT

Martin H. Mogul, Esquire, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Thirty-six year old Applicant's voting in a British election, service with the Royal Navy during 1982-89, and use of a British passport, all of which occurred while he was a British citizen, and prior to becoming an American citizen in July 1997, when he took an oath of citizenship and renounced other allegiances, while relevant under the whole person concept, in this instance, are no longer of security concern. The retention of the British passport after he became an American citizen--without any use--until he surrendered it to the authorities in January 2001 cannot be considered merely in isolation, but should be analyzed in light of all the facts and circumstances to determine if an applicant is demonstrating a foreign preference within the meaning of Guideline C. Under the specific facts in evidence herein, the Government's security concerns have been mitigated by Applicant's strong preference for, and demonstrated loyalty and allegiance to, the United States, over the United Kingdom; and his expressed unequivocal belief that he had already renounced his British citizenship. Clearance is granted.

STATEMENT OF THE CASE

On October 4, 2000, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, "Safeguarding Classified Information Within Industry," dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, "Defense Industrial Personnel Security Clearance Review Program" (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an Administrative Judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn written statement, dated October 13, 2000, Applicant responded to the allegations set forth in the SOR, and requested a hearing. The case was initially assigned to Administrative Judge John G. Metz, Jr., on December 7, 2000, but, due to caseload considerations, was subsequently reassigned to, and received by, this Administrative Judge on December 26, 2000. A notice of hearing was issued on December 28, 2000, and the hearing was held before me on January 23, 2001. During the course of the hearing, three Government exhibits and six Applicant exhibits, and the testimony of one Applicant witness (the Applicant), were received. The transcript (Tr.) was received on February 8, 2001.

Applicant has admitted two of the three factual allegations pertaining to foreign preference under Criterion C (subparagraphs 1.b. and 1.c.). Those admissions are incorporated herein as findings of fact.

After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 36 year old male employed by a defense contractor, and he is seeking to obtain a security clearance, the level of which has not be revealed.

Applicant was born in 1964 in Scotland, a political division of the United Kingdom--a nation whose interests are not inimical to the United States. He exercised the rights and privileges, and performed the responsibilities, of a citizen of the United Kingdom. He attended school there; voted in one election when he was about 18 years of age; ⁽¹⁾ and served on active military service with the Royal Navy for nearly seven years commencing in 1982. ⁽²⁾

In December 1985, during an official visit of his ship to a port city in the United States, Applicant met a young lady who was a native-born American citizen, and a relationship eventually developed and flourished between them. ⁽³⁾ In April 1988, while in the United States, and still on active duty, Applicant and the young lady were married. ⁽⁴⁾ Upon the completion of his military obligation in January 1989, Applicant returned to the United States, this time as a resident alien, and took up residence with his new wife. ⁽⁵⁾ He and his wife are now the parents of two children, with one born in June 1990, and the other in May 1992. ⁽⁶⁾

In July 1997, after completing the required immigration and naturalization citizenship process, Applicant became a naturalized citizen of the United States. ⁽⁷⁾ At the time he took his oath of allegiance and was granted his new citizenship, he was under the belief he had "personally relinquished [his] British citizenship." ⁽⁸⁾ He no longer considers himself to be a citizen of the United Kingdom. ⁽⁹⁾

Since becoming a permanent resident, Applicant has returned to Scotland on two occasions. ⁽¹⁰⁾ He and his family traveled there in June 1997, before he became an American citizen, ⁽¹¹⁾ and used his British passport. ⁽¹²⁾ He also traveled there in December 2000, after becoming an American citizen, and used his newly acquired United States passport. ⁽¹³⁾

Irrespective of having become an American citizen in July 1997, Applicant retained his old British passport. It had been issued to him in May 1995, and was scheduled to expire in May 2005. ⁽¹⁴⁾ He was unaware of the significance of possessing the foreign passport, or its potential impact on his obtaining or maintaining a security clearance, until it was recently briefly explained to him. While Applicant had expressed a willingness to relinquish his British passport in October 2000, and solicited advice from DOHA as to the appropriate course of action to follow to comply with the August 2000 passport policy "clarification" issued by the Assistant Secretary of Defense, Command, Control, Communications, and Intelligence (ASD/C³I), he received no such guidance. On his own initiative, after discussing the matter with his employer's security officer, on January 3, 2001, Applicant surrendered the British passport to the British Embassy. ⁽¹⁵⁾ As of the date of the hearing, Applicant no longer possessed a British passport.

Applicant has demonstrated a preference for, and loyalty and allegiance to, the United States, and has indicated a willingness to bear arms in its defense. ⁽¹⁶⁾ Furthermore, Applicant's spouse and both his children--all native-born United States citizens--reside in the United States, as does a brother who is a resident alien. The remainder of his family--his mother and two sisters, and their families--still reside in Scotland. ⁽¹⁷⁾

Applicant attended college in the United States and received two degrees, including a B.S. in Electrical Engineering in December 1998. He has been employed in his current position by a Government contractor since March 1999. The quality of his performance has not been characterized.

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Conditions).

An Administrative Judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision set forth in Section E.2.2., Enclosure 2, of the Directive, are intended to assist the Administrative Judge in reaching fair and impartial common sense decisions.

Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. The Adjudicative Process factors which an Administrative Judge should consider 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 voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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.

Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case:

[GUIDELINE C - FOREIGN PREFERENCE]: 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 be prone to provide information or make decisions that are harmful to the interests of the United States.

Conditions that could raise a security concern and may be disqualifying include:

(1) the exercise of dual citizenship;

(2) possession and/or use of a foreign passport;

(3) military service or a willingness to bear arms for a foreign country;

(8) voting in foreign elections.

Conditions that could mitigate security concerns include:

(1) dual citizenship is based solely on parents' citizenship or birth in a foreign country;

(2) indicators of possible foreign preference (e.g., foreign military service) occurred before obtaining United States citizenship;

(4) individual has expressed a willingness to renounce dual citizenship.

Since the protection of the national security is the paramount determinant, the final decision in each case must be arrived at by applying the standard that the issuance of the clearance is "clearly consistent with the interests of national security," ⁽¹⁸⁾ or "clearly consistent with the national interest." For the purposes herein, despite the different language in each, I have concluded that both standards are one and the same. In reaching this Decision, I have endeavored to draw only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have attempted to avoid drawing inferences that are grounded on mere speculation or conjecture.

In the decision-making process, the burden of producing evidence initially falls on the Government to establish a case which demonstrates, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. If the Government meets its burden, the heavy burden of persuasion then falls upon the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the Government's case, and to ultimately demonstrate that it is clearly consistent with the national interest to grant or continue the applicant's clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions under this Directive include, by necessity, consideration of the possible risk that an 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.

Upon consideration of all the facts in evidence, an assessment of the witness testimony, demeanor, and credibility, and after application of all appropriate legal precepts and factors, including those described briefly above, I conclude the following with respect to each allegation set forth in the SOR:

With respect to Criterion C, the Government has established its case. Applicant has been portrayed as a person who failed to formally renounce his British citizenship and acted in such a way as to indicate a preference for a foreign country--in this instance, the United Kingdom--over the United States, and in so doing, he may be prone to provide information or make decisions that are harmful to the interests of the United States. In support of its contentions, the Government has cited Applicant's "dual citizenship" with the United Kingdom and the United States; and his acceptance and use of a British passport.

While the Government has alleged Applicant is a "dual citizen" of the United Kingdom--derived from his birth in that country--and the United States, a fact disputed by Applicant, ⁽¹⁹⁾ it has not offered one scintilla of evidence--either as to fact or law--to support that allegation. Instead, it has surmised that Applicant's original British citizenship presumptively survived his acceptance of United States citizenship, notwithstanding Applicant's oath "in a public ceremony . . . to renounce and abjure absolutely and entirely all allegiance to any foreign prince, potentate, state or sovereignty of whom the applicant for U.S. citizenship was before a subject or citizen." ⁽²⁰⁾ That oath, formally taken at the July 1997 naturalization ceremony, and Applicant's subsequent statements, offer more positive proof of a renunciation of his British citizenship than conjecture by the Government as to a possible continuing "dual citizenship." Thus, there is evidence of two separate citizenships--British and American--but no evidence of a "dual citizenship" status. In my estimation, Applicant's status in this regard does not quite fall within foreign preference disqualifying condition (DC) E2.A3.1.2.1., and Applicant does enjoy the benefit of foreign preference mitigating condition (MC) E2.A3.1.3.1., and MC E2.A3.1.3.4.

In addition, the Government has argued the significance of Applicant's prior military service with the British Royal Navy, and thus his willingness to bear arms for the United Kingdom; and the exercise of "dual citizenship" arising from his possession and use of his British passport to facilitate his travel to the United Kingdom--travel which was not "sanctioned" by the United States. Based on my review of the evidence, I conclude the characterizations by the Government are ostensibly true, but largely misleading.

It is quite true Applicant seemingly exercised the rights and privileges, and performed the responsibilities, of a citizen of the United Kingdom--all before he became a citizen of the United States in July 1997. That conduct, while relevant under the whole person concept, in this instance, as a matter of law, cannot constitute the exercise of dual citizenship. ⁽²¹⁾ As indicated above, he attended school in Scotland; voted in an election there; and served on active military service with the British Royal Navy during 1982-89. Applicant's voting history and military service while solely a citizen of the United Kingdom are not of present security concern under DC E2.A3.1.2.3., and DC E2.A3.1.2.8., and Applicant does enjoy the benefit of MC E2.A3.1.2.

Applicant's allegiance to the United States has been questioned, and an allegation made that he prefers the United Kingdom over the United States. A review of the evidence reveals his allegiance and loyalty to the United States are resolute, and supported by significant indicia of same. Applicant has indicated a willingness to bear arms in the defense of the United States; he received his college education here; married a native-born citizen of the United States; has two minor children who are native-born citizens of the United States; has maintained a residence in the United States with his family since January 1989; is employed in the United States; and declared allegiance to the United States.

Of substantial significance to the Government is Applicant's obtaining a British passport in May 1995--two years before he became a naturalized American citizen, and keeping it, unused, after he became an American citizen in July 1997. The fact he possessed a British passport before July 1997, and may have even used it, is not material to this matter. What is of concern is that he kept the British passport after he became an American citizen, and did not surrender it to the authorities until January 2001. It is also significant that Applicant did not use the British passport after he became an American citizen. It is clear that possession of a foreign passport cannot be considered merely in isolation, but should be analyzed in light of all the facts and circumstances, "with the adjudicator needing to consider whether the facts and circumstances of possession reasonably indicate the applicant is demonstrating a foreign preference within the meaning of [Guideline] C." ⁽²²⁾

As noted above, in August 2000, ASD/C³I issued a passport policy "clarification." While the declared intent of the ASD/C³I memo was "to clarify the application of Guideline C to cases involving an applicant's possession or use of a foreign passport," the eventual result was an unmistakable change in the status quo. Because the memo superseded prior Appeal Board decisions concerning the possession and use of a foreign passport, some prior rulings were deemed to have applied law and/or policy which were no longer considered viable. One area for which further clarification or explanation might have been beneficial--what action constitutes a "surrender," and to whom or what entity does an applicant surrender the foreign passport--remains vague. In this regard, in October 2000, only two months after the memo was issued, but still not widely circulated, Applicant expressed a willingness to relinquish his British passport and, in writing, solicited advice from DOHA as to the appropriate course of action to follow to comply with the ASD/C³I memo. He received no such guidance. Thereafter, on his own initiative, following discussions with his employer's security officer, on January 3, 2001, Applicant surrendered the British passport to the British Embassy. ⁽²³⁾ As of the date of the hearing, Applicant no longer possessed a British passport.

Thus, the issue, distilled to its basic components, is: whether Applicant's passive action in merely possessing, but not using, his previously issued British passport from July 1997 until January 2001, constituted the exercise of dual citizenship or was indicative of a preference for the United Kingdom over the United States. It is clear the possession of the British passport after July 1997 falls within DC E2.A3.1.2.2. The ASD/C³I memo states there are no mitigating factors "related to an applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country," a phrase which I construe to relate solely to the use of a foreign passport, and not to mere possession of same. On the other hand, the memo states "consistent application of the guideline requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport. . . ." Applicant has already surrendered the British passport.

I had the opportunity to evaluate the demeanor of Applicant, observe his manner and deportment, appraise the way in which he responded to questions, assess his candor or evasiveness, read his statements, listen to his testimony, and watch the interplay between himself and those around him. It is my impression Applicant's explanations are both consistent and sincere, and have the solid resonance of truth. Thus, I conclude Applicant has, through evidence of extenuation and explanation, successfully mitigated and overcome the Government's case with respect to the issue of foreign preference. Accordingly, allegations 1.a. through 1.c. of the SOR are concluded in favor of Applicant.

For the reasons stated, I conclude Applicant is suitable for access to classified information.

Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive, are:

Paragraph 1. Guideline C: FOR THE APPLICANT

Subparagraph 1.a.: For the Applicant

Subparagraph 1.b.: For the Applicant

Subparagraph 1.c.: For the Applicant

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.

________________

Robert Robinson Gales

Chief Administrative Judge

1. Tr., at 27.

2. See Government Exhibit 1 (Security Clearance Application (SF 86), dated May 7, 1999), at 6. See also, Id., at 18.

3. See Government Exhibit 2 (Statement of Subject, dated November 2, 1999), at 1.

4. Ibid.

5. Tr., at 18, and 20.

6. Id., at 32.

7. See Government Exhibit 1, supra note 2, at 1. See also, Response to SOR, dated October 13, 2000.

8. Tr., at 32.

9. Id., at 33.

10. Tr., at 20.

11. Tr., at 21. But also see Government Exhibit 1, supra note 2, at 7, wherein Applicant indicated the trip occurred in June 1998--a date which he subsequently acknowledged was in error. See Tr., at 31.

12. Id., Tr. at 22. The passport had been issued to him in May 1995 while he was a British citizen and a resident alien of the United States. See Response to SOR, supra note 7, at 2.

13. Id., Tr. at 24. The passport was issued to him in November 1999. Id., Response to SOR, at 2.

14. Id., Response to SOR, at 2.

15. See Applicant Exhibit E (Letter to British Embassy, dated January 3, 2001); see also Applicant Exhibit F (Domestic Return Receipt, dated January 9, 2001).

16. See Government Exhibit 2, supra note 3, at 2-3.

17. Tr., at 28.

18. See Executive Order 12968, "Access to Classified Information;" as implemented by Department of Defense Regulation 5200.2-R, "Personnel Security Program," dated January 1987, as amended by Change 3, dated November 8, 1995. However, the Directive uses both "clearly consistent with the national interest" (see Sec. B.3; Sec. C.2.; and Sec. D.2.; Enclosure 3, Sec. 1.; and Sec. 25), and "clearly consistent with the interests of national security" (see Enclosure 2 (Change 3), Adjudicative Guidelines, at 2-2).

19. See Government Exhibit 1, supra note 2, at 1. See also Government Exhibit 2, supra note 3, at 2; and Response to SOR, supra note 7, at 1.

20. See 8 U.S.C. 1448(a) (1994).

21. See ISCR Case No. 97-0356 (Appeal Board Decision and Reversal Order, April 21, 1998), at 4. The Appeal Board in that case also commented: "[U]ntil Applicant became a naturalized U.S. citizen, his conduct could not reasonably be construed as indicat[ing] a preference for a foreign country over the United States within the meaning of Criterion C (Foreign Preference)."

22. See ISCR Case No. 97-0356, supra note 37, at 5-6.

23. See Applicant Exhibit E (Letter to British Embassy, dated January 3, 2001); see also Applicant Exhibit F (Domestic Return Receipt, dated January 9, 2001).