DATE: November 19, 2002

-----------------------

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

APPEARANCES

FOR GOVERNMENT

Martin H. Mogul, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant's dual citizenship, including possession of a foreign passport, and substantial foreign contacts, including family ties, have not been mitigated. Clearance is denied.

STATEMENT OF THE CASE

On May 1, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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 the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on June 12, 2002, and requested a hearing before a DOHA Administrative Judge. This case was assigned to the undersigned on August 13, 2002. A notice of hearing was issued on September 4, 2002. The hearing was held on September 19, 2002, at which the Government presented three exhibits. The Applicant presented one exhibit. The Applicant called one witness to testify, and she also testified on her own behalf. The record was left open until September 25, 2002 to allow the Applicant an opportunity to provide additional evidence. The Applicant submitted one Post Hearing exhibit. The official transcript (Tr.) was received on September 27, 2002.

On August 16, 2000, a memorandum was issued by Mr. Arthur Money, Assistant Secretary of Defense for Command, Control, Communications and Intelligence, clarifying "the application of Guideline C to cases involving an Applicant's possession or use of a foreign passport." The Applicant received a copy of this memorandum. (See, Government Exhibit 3).

The following Findings of Fact are based on Applicant's Answer to the SOR, the Government's documents, and the testimony presented at the hearing. The Applicant is 43 years of age and married. She has a Master's Degree in Business Administration and is employed as a Director of Contracts Management for a defense contractor. She seeks a security clearance in connection with her employment in the defense industry.

Paragraph 1 (Guideline C - Foreign Preference). The Government alleges in this paragraph that the Applicant is ineligible for clearance because she has acted in such a way as to show a preference for another country over the United States.

The Applicant is a dual citizen of the United States and Romania. She was born to Romanian parents and raised in Romania. Tired of suffering harassments from the Communist regime in Romania, in 1987 she applied for political asylum in the United States. She lived in Germany for two years while awaiting approval of her application for asylum. In 1989, her application was approved, and she and her husband, also a Romanian citizen, moved to the United States. They have lived together in the United States since then.

The Applicant obtained her undergraduate degree in Romania, at no cost, at a state University. She obtained her graduate degree from a University in the United States in 1996. That same year, she became a naturalized United States citizen.

The Applicant admitted that after becoming a United States citizen in 1996, although she could have applied for a United States passport, in 1998 she renewed her Romanian passport. (Tr. p. 41). Her current Romanian passport will not expire until June 2003. The Applicant states, that the only reason she renewed her Romanian passport is because it was expiring, and for proof of her Romanian citizenship. (Government Exhibit 2). She states that she had no intentions to travel or to give preference to Romania. (Tr. p. 43). She further states that she brought her Romanian passport with her to the hearing, but was in such a hurry, she left it in the car. (Tr. p. 39).

In May 2001, the Applicant obtained a United States passport that will expire in 2011.

In October 2001, the Applicant provided a statement to the Defense Security Service (DSS) wherein she stated that she would be willing to renounce her Romanian citizenship and relinquish her Romanian passport if it is a requirement for her to hold a security clearance from the United States Department of Defense. (See, Government Exhibit 2).

The Applicant testified that since receiving notice of the Money Memorandum, her hectic work schedule has prevented her from doing anything about her Romanian passport. Additionally, she was not sure if she could do anything with her passport while the investigation was in process. She made some telephone calls to inquire, but no one could give her any information. In light of this, the record was left open for five days from the date of the hearing to give the Applicant one final opportunity to resolve the issues concerning her Romanian passport.

In response, the Applicant submitted one Post-hearing exhibit, consisting of a letter from her, and a certificate from the Consulate General of Romania dated September 20, 2002. The letter and certificate simply verify that the Applicant went to the Romanian Consulate to renounce her Romanian citizenship and surrender her passport. She was informed by the Consulate that they would need to check her Romanian criminal records first. She submitted the forms necessary to allow them to conduct the criminal investigation. (See, Applicant's Post Hearing Exhibit). However, there is no evidence in the record that the Applicant actually surrendered her Romanian passport.

Paragraph 2 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because she has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information.

The Applicant's husband is also a dual citizen of the United States and Romania. Her in-laws are citizens and residents of Romania. Her father-in-law, now deceased, was a career soldier in the Romanian military. Her mother-in-law, now retired, worked in public relations marketing for a clothing factory. Her husband's sister, also a Romanian citizen, resides in Romania. She is Vice President of Human Resources for an international company, and her husband is a self-employed artist. The Applicant and her husband are in contact with their family in Romania by telephone about once a month, and they exchange birthday and other greeting cards. (Tr. P. 52). The Applicant indicates that at some point, her husband may stand to inherit his parent's condominium in Romania.

The Applicant's brother is a citizen and resident of Germany. His teenaged daughter visited the Applicant for a month during the summer of 2000 and 2001.

The Applicant's parents were Romanian citizens. Her mother and sister now reside in the United States, and are United States citizens. Her father is deceased.

The Senior Vice President /Chief Financial Officer of the company with whom the Applicant is employed testified on her behalf of the Applicant. He indicates that the Applicant was initially hired for the position of Facility Security Officer. Her job later evolved into the Director of Contracts Administration, as she is familiar with all of the Government contracts under which the company operates. She is described as a diligent, very ethically conscientious professional who is highly effective on the job. She is considered honest, trustworthy and responsible. (Tr. pp. 63-64).

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent criterion. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on her own common sense. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

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:

1. The exercise of dual citizenship;

2. Possession and/or use of a foreign passport;

Conditions that could mitigate security concerns:

None.

A security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she may be bound by affection, influence, or obligation are: (1) not citizens of the United States or (2) may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

Conditions that could raise a security concern:

1. An immediate family member, or person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country;

2. Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists.

Conditions that could mitigate security concerns:

None.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances

b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination. The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

The Government must make out a case under Guideline C (foreign preference) and Guideline B (foreign influence) that establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between Applicant's adverse conduct and her ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

An individual who demonstrates a foreign preference and has foreign connections may be prone to provide information or make decisions that are harmful to the interests of the United States. The mere possession of a foreign passport raises legitimate questions as to whether the Applicant can be counted upon to place the interests of the United States paramount to that of another nation. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

Having considered the evidence of record in light of the appropriate legal standards and factors, and having assessed the Applicant's credibility based on her testimony, the witness, and the documents, this Administrative Judge concludes that the Government has established its case as to all allegations in the SOR, and that Applicant's foreign contacts have a direct and negative impact on her suitability for access to classified information.

The Applicant is a dual citizen of Romania and the United States. She holds two passports. Since becoming a citizen of the United States, she has lived and worked in the United States, but has maintained her dual citizenship status. She has exercised dual citizenship by obtaining a Romanian passport after having become an American citizen. Although she has expressed a willingness to renounce her foreign citizenship, the fact that she is still in possession of her Romanian passport precludes a finding that it is clearly consistent with the national interests to grant her access to classified information. The mere possession of a foreign passport raises legitimate questions as to whether she can be counted on to place the interests of the United States paramount to that of another nation.

My interpretation of the Money memorandum is that, in all cases involving an Applicant who has possessed or used a foreign passport, Guideline C requires a denial of the security clearance request unless the Applicant offers credible evidence that she (1) has obtained official approval for its use from the appropriate United States Government agency, or (2) has surrendered the passport. The Applicant has offered no such evidence. Accordingly, under the circumstances of this case, Applicant's request for a security clearance must be denied under Guideline C.

With respect to Guideline B, the Applicant has foreign contacts, as well as emotional and family ties, in Romania. Her husband is a dual citizen of the United States and Romania, and her mother-in-law, father-in-law and sister-in-law are citizens and residents of Romania of long standing. Her brother is a citizen and resident of Germany. The Applicant maintains contact with all of them on a monthly basis. There remains the possibility of pressure being placed on them, and through them, on the Applicant. It is Applicant's burden to show that these ties are not of a nature that could create the potential for influence that could result in the compromise of classified information. She has not done so. Accordingly, I cannot say that she would not be vulnerable to foreign influence. The risk is considerable, and is of present security significance. Accordingly, the Applicant's request for a security clearance must be denied under Guideline B.

Considering all the evidence, the Applicant has not met the mitigating conditions of Guideline C or Guideline B of the adjudicative guidelines set forth in Enclosure 2 of the Directive. Accordingly, she has not met his ultimate burden of persuasion under Guidelines C or B.

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

Paragraph 1: Against the Applicant.

Subparas. 1.a.: Against the Applicant

1.b.: Against the Applicant

Paragraph 2: Against the Applicant.

Subparas. 2.a.: Against the Applicant

2.b.: Against the Applicant

2.c.: Against the Applicant

Paragraph 3: Against the Applicant.

Subparas. 3.a.: Against the Applicant

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interests to grant or continue a security clearance for the Applicant.