DATE: August 26, 2002

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ELIZABETH M. MATCHINSKI

APPEARANCES

FOR GOVERNMENT

Kathryn D. MacKinnon, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant is a dual citizen of Poland and the United States since her United States naturalization in late June 2000. Immediate family members (parents and brother) remain resident citizens of Poland. While her brother is currently serving as an officer in the Polish military, her contact with him is casual and infrequent. The risk of undue foreign influence is minimal, given her limited contact with her brother and her parents' present lifestyle. Clearance is granted.

STATEMENT OF THE CASE

The Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended by Executive Orders 10909, 11328 and 12829) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 (as amended by Change 4), issued a Statement of Reasons (SOR) on April 23, 2002, to the 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 the Applicant. DOHA recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied or revoked. The SOR was based on foreign influence concerns (guideline B) related to the Polish citizenship and residency of her parents and brother, her brother's status as a Polish Army officer, and her parents' past employment with the Polish national police, which required their membership in the Communist Party in Poland.

On May 6, 2002, Applicant executed an Answer to the SOR in which she denied any risk of undue foreign influence and requested a hearing before a DOHA Administrative Judge. Her Answer was not considered responsive in that she failed to admit or deny the specific allegations set forth in the SOR. On May 31, 2002, Applicant submitted a response in which she admitted the factual allegations but denied her relatives in Poland posed a risk of undue foreign influence, and she reiterated her request for a hearing. The case was assigned to me on July 1, 2002, and pursuant to formal notice dated July 12, 2002, the hearing was scheduled for July 26, 2002. At the hearing held as scheduled, the Government's case consisted of four documents (security clearance applications and sworn statements from the Applicant). Applicant testified on her behalf and submitted two character reference letters, which were admitted without any objections from the Government. With the receipt on August 6, 2002, of the transcript of the hearing, the case is ripe for a decision.

FINDINGS OF FACT

After a thorough review of the evidence, and on due consideration of the same, I render the following findings of fact:

Applicant is a 32-year-old electrical engineer who has worked for a defense contractor (company A) since February 2001. Applicant was granted an interim security clearance in late February 2001, which she held until it was suspended on receipt of the SOR. Assigned responsibilities thereafter which do not require access to classified information, Applicant seeks a Secret security clearance so that she can continue her employment with company A. ⁽¹⁾

Applicant was born in Poland in February 1970 to resident citizens of that nation. Prior to their retirements in November 1990, Applicant's parents worked in nonuniformed positions for a local office of the Polish national police. Since the Polish national police agency was part of the internal security organization for Poland under the then Communist government, Applicant's parents were required to join the Polish Communist Party. Applicant's father was a coordinator in the motor pool in charge of fueling vehicles. Her mother, who had been an economist in a bank when she was younger, worked as an accountant in the payroll department. They took the jobs so that they would not have to wait in a long line for an apartment. In November 1990, her parents accepted offers of early retirement as there was no guarantee they would have had jobs after the Communists left the government.

As a teenager in Poland, Applicant's foreign travel was to other nations also under Communist rule. After completing her high school studies in Poland, Applicant enrolled in a polytechnic institute in Poland where she studied environmental engineering. Sometime during her second semester, Applicant dropped out of school and went to work as a retail clerk for about six months during the 1990/91 time frame. Interested in visiting the United States, Applicant applied unsuccessfully for a tourist visa in summer 1990. She reapplied, and with travel restrictions eased, a visa was granted to her in late July 1991.

From fall 1991 to January 1992, Applicant returned to the polytechnic institute where she studied computer science. In early February 1992, Applicant entered the United States on her Polish passport. Applicant stayed with a Polish friend (Ms. X) who she had known from her studies at the Polish polytechnic institute. While she was in the United States, Applicant responded to an advertisement in a local paper for a nanny. She was given the job, which was in a neighboring state. After five months, she quit and moved in with Ms. X and the latter's new husband. Applicant supported herself during this period from July 1992 to arch 1993 by working in a restaurant in the city. Having overstayed her tourist visa, Applicant remained in the United States illegally from about fall 1992 to at least spring 1994. Her parents and a brother, who was born in 1972, remained resident citizens of Poland.

In March 1993, Applicant moved upstate to work in a restaurant in a resort locale. After the business was destroyed by a fire in May 1993, Applicant took a job in a lodge in the area. That fall,

Ms. X introduced Applicant to a Polish national who was working as a chef in the same food establishment employing Ms. X. Applicant married this Polish citizen in the United States in October 1994. Sometime thereafter, Applicant acquired permanent residency status in the United States. ⁽²⁾ Applicant and her new spouse maintained a long distance relationship, as she continued to work in an inn upstate while he pursued his career in the city. Two years after their marriage, they were divorced. Applicant has had no contact with her ex-husband since 1998.

While residing and working in the resort area, Applicant became friendly with United States citizens who reside in Italy for about six months every year. Applicant stayed with them in Italy on several trips taken for pleasure, including in April 1995, October 1996, August 1997, August 1998, August 2000, and August 2001. On those trips taken prior to August 2000, Applicant traveled on a Polish passport.

Applicant continued to work part-time as a waitress at a local inn while she took courses at a local community college from August 1995 to May 1997, and at a polytechnic university in the United States from August 1997 to December 2000. Applicant received no financial support from her parents in Poland, and she financed her education through sizeable student loans as well as employment.

During semester breaks and over holidays, Applicant took several trips to Europe. In addition to her trips to Italy, Applicant traveled to Poland in June 1996 to see her parents. She spent a month in Poland the following summer when she returned for surgery. In December 1998, Applicant stayed with an aunt in Germany for ten days. In May 2000, she traveled to Poland for her brother's wedding. As a Polish citizen with permanent residency in the United States, Applicant traveled on her Polish passport, which she renewed in spring 2000 for another ten-year term. ⁽³⁾

In late June 2000, Applicant became a United States naturalized citizen, taking an oath to renounce all foreign allegiances, to support and defend the United States Constitution and its laws, and to bear arms or noncombatant service or civilian service on behalf of the United States if required. Applicant made no effort to notify the Polish authorities of her acquisition of United States citizenship, or to formally renounce her Polish citizenship or relinquish her Polish passport as no one suggested that she should do so.

In mid-July 2000, Applicant was issued a United States passport. Applicant used that passport on all subsequent foreign travels, including in preference to her Polish passport on a trip to Italy in August 2000.

In December 2000, Applicant was awarded a bachelor of science degree. Applicant accepted an offer of employment from company A. Prior to reporting for work, she was required to complete a security clearance application. On January 31, 2001, Applicant executed a Questionnaire for National Security Positions (SF 86) on which she reported her dual citizenship with the United States and Poland, her possession of Polish and United States passports, the Polish residency and citizenship of her parents and brother, and her foreign travel since August 1998. Applicant did not report the trips to Poland in June 1996 or June 1997, or her travel to Italy in April 1995, October 1996 or August 1997. Applicant submitted this SF 86 to company A security personnel.

On February 9, 2001, an electronic version of the SF 86 was generated from the information provided by Applicant on her handwritten SF 86. In response to question 15 regarding a foreign passport, security personnel at company A indicated, "TALKED WITH SUBJECT AND SHE SAID FOR NO REASON OTHER THAN BECAUSE THAT IS WHAT SHE STARTED OUT WITH. IF IT POSES A PROBLEM THEN SHE IS WILLING TO DO AWAY WITH IT." Applicant signed the SF 86, EPSQ version, on March 13, 2002, noting thereon her new address as well as correcting the address of her parents' residence in Poland.

Informed by company A security personnel that she would have to relinquish her foreign passport before starting work, Applicant on February 17, 2001, forwarded her foreign passport to the Polish consulate, indicating that she wanted to relinquish her Polish citizenship so that she could obtain a Defense Department security clearance. In her forwarding letter, Applicant asked the consulate to notify company A that she had surrendered her foreign passport. On February 23, 2001, Applicant contacted the foreign consulate telephonically and requested that the consulate notify company A of her submission to the consulate of her Polish passport. Initially not helpful, the consulate later in the day faxed to Applicant a letter confirming receipt of Applicant's foreign passport. The consulate provided Applicant with instructions for renouncing her foreign citizenship, which Applicant did not pursue because the process was complicated and expensive. ⁽⁴⁾

In late February 2001, Applicant went to work for company A as a project engineer. Applicant has proven to be a reliable, conscientious employee who has good relations with her coworkers. Her direct supervisor, who interviewed and hired her, has seen nothing in his dealings with her to believe she presents a security risk. Over the time frame from May 2002 to at least July 2002, Applicant was on-loan to another project. The engineering supervisor for this project also found Applicant to be highly competent with an excellent work ethic.

Applicant was interviewed by a Special Agent of the Defense Security Service in December 2001, about her foreign connections, including close relations living in Poland; her foreign travel; her emigration to, and employment in, the United States; and the circumstances under which she relinquished her Polish passport. Candid about her parents' past employments with the Polish national police agency until the Communist government fell from power, Applicant indicated her parents retired early in November 1990. She described contact with them by telephone once or twice per month. Applicant related her brother was an electronic engineer, currently serving in the Polish army as an officer. ⁽⁵⁾ Contact with him was limited to speaking with him twice per year when he happened to be at their parents' home when she called, and to occasional email correspondence from her home to his home computer. Regarding her renewal of her Polish passport, Applicant indicated she renewed the passport in spring 2000 before she became a United States naturalized citizen as she wanted to be able to travel if needed. She denied any use of that Polish passport after May 2000, and related she relinquished the foreign passport on the instructions of company A's security office. Applicant volunteered she had been sent an application and instructions for renouncing her Polish citizenship, but she had found the procedure too complicated and the cost too expensive, so she had taken no further action. On December 18, 2001, Applicant executed a signed, sworn statement containing the aforesaid representations.

On December 19, 2001, Applicant was reinterviewed to explain her contacts with the Polish government since February 1992. Applicant denied any contact with any Polish government employee until February 2001 when she relinquished her Polish passport at the request of her employer, and she provided the details of her contacts with the Polish consulate regarding the surrender of her foreign passport. Applicant maintained her primary loyalty was to the United States and she would not assist any foreign country, including Poland, in the event of a military conflict with the United States.

In March 2002, Applicant traveled on her United States passport to Poland to see her parents. Applicant also spent a day or so with her brother on that trip.

As of late July 2002, Applicant remained a dual citizen of the United States and Poland. She had taken no steps to formally renounce her Polish citizenship, as during her December 2001 interviews with the Defense Security Service, the DSS agent advised her renunciation of foreign citizenship was not required and she understood from him that she should not have any further contact with foreign agencies.

Applicant owns the small condominium in which she lives in the United States. She has no financial assets in Poland.

As of July 2002, Applicant's parents were supporting themselves on their pensions from the Polish government. They were still living in the same apartment they acquired when they went to work for the Polish national police agency. With their apartment becoming privatized, they were in the process of saving money to purchase it. Applicant has informed her parents she is a project engineer in a plant building submarines. She has not told them the name of the company she works for and is not certain they would know the name as they speak only Polish. Applicant sees her parents once a year to once every other year. She continues to call them by telephone once per month.

Applicant's brother resides about a ten-hour drive away from their parents. Applicant saw him on her trips to Poland, spending a day or so with him. She does not contact him by telephone, but has occasional email correspondence with him. Twice she sent an email message from her computer at work to his computer at his residence. ⁽⁶⁾ Applicant has not sent an electronic message from her home to her brother since sometime in 2001. She has not discussed with him the nature of her employment. Since Poland joined NATO, her brother as an army officer has been required to study English over the past three years. Applicant has no knowledge of either her parents or her brother ever being involved in any political activities in Poland. ⁽⁷⁾

POLICIES

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, favorable and unfavorable, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 to the Directive sets forth adjudicative guidelines which must be carefully considered according to the pertinent criterion in making the overall common sense determination required. Each adjudicative decision must also include an assessment of the nature, extent, and seriousness of the conduct and surrounding circumstances; the frequency and recency of the conduct; the individual's age and maturity at the time of the conduct; the motivation of the individual applicant and extent to which the conduct was negligent, willful, voluntary or undertaken with knowledge of the consequences involved; the absence or presence of rehabilitation and other pertinent behavioral changes; the potential for coercion, exploitation and duress; and the probability that the circumstances or conduct will continue or recur in the future. See Directive 5220.6, Section 6.3 and Enclosure 2, Section E2.2. Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility or emotionally unstable behavior. See Directive 5220.6, Enclosure 2, Section E2.2.4.

Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:

Foreign Influence

E2.A2.1.1. The Concern: 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 not citizens of the United States or 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.

E2.A2.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A2.1.2.1. An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country.

E2.A2.1.2.3. Relatives, cohabitants, or associates who are connected with any foreign government

E2.A2.1.3. Conditions that could mitigate security concerns include:

E2.A2.1.3.1. A determination that the immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States.

E2.A2.1.3.3. Contact and correspondence with foreign citizens are casual and infrequent

Under the provisions of Executive Order 10865 as amended and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, the Administrative Judge can only draw those inferences and conclusions which have a reasonable and logical basis in the evidence of record. In addition, as the trier of fact, the Administrative Judge must make critical judgments as to the credibility of witnesses. Decisions under the Directive include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.

Initially, the Government has the burden of proving any controverted fact(s) alleged in the Statement of Reasons. If the Government meets its burden and establishes conduct cognizable as a security concern under the Directive, the burden of persuasion then shifts to the applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of criterion conduct, it is clearly consistent with the national interest to grant or continue her security clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that she is nonetheless security worthy. As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security. See Enclosure 2 to the Directive, Section E2.2.2.

Having considered the evidence of record in light of the appropriate legal precepts and factors, and having assessed the credibility of the Applicant, I conclude the following with respect to guideline B:

Under guideline B, a security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he is bound by affection, influence or obligation are not citizens of the United States or may be subject to duress. Applicant's parents and brother are resident citizens of Poland. Applicant telephones her parents once per month and she visits them in Poland once a year or once every other year. Although Applicant does not have regular correspondence with her brother, they made the effort to get together on her visits to Poland and she sends him electronic mail messages on occasion. Disqualifying condition (DC) E2.A2.1.2.1., an immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country, applies in evaluating Applicant's security worthiness. Moreover, since Applicant's brother is currently serving as an officer in the Polish military, DC E2.A2.1.2.3., relatives, cohabitants, or associates who are connected with any foreign government, must be considered as well.

The foreign influence concerns engendered by the foreign citizenship and/or residency of close family members may be mitigated where it can be determined that the immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States (MC E2.A2.1.3.1.). The burden is on the Applicant to demonstrate her Polish ties do not place her in a position of vulnerability to foreign influence. With respect to Applicant's parents, the information of record supports application of MC E2.A2.1.3.1., notwithstanding their past employments with the Polish national police agency. While Applicant's parents held administrative positions in a local police office when the country was under Communist control, there is nothing about their present activities or affiliations which would indicate they are presently agents of a foreign power, or in a position likely to be exploited. Retired since November 1990, Applicant's parents are neither politically nor socially involved, preferring to spend time at their home with their vegetable garden. While her parents were members of the Polish Communist Party at one time, they joined the party for economic rather than ideological reasons. Moreover, with the democratization of Poland, the Communist Party apparently no longer exists in that nation. ⁽⁸⁾ Poland's increasingly Western orientation, as evidenced by its membership in NATO since 1999, significantly decreases the likelihood of any coercive pressure or noncoercive influence being brought to bear on, or through, Applicant's parents.

As an officer in the Polish military, Applicant's brother is subject to the orders of a foreign government. His status as a military officer does not necessarily make him an agent of a foreign power with the meaning of guideline B, ⁽⁹⁾ but there is insufficient evidence about his military duties and assignments to determine whether or not he is an agent of a foreign power. Applicant testified that her brother once served as a lecturer at the school where he obtained his degree, but the school had closed and she was uncertain as to whether the school was being converted to another military unit. She indicated she had no knowledge as to whether he worked with classified information, but understood that he had been studying English since Poland was now a member of NATO. She related they had not discussed with each other their respective work. (Transcript pp. 59-60). While MC E2.A2.1.3. cannot be applied with respect to her brother, the presence or absence of a given adjudicative factor is not outcome determinative. Considering Applicant's limited contacts with her brother, and those actions taken by her which demonstrate a clear preference for the United States, her risk of vulnerability to undue influence through her brother is regarded as minimal.

Although Applicant attended her brother's wedding in Poland in May 2000, and recently saw him on a return trip to Poland over the Easter holiday in 2002, Applicant's contacts with her brother are casual and infrequent. She has no telephone contact with him apart from a couple of times per year when she calls her parents and he happens to be there. She sends him electronic messages (primarily jokes) on rare occasion. Applicant testified credibly to not having sent an email message from her home computer since 2001. She admitted sending him two messages from work to his home using her personal hotmail address, but it is not clear when these messages were sent. As the DOHA Appeal Board reaffirmed on February 1, 2002, nothing in the plain language of MC E2.A2.1.3.3. precludes its application to immediate family members. ⁽¹⁰⁾ Contacts with an immediate family member in a foreign country raise a rebuttable presumption that those contacts are not casual in nature. Applicant has lived in the United States since she was twenty-two years old. In the last ten years, she has been back to Poland four times and her contact with her brother was limited to a day or so on each of those trips. Given the lack of personal contact with him as well as the absence of any regular correspondence, their relationship does not appear to be a particularly close one.

Whether an applicant's family ties in a foreign country pose a security risk depends on a common sense evaluation of the overall facts and circumstances. While this is not a foreign preference case, Applicant's decisions to obtain her education in the United States, to make her home and pursue her career in the United States, and most important, to acquire her United States citizenship, render it less likely that she would fall susceptible to foreign influence or pressure. She was willing to renounce her foreign citizenship until she met with a DSS agent in December 2001 and understood from him that she should have no further contact with a foreign agency. Although she renewed her Polish passport when she was living in the United States, she was not yet a United States citizen when she did so. After she acquired her United States passport, she used it in preference to her Polish passport to travel to Italy in August 2000. Her decision to travel as a United States citizen predated her work with the defense contractor, so the security clearance was not the motivation for her travel on her United States passport. She has no financial assets in Poland which could increase her risk of vulnerability to foreign influence, while she owns her condominium in the United States. Applicant has been frank about her foreign ties, volunteering to the Department of Defense that her parents had joined the Communist Party to obtain state jobs and an apartment when Poland was under Communist rule. Applicant's candor augurs favorably for her reporting any improper foreign contacts or threats in the unlikely event she or her immediate family members in Poland were to become subject to undue foreign influence. Although her supervisors at her place of employment have not been made aware of the Government's security concerns, they have not found Applicant to be secretive or evasive about her work or lifestyle. Subparagraphs 1.a., 1.b., 1.c., and 1.d. are resolved in her favor.

Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive are hereby rendered as follows:

Paragraph 1. Guideline B: FOR THE APPLICANT

Subparagraph 1.a.: For the Applicant

Subparagraph 1.b.: For the Applicant

Subparagraph 1.c.: For the Applicant

Subparagraph 1.d.: For the Applicant

DECISION

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.

1. The evidence is conflicting as to Applicant's security clearance history. Applicant indicated in her Answer to the SOR that she had been granted an Interim Secret clearance, which was suspended on receipt of the SOR. At the hearing, Applicant testified she had a Confidential security clearance which was revoked. (See transcript pp. 11, 13-14).

2. When interviewed by a special agent of the Defense Security Service in December 2001, Applicant indicated she and her new husband obtained permanent residency status together. Yet, at the hearing, she admitted to being in the United States illegally only from fall 1992 to spring 1994. While she was apparently successful in the immigrant lottery, it is not clear when she obtained permanent residency status. Applicant testified she initially paid full tuition to take courses at a state school, and that on obtaining her green card, she qualified for in-state tuition. Her SF 86 reflects attendance at a local community college from August 1995 to May 1997. It was not established whether she took some college courses before she attended the local community college.

3. On her SF 86, Applicant indicated her most recent Polish passport was issued on July 20, 2000, to expire on February 15, 2010. Applicant testified at the personal appearance that the dates of her foreign passport were in error, and that she renewed it in spring 2000.

4. Applicant told the agent in December 2001 the cost of renouncing her Polish citizenship was about $500.00. (Ex. 3). At her hearing, she testified it cost about $1,000.00. (Transcript p. 40).

5. Applicant testified her brother received the equivalent of a bachelor of science degree from the Polish military academy. His education was paid for by the Polish Army.

6. Applicant testified in a manner which indicated she did not realize the impropriety of sending a message via electronic mail from a defense contractor computer to someone serving in a foreign military. She maintained that even though she used her computer at work, she used her email address at home. (Transcript pp. 70-71).

7. Applicant testified her parents had to become members of the Communist Party in Poland to maintain their jobs. Applicant indicated they were never active members, and they had no sense of affiliation with the Communist Party presently. She expressed no knowledge as to whether her parents were active voters in Poland. (Transcript pp. 44-45). As for her brother, she indicated she had "no clue" as to his political leanings. (Transcript p. 49).

8. Applicant testified to her knowledge the Communist Party stopped existing. (Transcript p. 34).

9. While having relatives with connections to a foreign government is potentially security disqualifying under guideline B (see E2.A2.1.2.3.), it stands to reason that not every person who has a connection to a foreign government is an agent of a foreign power. Indeed, mitigating condition E2.A2.1.3.1. requires an applicant demonstrate the immediate family member is not an agent of a foreign power (vice the relative has no connection to a foreign government).

10. See ISCR Case No. 00-0484 decided February 1, 2002.