DATE: September 13, 2005

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JOHN GRATTAN METZ, JR.

APPEARANCES

FOR GOVERNMENT

Stephanie C. Hess, Esquire, Department Counsel

FOR APPLICANT

William F. Savarino, Esquire

SYNOPSIS

Applicant mitigated the security concerns by demonstrating that his family members living in Ghana were not agents of a foreign government or so situated as to provide a point of influence on Applicant, and that his financial interests were minimal. Clearance granted.

STATEMENT OF THE CASE

Applicant challenges the 20 May 2004 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of his clearance because of foreign influence and personal conduct ⁽¹⁾ Applicant answered the SOR on 8 June 2004 and requested a hearing. DOHA assigned the case to me 16 September 2004 and I convened a hearing on 13 January 2005. DOHA received the transcript 21 January 2005.

FINDINGS OF FACT

Applicant admitted the factual allegations under Guideline B, but denied falsifying his clearance application (Guideline E); accordingly I incorporate those admission as findings of fact. He is a 33-year-old computer programmer employed by a defense contractor since January 2000. He has not previously had a clearance.

Applicant was born in the U.S. in 1971. His mother was a native-born U.S. citizen; his father a Ghanaian citizen. ⁽²⁾ He was raised and educated in the U.S., obtaining his undergraduate degree in architecture from an Ivy League college in 1996.

Sometime before April 1983, Applicant's mother and father divorced, and his father returned to Ghana. His father later remarried and Applicant has two half-siblings from that marriage born in Ghana, a sister born in April 1983 and a brother born in September 1985. Applicant maintains regular contact with his father, occasional contact with his siblings, and traveled to Ghana in 2000 and 2002 to visit them. Neither of his siblings works for the government.

In 1997, when he was still a practicing architect, Applicant and his father started an architectural design and construction company in Ghana. However, the firm never did any business in Ghana or elsewhere, and in June 1998 Applicant decided to go into the information technology field. (IT). He obtained his first IT job in February 1999 and has been employed in the IT field since. His company lay dormant from 1999 to February 2002.

Applicant's father retired in 2001 after 25 years as a petrol-chemical engineer with a Ghanaian oil company that Applicant believes was government-owned in the beginning, but became a privately owned corporation during the time his father worked for them. He received an end-of-service (pension) payment after retirement, but not immediately after retirement. Between 2001 and 2003--when Applicant learned that the pension payment had been made--Applicant sent his father $100-500 per month to help handle the family's living expenses. ⁽³⁾ Applicant's father may be entitled to an additional pension payment, but his current income from the pension is adequate to meet the family's needs.

In February 2002, Applicant and his father decided to turn their company into an internet café, as most Ghanians lack a personal computer and internet cafes were booming in Ghana. Applicant also thought income from the café would augment his father's retirement. His father handled the paperwork in Ghana and Applicant bought $10,000-15,000 worth of used computer equipment and shipped it to Ghana. They also opened a Ghanaian bank account for the firm (AE A). Applicant traveled to Ghana during his company vacation in March-April 2002 to get the café up and running, but had to return before the work was entirely complete. Applicant's father and half-brother succeeded in opening the café in mid-April 2002, but only briefly.

Unfortunately for Applicant, neither he nor his father nor half-brother proved to be businessmen. Their business location was not good, and they only generated about $170.00 in business in May 2002 (AE A). ⁽⁴⁾ In May 2002, Applicant's mother died and his father and half-brother neglected the business while they were making funeral arrangements and grieving. By August 2002, the ISP terminated their contract and repossessed its internet equipment. In April 2003 (GE 2), Applicant and his father were still hoping to relocate the café and resume operations, but by June 2004 (Answer) had abandoned that plan because the used computers he bought had Pentium II processors, woefully inadequate for today's internet access. His business venture was a bust, his capital investment essentially worthless. The company bank account has about $62.00 in it, but Applicant has no plans to go into business with his father again or attempt to run a business of any sort in Ghana.

Applicant's character references, both at and outside work, consider him a reliable and trustworthy person. He has an excellent work record and his employer recommends him for a clearance. He has adequately safeguarded company proprietary information.

Ghana is democracy with free and fair elections, and good relations with the U.S. The government generally respects the privacy and civil rights of Ghanaian citizens. Ghana is not known to be a collector of intelligence or economic information against the U.S.

When Applicant completed and transmitted his electronic clearance application (GE 1) to his facility security officer (FSO) on 15 March 2002, he truthfully reported Ghanaian-born spouse (since divorced), his Slovakian girlfriend, his other Ghanaian family relations, foreign business interests, and foreign travel to date. He expected the clearance application to be transmitted to the government that day. He also knew, and had told his FSO, that he was traveling to Ghana later that afternoon, but believed that he did not have to report travel that had not yet occurred and his FSO did not advise him to the contrary. When he returned to the U.S. in April 2002, ⁽⁵⁾ his FSO returned a hard-copy of the clearance application to him and asked him to sign it. Although he reviewed the application before signing it, he testified credibly that he believed he was certifying his answers as of the submission date, 15 March 2002. It never occurred to him to amend his application to report the March-April 2002 travel to Ghana. However, he testified credibly that he reported the travel during his subject interview in April 2003 without being asked about it, and his sworn statement (GE 2) contains the details of that travel.

POLICIES

The Directive, Enclosure 2 lists adjudicative guidelines to be considered in evaluating an Applicant's suitability for access to classified information. Administrative Judges must assess both disqualifying and mitigating conditions under each adjudicative issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in Section 6.3. of the Directive. The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative guidelines should be followed whenever a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant, applicable, adjudicative guidelines are Guideline B (Foreign Influence) and Guideline E (Personal Conduct).

Burden of Proof

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an Applicant's security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then refute, extenuate, or mitigate the government's case. Because no one has a right to a security clearance, the Applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The "clearly consistent with the national interest" standard compels resolution of any reasonable doubt about an Applicant's suitability for access in favor of the government. ⁽⁶⁾

CONCLUSIONS

The government established a case for disqualification under Guideline B by demonstrating that Applicant's father and two half-siblings are citizens and residents of Ghana, ⁽⁷⁾ and that he invested a substantial amount of money in a joint business venture with his father in Ghana. ⁽⁸⁾ His regular communication with his father and his travel to Ghana demonstrates his close ties of affection.

However, Applicant has met the relevant mitigating conditions under foreign influence. Neither his father nor his siblings are agents are of a foreign government, and none of them are so situated as to provide a point of influence on Applicant, thus satisfying Mitigating Condition (MC) 1. ⁽⁹⁾ In particular, Ghana has a democratic government with a close relationship to the U.S. Its elections are generally acknowledged to be free and fair, and the government generally protects the privacy rights and civil liberties of its citizens. In addition, Applicant's initial investment in the internet café is now effectively worthless, and Applicant has no intent to enter into any more business ventures in Ghana, either with or without his father. I resolve Guideline B for Applicant.

The government did not establish a Guideline E case, as I accept Applicant's explanation that he believed he was certifying his clearance application as of the date he originally submitted it, vitiating any intent to mislead the government. Further, he reported all his other past and current foreign connections. Finally, he promptly disclosed the travel during his subject interview in April 2003 without being asked about it. I conclude Guideline E for Applicant.

Paragraph 1. Guideline B: FOR THE APPLICANT

Subparagraph a: For the Applicant

Subparagraph b: For the Applicant

Subparagraph c: For the Applicant

Subparagraph d: For the Applicant

Subparagraph e: For the Applicant

Paragraph 2. Guideline E: FOR THE APPLICANT

Subparagraph a: 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. Clearance granted.

1. Required by Executive Order 10865 and Department of Defense Directive 5220.6, as amended (Directive).

2. Applicant's Ghanaian citizenship status under Ghanian law does not appear in the record. He did not claim dual citizenship with Ghana when he applied for his clearance (GE 1), has never had a Ghanaian passport (GE 1), traveled to Ghana in March 2002 on a visa issued by the Ghanaian Embassy in Washington, DC, and was admitted to Ghana on his U.S. passport for a period not to exceed 60 days (employment prohibited) in March 2002 (GE 3).

3. Applicant would typically send more money if there were school payments to be made for his half-siblings.

4. The start-up costs from Applicant's internet service provider (ISP) for May 2002 alone were $925.00 (the ISP being astute enough to charge in U.S. dollars, converted to local currency)(AE A).

5. Applicant's passport reflects that he arrived in Ghana on 16 March 2002, via Amsterdam, on a Ghanaian-issued visa, was admitted for 60 days (employment prohibited), and departed Ghana, via Amsterdam, on 4 April 2002.

6. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

7. 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;

8. E2.A2.1.2.8. A substantial financial interest in a country, or in any foreign-owned or -operated business that could make the individual vulnerable to foreign influence.

9. 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 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.