DATE: May 16, 2006

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

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

KATHRYN MOEN BRAEMAN

APPEARANCES

FOR GOVERNMENT

Kathryn MacKinnon, Esquire, Department Counsel

FOR APPLICANT

Sheldon Cohen, Esquire

SYNOPSIS

Applicant mitigated security concerns over foreign preference, drug abuse, and personal conduct. She is a U.S. citizen who has traveled exclusively on her U.S. passport and affirmed her preference for the U.S. over Israel. She has no intent to seek dual citizenship with Israel in the future. While she used marijuana intermittently in college and even attempted use in September 2002 after she applied for her security clearance, she has subsequently matured and had no subsequent use for four years. She has no intent for future use. Over the course of three interviews, she fully cooperated with the investigator. As she voluntarily clarified her drug use to the investigating agent, and was not confronted, I conclude she had no intent to falsify in her initial security interview. Clearance is granted.

The Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant on August 3, 2004. The SOR detailed reasons why the Government could not make the preliminary positive finding that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. ⁽¹⁾ The SOR alleges specific concerns over foreign preference (Guideline C), drug abuse (Guideline H), and personal conduct (Guideline E). Through counsel Applicant responded to these SOR allegations in an Answer notarized on September 24, 2004, where she admitted allegation 1.d., but denied all other allegations and requested a hearing.

Department Counsel indicated the case was ready to proceed on July 28, 2005, and the case was assigned to me on August 1, 2005. After agreement by counsel, the Notice of Hearing was issued on August 18, 2005, to set the matter for October 27, 2005. Department Counsel offered three exhibits into evidence. Applicant's counsel objected to Exhibit 2 as duplicating Exhibit 1, but his objection was overruled as they were not identical. All three exhibits were admitted into evidence. (Exhibits 1-3; TR 21-25) Department Counsel also offered eight exhibits for Administrative Notice; Exhibits I, IV, & V were accepted for Administrative Notice and admitted over the objection of Applicant's counsel. (TR 25-52, 64) [Applicant's counsel objected to five of the exhibits where the objection was sustained and the documents were not admitted. (Exhibits II ⁽²⁾, III, VI, VII, & VIII; TR 28-35, 52-64)

Applicant's counsel offered a Hearing Memorandum which was accepted. He also moved to amend the Answer to correct a typographical error in response to SOR subparagraph 3.a.: she denied falsifying facts in an October 2004 interview; the date should be October 2002. The Government did not object, so the Answer was amended. (TR 12-13) He called five witness and offered exhibits A through Z, and DD. (Exhibits AA-CC were withdrawn.) His exhibits A, B, H, Q, R, S, T, U, V, W, X were admitted without objection. Department Counsel's objection to Exhibits C, D, E, F, & G as not relevant was sustained; and the documents were not admitted into evidence. (TR 206-212) Department Counsel objected to Exhibits I through P as not relevant; Exhibits I through P were admitted over her objection. (TR 214-221) Department Counsel's relevancy objection to Exhibits Y, Z-1 through Z-4, and Exhibit DD was sustained. (TR 226- 230, 231-233) The transcript was received November 9, 2005.

After a complete and thorough review of the evidence in the record, and upon due consideration of that evidence, I make the following Findings of Fact:

Applicant, 25 years old, worked as a consultant for Employer #1 in State #1 from August 2002 to February 2003. She completed a SF-86 security clearance application in August 2002. She then went to work for Employer #2 in State #2 from May 2003 to present as an engineer. (Exhibits 1, 2; TR 140-152; TR 199-200; Exhibit A)

Applicant is a U.S. Citizen. Both of her parents and both of her brothers are U.S. citizens. She has lived with her father and step-mother since she was five years old. She began attending college in 1998 and received an engineering degree in December 2002. She is now in graduate school working for a masters degree. (Exhibits 1, 2; TR 140-144, 152-156)

Applicant traveled to Israel initially in 1993 when she was 13 ⁽³⁾, and again from June 1997 to August 1997 when she was in high school. She participated in a high school program in Israel and later visited her father's sister and her cousins who lives in Israel. When she was in college, she again traveled to Israel from December 2001 to January 2002. Applicant traveled to Israel as she loves the beauty of the nation and finds the Israeli people amazing. Sometime in the future she "will again travel to Israel because it is a beautiful land with wonderful people." In her Defense Security Service (DSS) Statement in November 2002, she said that she was "loyal to both USA and Israel." She has a strong connection to Israel through her heritage. "Concerning my loyalty to the USA and Israel, it is too difficult for me to choose between the two. I would never do anything to harm either nation." (Exhibits 1, 2, & 3)

At the hearing she put her statements in context ⁽⁴⁾: the DSS agent asked in her interview which country she would rather see destroyed, the U.S. or Israel. Her response reflected her belief that she did not want to see any country destroyed. However, she has never accepted any privileges or rights of any nation other than the USA. She has only had a U.S. passport. If a friend or relative ⁽⁵⁾ were to ask for classified information, she would contact her security officer for advice. She has never had any contact with a foreign government or been pressured or coerced to reveal classified information. Applicant does not have dual citizenship with Israel. While in 2002 she stated "in an ideal world" she might explored the idea of dual citizenship with Israel, even in that interview she stated her preference for the U.S. In 2005 she clarified that she has no intent to seek dual citizenship with Israel in the future. Neither has she ever received any benefits from Israel. She has not served in the military service in Israel. She would not bear arms for Israel. She has no property or financial interests in Israel. (Exhibits 1, 2, & 3; TR 156-179, 191-193; 196-198) (SOR 1.a., 1.b., and 1.c.) In sum, she established she does not have a preference for Israel over the U.S.

On her August 2002 Security Clearance Application in response to Question 27 on use of illegal drugs, Applicant disclosed her college use of marijuana four times from September 1998 to April 2002. (Exhibit 2)

In her DSS interview in October 2002 ⁽⁶⁾ Applicant testified that all that the DSS agent asked initially was when she had used marijuana. She recalled that she simply said during college as at first she did not consider that she had "used" marijuana in September 2002. In a subsequent interview, the DSS agent asked more broadly if she had had any other "exposure" to marijuana. She then voluntarily reported the September 2002 incident with marijuana. (TR 187-190) At that time she had applied for a security clearance, but one had not been granted to her. There was no evidence that the investigator confronted her about this later incident.

In her November 2002 sworn Statement, Applicant fully cooperated and clarified her entire history of her use of marijuana. She reported the additional exposure in September 2002 she was at a friend's house when one person "lit up some marijuana. They passed around and used the marijuana" as she continued to sit and socialize with them. She did "try marijuana on that occasion. The marijuana was communally shared through a glass bowl." When she decided to try it, only ashes remained; she got a "yucky taste from said ashes of marijuana." ⁽⁷⁾ She then passed the bowl back. She had not mentioned this use earlier to the DSS agent as she did not consider her "use of marijuana as all that important, again because it did not injure" herself or others. In a college environment marijuana use is frequent, so this incident did not stand out in her mind. She said she would not use marijuana in the future if "marijuana use jeopardizes my job or a friendship." She explained she used marijuana in September 2002 after she had started her first professional job as she "simply didn't give any thought as to how it could possibly impact" her job. Later she realized such drug use would jeopardize her job. In November 2002 she declared that she "will never use marijuana in the future." Since September 2002, she has not tried, used or come into any contact with marijuana and has no intent to do so in the future. (Exhibits 1, 2, & 3; TR 180-191; 196-198; 200-205) (SOR 2.a., 2.b.)

While a rabbi ⁽⁸⁾ testified, he did not personally know Applicant well as she was no longer a member of his congregation; he has only spoken to her three or four times in the past five years. He knew her family who were members. (Exhibit B; TR 66-95; 95-97; 233)

An engineering science advisor from Applicant's company who has held a security clearance since 1976 testified that he is the technical lead for a project on which Applicant is assigned and has known her for two and one-half years. He appraised her as a hard worker who works with integrity; her work is very good to excellent. He also assessed her as an honest person. He recommended her for a position of trust. (TR 98-106, 107-109, 109-110)

A friend of Applicant's testified that she had met her in college and known her since 2000. After college she moved to the area where Applicant lives and has continued her association with her on a social basis once a month. She saw Applicant once in college when she was high from marijuana use. Since college, she has never seen Applicant use marijuana. She assesses her as a person of compassion. She sees her as very mature now as she works a full-time job, attends graduate school, and still has time for a social life. She stated that Applicant never told her that she had a preference for Israel over the United States. This friend would recommend Applicant for a position of trust and for a security clearance. (TR 111-123)

Applicant's uncle (her step-mother's sister's husband) testified on her behalf as he has known her for twenty years since she was nine years old. She worked for his company for two summers as an intern when she was in college; her work was excellent. He assesses her as an honest individual. He would recommend Applicant for a position of trust and for a security clearance. (TR 124-134,134-137, 137-139, 145-146)

Enclosure 2 of the Directive sets forth adjudicative guidelines to consider in evaluating an individual's security eligibility. They are divided into conditions that could raise a security concern and may be disqualifying and conditions that could mitigate security concerns in deciding whether to grant or continue an individual's access to classified information. But the mere presence or absence of any given adjudication policy condition is not decisive. Based on a consideration of the evidence as a whole, I weighed relevant Adjudication Guidelines as set forth below:

E2.A3.1.1. The concern: 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.

E.2.A.8.1.1. The Concern: Improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information.

E2.A5.1.1. The Concern: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

The responsibility for producing evidence initially falls on the Government to demonstrate that it is not clearly consistent with the national interest to grant or continue Applicant's access to classified information. The Applicant presents evidence to refute, explain, extenuate, or mitigate in order to overcome the doubts raised by the Government, and to demonstrate persuasively that it is clearly consistent with the national interest to grant or continue the clearance. Under the provisions of Executive Order 10865, as amended, and the Directive, a decision to grant or continue an applicant's security clearance may be made only after an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination, the Administrative Judge may draw only those inferences and conclusions that have a reasonable and logical basis in the evidence of record.

CONCLUSIONS

When an individual acts in such a way as to indicate a preference for a foreign country over the United States, there is a security concern as then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. With respect to her three visits to Israel in 1997, 1993 and 2001 (SOR 1.d.), Applicant admitted this travel to Israel, but travel alone does not raise a disqualifying security concern of foreign preference.

There is no evidence that Applicant ever chose to serve the interests of another government in preference to the interests of the United States. Applicant has not served in the military service in Israel and would not bear arms for Israel. Neither does she receive any benefits from Israel. She has no property or financial interests in Israel. Similarly, the other allegations do not fall within any of these disqualifying conditions: connections to Israel due to her family ⁽⁹⁾ (SOR 1.b) do not become disqualifying as they are not immediate family members, but merely aunts and cousins; the possibility that she might obtain Israeli citizenship and reside in Israel in the future (SOR 1.c.) she has rebutted as discussed below. In fact, Applicant is a U.S. citizen, not a dual citizen, and has exclusively used her U.S. passport. Thus her conduct does not fall within any of the foreign preference disqualifying conditions ⁽¹⁰⁾ detailed in the Directive.

Applicant denied the allegation that it would be "too difficult" for her to choose between the U.S. and Israel. (SOR 1.a.) While the government offered Applicant's 2002 Statement as evidence of this preference, the Applicant established that this statement was taken out of content. In the interview with DSS she reported that she was asked which country she would rather see destroyed, the U.S. or Israel. She replied, "Concerning my loyalty to the USA and Israel, it is too difficult for me to choose between the two. I would never do anything to harm either nation." (Exhibit 3) I found her credible when she explained that this response reflected merely her belief that she did not want to see either country destroyed. In fact, even E2.A3.1.2.9. is linked to acts, not statements. (Performing or attempting to perform duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States.) While in 2002 she probed the idea of obtaining dual Israeli citizenship in an ideal world, she testified persuasively in 2005 to her exclusive preference for the U.S. As she has no foreign passport and has exclusively used her U.S. passport, there was no need for her to comply with the security requirements of the OASDC3I memorandum of August 16, 2000 to surrender a foreign passport. Indeed, even if she had obtained an Israeli passport, she could mitigate that concern by surrendering it under this prerequisite. If surrendering a passport can mitigate this concern, certainly clarifying statements can extenuate a concern over foreign preference. Similarly, she mitigated the concerns raised by her prior statements with her 2005 testimony which clearly affirmed her preference for the U.S. She credibly established that she has no intent to seek dual citizenship with Israel in the future.

Even if one were to conclude that the Government established a prima facie case, Applicant has mitigated the Government's security concerns over her possible preference for a foreign country by her testimony elaborating her exclusive preference for the United States. In short, she testified persuasively that she does not have a preference for Israel over the U.S.

Looking at her as a whole person, I considered (E.2.2. Adjudication Process) these factors: E.2.21.1. The nature, extent, and seriousness of the conduct; E2.2.1.2. The circumstances surrounding the conduct, to include knowledgeable participation; E2.2.1.3. The frequency and recency of the conduct; E2.2.1.4. The individual's age and maturity at the time of the conduct; E2.2.1.5. The voluntariness of the participation; E2.2.1.6. The presence or absence of rehabilitation and other pertinent behavioral changes; E.2.2.1.7. The motivation for the conduct; E.2.2.1.8. The potential for pressure, coercion, exploitation, or duress; and E.2.2.1.9. The likelihood of continuation or recurrence. Significantly, Applicant was only 22 at the time she made these emotional statements which raised concerns. In the subsequent four years she has matured and is highly regarded by her technical supervisor who sees her as a person of integrity and recommended her for a position of trust. Consequently, I conclude Applicant has mitigated ⁽¹¹⁾ the foreign preference security concern.

Having weighed the record evidence as a whole under the other factors outlined in Directive, I conclude neither Applicant's statements in 2002, nor her remote family ties in Israel, nor her past statements exploring in her mind possible ties to Israel in the future, nor her past travel to Israel establish her preference for a foreign country over the U.S. Additionally, considering the totality of the evidence, I conclude that Applicant is a U.S. citizen who has demonstrated her strong preference for the U.S. over any other foreign nation. Therefore, I conclude Guideline C for Applicant. Thus, favorable findings are warranted with respect to subparagraphs 1.a. through 1.d. of the SOR.

Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information. While the Government established security concerns over her drug use in college, her last use of marijuana was in 2002, approximately four years ago. Her actions fall within conditions that could raise a security concern and may be disqualifying including: E2.A8.1.1.2.1. (any drug abuse). Indeed, the SOR highlights the fact that she used marijuana in September 2002 notwithstanding her having completed a security clearance application in August 2002 when she started her first professional job. However, I accept her statement that, in fact, she merely attempted to use marijuana in September 2002; when she discovered that the bowl was only filled with ashes, she show good judgment in refusing the offer to have it refilled. At the time she had applied for a security clearance, but one had not been granted to her so she was not fully aware of security requirements. Applicant mitigated ⁽¹²⁾ security concerns over her dated use of marijuana as there is no evidence that she ever returned to use drugs subsequently.

Thus, E2.A8.1.1.3.1. (The drug involvement was not recent.) applies to mitigate these concerns. In addition, she has matured and now understands that she should not associate with others who use drugs. She clearly stated her intent to avoid any illegal drug use in the future, so she falls within E2.A8.1.1.3.3. (A demonstrated intent not to abuse any drugs in the future.) Thus, I conclude that she has mitigated the factors leading to the earlier drug involvement as again she has matured and more clearly understands the security concerns over any drug use or attempted use. Her friend who knew her during college and subsequently testified that Applicant has matured; she recommended Applicant for a position of trust. Hence, after considering the Adjudicative Process factors and the Adjudicative Guidelines, I rule for Applicant under subparagraphs 2.a. and 2.b. incorporated under SOR Paragraph 2.

The Government laid the groundwork for security concerns over Applicant's Personal Conduct over her alleged false statement to a DSS agent in October 2002 which would fall within Disqualifying Condition (DC) E2.A5.1.2.3: Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other official representative in connection with a personnel security or trust-worthiness determination. While the Special Agent did not testify, she testified she spoke to him on three occasions. However, she credibly denies she had any intent to falsify in the initial interview. To her credit, she herself volunteered this September 2002 use to the DSS agent in a subsequent interview when he asked a more pointed question as to whether she had ever been exposed to marijuana. She then conceded to him that in September 2002 she was "exposed to marijuana once." She reported that she was at a friend's house when one person "lit up some marijuana. They passed around and used the marijuana" as she continued to sit and socialize with them. She admitted she did "try marijuana on that occasion. The marijuana was communally shared through a glass bowl." When she decided to try it, only ashes remained and she got a "yucky taste from said ashes of marijuana." She then passed the bowl back.

At the hearing, Applicant testified further that when her friends were passing around a bowl of marijuana and smoking from it, she was hesitant. She was asked if she wanted more marijuana added to the bowl, and she said no. I found her credible when she explained that she had not mentioned this use initially to the DSS agent as this incident did not stand out in her mind. In this case, the state of her mind is relevant as it goes to whether or not she intended to falsify in her initial interview in October when she failed to include this incident. I conclude that she credibly established that she did not have the intent to falsify as she later volunteered it to the agent when he asked a broader question. There is no evidence that the investigator obtained this information from someone else and subsequently confront her.

Even if one were to conclude her failing to acknowledge her September 2002 use in the initial interview was a misrepresentation, Applicant's explanations meet the mitigation ⁽¹³⁾ guidelines. She fully cooperated with the DSS agent in providing all the details he requested. Thus she falls within E2.A5.1.3.3., as she made prompt, good-faith efforts to correct the falsification before being confronted with the facts in the November 2002 interview where she provided a comprehensive statement. Looking at Applicant as a whole person ⁽¹⁴⁾ and considering the circumstances surrounding his conduct (E2.2.1.2), I conclude Applicant has a reputation for honesty at her company, in her family, and with her friend. Thus, after considering the Adjudicative Process factors and the Adjudicative Guidelines, I rule for Applicant under SOR Paragraph 3 under subparagraph 3.a.

After reviewing the allegations of the SOR in the context of the Adjudicative Guidelines in Enclosure 2 and the factors set forth under the Adjudicative Process section, I make the following formal findings:

Paragraph 1. Guideline C: FOR APPLICANT

Subparagraph 1.a.: For Applicant

Subparagraph 1.b.: For Applicant

Subparagraph 1.c.: For Applicant

Subparagraph 1.d.: For Applicant

Paragraph 2. Guideline H: FOR APPLICANT

Subparagraph 2.a.: For Applicant

Subparagraph 2.b.: For Applicant

Paragraph 3. Guideline E: FOR APPLICANT

Subparagraph 3.a.: For 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 the Applicant. Clearance is granted.