DATE: February 3, 2006

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ELIZABETH M. MATCHINSKI

APPEARANCES

FOR GOVERNMENT

Daniel F. Crowley, Esq., Department Counsel

FOR APPLICANT

Jerome L. Benson, Esq.

SYNOPSIS

Applicant is a naturalized U.S. citizen whose father and three of his four siblings are resident citizens of Vietnam. Applicant traveled once to Vietnam in 1998 and he contacts his father three or four times yearly by telephone. The foreign influence concerns presented by the foreign citizenship and residency of his family members are mitigated where they are not agents of a foreign government nor in positions where they are likely to be exploited. Personal conduct concerns because of Applicant's arrest for assault and battery with a dangerous weapon and witness intimidation in 2001 and his failure to disclose his arrest on his December 2001 security clearance application are mitigated where the charges were dismissed, there is no evidence of recent assaultive behavior, and the omission was not deliberate. Clearance is granted.

On December 20, 2004, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant. The SOR 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. ⁽¹⁾ 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 (Guideline B) and personal conduct (Guideline E).

On January 18, 2005, Applicant responded to the SOR and requested a hearing. The case was assigned to me on July 18, 2005. On July 29, 2005, I scheduled a hearing for August 23, 2005. Applicant's counsel entered his appearance on August 1, 2005, and requested a continuance due to a schedule conflict. On August 2, 2005, I issued an amended notice setting the hearing for August 25, 2005.

At the hearing convened as rescheduled, the government submitted six exhibits (Exs. 1-6), which were accepted in evidence. Exhibit 4, the police report of the assault alleged in SOR ¶ 2.a. was admitted over Applicant's hearsay objections while noting that in light of Section 4 of Executive Order 10865 (Enclosure 1, Directive 5220.6), Exhibit 4, statements therein adverse to Applicant unsubstantiated by direct observations of the officers would not be considered. ⁽²⁾ Applicant's case consisted of three character reference documents and his testimony. At the government's request and over Applicant's objections, I agreed to take administrative notice of three publications of the U.S. Department of State: Country Reports on Human Rights Practices-2004 Vietnam, dated February 28, 2005; Background Note: Vietnam, dated April 2005; and Consular Information Sheet Vietnam, dated May 9, 2005 (information current as of July 7, 2005). A transcript of the proceedings was received on September 7, 2005.

DOHA alleged foreign influence concerns because Applicant's father and two siblings are resident citizens of Vietnam, ⁽³⁾ Applicant contacts his father through his sister by telephone three to four times yearly, and he traveled to Vietnam to see them in 1998. Alleged personal conduct concerns relate to an arrest in August 2001 on charges of assault and battery with a dangerous weapon and intimidation of witness, and his failure to report his arrest on his December 2001 security clearance application (SF 86). In his pro se Answer, Applicant admitted with explanation the foreign influence allegations (his father and "two sisters" still live in Vietnam). He denied the personal conduct allegations, averring that his spouse had been arrested in September 2001 after becoming violent during a domestic altercation; that she made allegations while in custody that led to the charges against him which were dismissed. Since he had been summoned to court rather than arrested, he believed he answered his SF 86 correctly. His admissions are accepted and incorporated as findings of fact. After a thorough review of the evidence of record, I make the following additional findings:

Applicant is a 52-year-old electrical engineer who has worked in the defense industry since February 1981 and for his present employer since 1984. Currently an assistant administrator in information technology hardware, Applicant has held a secret-level security clearance without adverse incident since at least July 1984, and he seeks to retain that clearance.

Applicant was born in Vietnam (then South Vietnam) in October 1953. He is the oldest of five children (three sons and two daughters) ⁽⁴⁾ born to peasant farmers. After graduating from a public high school in South Vietnam in June 1970, Applicant served as a lieutenant in the special forces of the South Vietnamese army until December 1972, when he was severely wounded. He spent one year recovering from his injuries and was officially discharged in late 1973.

Applicant married a South Vietnamese native citizen and in January 1974, they had their first child, a daughter. ⁽⁵⁾ In July 1974, he became employed by the U.S. State Department in South Vietnam. In late April 1975, his services were terminated by a reduction in force due to a closing of the mission in Vietnam. Applicant, his spouse, year-old daughter, and his youngest brother fled South Vietnam for the U.S. as refugees. They went first to Guam, where a son was born to Applicant and his spouse in a U.S. naval hospital in May 1975, shortly before they left for a naval base in the Phillippines. On June 24, 1975, Applicant, his spouse, his children and his brother arrived in the U.S. Those family members who had remained in Vietnam were targeted by the Communists. Applicant's father was sent to a prison camp for "reeducation" for one year, his sister was sent to a new economic zone, and his uncle, who had been a police chief under the South Vietnamese government, was executed.

In the U.S. Applicant attended college during the day while working at night for a pharmaceutical company. In about January 1981, he earned his bachelor of science degree in electrical engineering technology. He got a job with a defense contractor in February 1981. In late June 1981, Applicant, his spouse, and daughter became naturalized U.S. citizens, taking an oath to renounce all foreign allegiances, to support and defend the U.S. Constitution and its laws, and to bear arms or perform noncombatant service or civilian service on behalf of the U.S. if required. Applicant's son was already a U.S. citizen by virtue of his birth in the U.S. naval hospital in Guam. Applicant and his spouse later had two more daughters, born in the U.S. in October 1987 and March 1990, respectively.

While his application for a security clearance was pending, Applicant went to work for another defense firm in early December 1981. Needing a secret-level security clearance for his duties as a junior engineer in electronics systems design, Applicant executed a Personnel Security Questionnaire (DD Form 49) on December 11, 1981. Applicant reported his past service in the army and government of South Vietnam, and his refugee status and subsequent U.S. naturalization. He also provided the alien registration information for his youngest brother living in the U.S. and indicated this brother intended to acquire U.S. citizenship.

On June 21, 1982, Applicant was interviewed by a special agent of the Defense Security Service about his relatives in Vietnam. Applicant indicated that he and his spouse have two or three times yearly written correspondence with their relatives in Vietnam (his father, sister, and brother and her mother and two brothers). His mother and her father were deceased. He expressed an unequivocal intent to remain in the U.S. permanently and to report through official U.S. channels should any pressure be placed on his family members in Vietnam, who like him are against Communism. In 1984, Applicant began working for his current employer where he was granted in mid-July 1984 a secret-level security clearance.

In September 1986, Applicant started graduate degree studies in electrical engineering while continuing to work for the defense contractor. He earned his .S.E.E. degree in June 1989.

Applicant traveled to Vietnam with his son to see his father in June 1998. Proud of his son who had just graduated from a U.S. military academy, Applicant wanted his son to meet his grandfather. He also wanted to show his father that he had made the right decision for himself and his family when he left Vietnam for the U.S. Applicant cleared this trip with security personnel at work before departing for Vietnam, and on entering the country, reported his son's status as "student" since he did not want the Vietnamese officials to know his son was in the U.S. Army. During their two-week stay in Vietnam, Applicant and his son spent one week at the beach and traveled around to tourist sites the other week. Applicant's father accompanied them. The older of his two sisters visited Applicant at their father's home one evening, and Applicant had dinner with her and his brother. He had no contact with his youngest sibling, who was only about five years old when he left Vietnam.

In August 2001, Applicant went to the local police and reported a domestic assault and battery; his spouse had become physically assaultive, striking him with a broom handle. Applicant also complained that she had gone after him with a knife in the past and she had stabbed several doors in the home. Observing a large bruise around Applicant's elbow and knife marks in the home consistent with his complaints, the police arrested his spouse at her place of employment. Acting on a complaint of abuse by Applicant's spouse and observing a bruise on her arm the morning after she had been taken into custody, the police subsequently filed assault and battery with a dangerous weapon and witness intimidation charges against Applicant. In court in November 2001, Applicant's spouse asserted marital privilege and the charges were dismissed for failure to prosecute.

On December 19, 2001, Applicant executed a security clearance application (SF 86) on which he disclosed his birth in Vietnam, the Vietnamese residency and citizenship of his father, the elder of his two sisters and two brothers, and his travel to Vietnam for two weeks in late May and early June 1998. Applicant inadvertently failed to list his youngest sister, a resident citizen of Vietnam, who was born in 1970. Applicant also responded "NO" to the criminal record inquiries, including question 26 ("In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25? (Leave out traffic fines of less than $150 unless the violation was alcohol or drug related.) For this item, report information regardless of whether the record in your case has been 'sealed' or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 31 U.S.C. 844 or 18 U.S.C. 3607."). Since he had not been arrested as he understood it (not handcuffed by the police and taken to court) and the charges had been dismissed (not prosecuted), he thought the question did not apply to him.

On May 12, 2003, Applicant was interviewed by a Defense Security Service (DSS) special agent about possible abuse of his spouse and children. Applicant acknowledged marital difficulties with his spouse (including mutual physical assault) that started when she went into the workforce against his wishes in 1993 and she failed to care for their children as he would have liked. He admitted slapping her, although only after she struck first, "several times" a year to August 2001. He also acknowledged striking his children with a wood stick, but claimed to have had self control. Concerning the August 2001 incident, Applicant gave an account consistent with what he had told the police, and he denied that he had struck his spouse that evening. He explained that he decided to drop the assault charges against his spouse, and she did not pursue the charges against him. The state's department of social services became involved, visiting the home about five times. Applicant maintained that with the help of the social worker, he had "learned [his] lesson" and no longer hit his children. He reported better marital relations with his spouse since she had stopped working. There is no indication in the record that Applicant was asked by the agent why he had not reported the assault and witness intimidation charges on his SF 86.

Applicant is held in high-regard at work. On the recommendation of a principal software engineer aware of his performance in hardware design, Applicant was transferred into the software laboratory in Summer 2000. The coworker who recommended the transfer considers Applicant to be hardworking, dependable, "a valuable asset." The manager who has overseen Applicant's work since June 2002 has found the quality and quantity of Applicant's work to be very good. In her opinion, Applicant's knowledge and experience is critical to the program. She knows of no reason to doubt his integrity, work ethic, or commitment to the job.

Applicant's father and three of his four siblings remain resident citizens of Vietnam. None of them have ever worked for the communist government in Vietnam. His father, who is 86 years old, had been a peasant farmer. He lives with Applicant's brother, who is a peasant farmer in a rural area of Vietnam. His brother is married to a farmer and has two children. Applicant's two sisters are nurses. The elder of his sisters is married to a farmer who plants and harvests fruit and coffee with Applicant's brother. Applicant contacts his father in Vietnam by telephone about three times per year on special occasions (New Year's, his father's birthday). He intends to not travel to Vietnam again until he is retired from his defense contractor job. Applicant does not send any financial support to his family members in Vietnam.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authorities to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

After considering all the evidence in this case, the following adjudicative guidelines are pertinent:

Foreign Influence. A security risk may exist when an individual's immediate family, including co- habitants, and other persons to whom he or she may be bound by affection, influence, or obligations 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.A2.1.1.)

Personal Conduct. 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. ( ¶ E2.A5.1.1.)

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

Applicant's father and three of his four siblings are resident citizens of Vietnam. In determining whether an applicant's family ties in a foreign country pose an unacceptable security risk, the administrative judge must consider the record evidence as a whole. Common sense suggests that the stronger the ties of affection or obligation, the more vulnerable a person is to being manipulated if the relative, cohabitant, or close associate is improperly influenced, brought under control, or even used as a hostage by a foreign intelligence or security service. Applicant has a personal bond with his father despite their in-person contact being limited to one two-week time frame in the past 30 years. He also contacts his father by telephone, albeit infrequently. Disqualifying condition ¶ 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, clearly applies because of his relationship with his father. The same degree of affection does not exist with respect to his brother and the elder of his two sisters in Vietnam, although there is a bond of obligation that exists by virtue of the fact that his father depends on Applicant's brother for his shelter and financial support. Applicant visited with his brother and this sister when he was in Vietnam in the May/June 1998 time frame. In contrast, Applicant is sufficiently estranged from his youngest sister that her Vietnamese residency and citizenship cause little Guideline B concern.

Applicant's travel to see his father in 1998 was alleged as disqualifying in its own right (SOR ¶ 1.c.). While the risk of coercion, exploitation or pressure is increased by Applicant placing himself within Vietnam's borders where his activities could be monitored unwillingly, his lone trip to Vietnam is significant primarily as evidence of the bond between Applicant and his father. The U.S. State Department reports that local security officials in Vietnam have called in some U.S. citizens of Vietnamese origin for "discussions" not related to any suspected or alleged legal violation, and some foreign visitors to Vietnam have been arbitrarily detained. See Consular Information Sheet Vietnam (information current as of July 7, 2005) However, there is no evidence Applicant brought undue attention to himself when he was within Vietnam's borders. To the contrary, Applicant testified that when he entered Vietnam, he reported his son's status as "student" as he did not want the Vietnamese authorities to know his son was in the U.S. Army. Furthermore, any concerns that he could be personally detained are overcome by Applicant's credible intention to not travel to Vietnam again until he is retired from his defense contractor position.

As for the foreign influence concerns raised by the foreign citizenship and foreign residency of Applicant's father, brother, and elder of his two sisters in Vietnam, the concerns may be mitigated where it can be determined the family members 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 Applicant to choose between loyalty to them and the U.S. (see MC ¶ E2.A2.1.3.1.). With the fall of the South Vietnamese government, Applicant's uncle was executed and his father spent a year in a prison for reindoctrination. Thirty years have since passed with Applicant's father and brother laboring in the fields. There is nothing about their present situations likely to call attention to their activities. Similarly, Applicant's sister is a nurse who cares for people in the home setting. It is not clear whether she is a qualified medical professional or is instead versed in homeopathic care. There is no evidence that any of his family members in Vietnam have ever been agents of a foreign power. While the foreign connections must also be evaluated in terms of whether they place an applicant in a position of vulnerability to be influenced by coercive or non coercive means, and Vietnam is a Communist state with a poor human rights record and history of hostility to the U.S., ⁽⁶⁾ the U.S. State Department reports that economic development has taken priority over adherence to ideological orthodoxy. Since the U.S. normalized diplomatic relations with Vietnam in July 1995, the U.S. and Vietnam have broadened political exchanges and economic trade. In December 2001, the U.S. and Vietnam entered into a bilateral trade agreement, expanding Vietnamese exports and direct U.S. investment in the Vietnamese economy. See Background Note: Vietnam, dated April 2005. Vietnam is less likely than in previous years to jeopardize its diplomatic and economic ties with the U.S., and Applicant's relatives are not considered to be at significant risk of undue foreign influence.

Applicant has developed significant ties to the U.S. that could minimize his vulnerability in the event undue coercion, pressure, or influence was to be placed on his relatives in Vietnam. Although he and his spouse have had marital difficulties (see discussion of Guideline E), those to whom he is closest are resident citizens of the U.S. His son, of whom is justifiably proud, serves in the U.S. Army. Applicant had served in the South Vietnamese Army, which was allied with the U.S. in the Vietnam War. After recovering from serious injuries, he was employed by the U.S. State Department in what was then South Vietnam until the mission was closed and he and his family then fled to the U.S., where he established a new life. Obviously, his ties to his family members were not enough to keep him in Vietnam, and he has no loyalty to the Communist government in Vietnam.

Applicant has also shown that he can be counted on to comply with the requirements of a clearance, and that he is willing to place the government's interests ahead of his own. Applicant has held a security clearance without adverse incident since 1984. His coworkers attest to his dedication and professional competence. He notified his employer of his trip to Vietnam in 1998 before he left, and intends no future trips until after he retires from his defense contractor employment. Any risk of undue foreign influence is very minimal, and I am persuaded Applicant will act in favor of U.S. interests should he find himself in a position of having to choose between his loyalties to his family members and the U.S. SOR ¶¶ 1.a., 1.b., and 1.c. are resolved in his favor.

Under Guideline E, personal conduct, serious judgment concerns are implicated by physically abusive behavior. Applicant was charged in August 2001 with assault and battery with a dangerous weapon (broom handle) and witness intimidation. The dismissal of the charges against him does not immunize his conduct from consideration for security clearance purposes, and failure to prosecute based on a marital privilege does not prove he was innocent. Applicant claims his spouse struck him without provocation with the broom stick while he sat at his computer. She would not desist and broke "into pieces" a chair that he had picked up and held against himself for protection. He "got mad" and threatened to call the police, whereupon she left the premises with the telephone. Applicant then walked to the police station where he filed a complaint against her and she was subsequently arrested. (Tr. 56-57) The police report, admitted as government exhibit 4, confirms Applicant complained of an unprovoked attack. Police observed a large bruise developing around Applicant's elbow area consistent with a defensive wound and marks in the chair consistent with Applicant's claim that he had used it for protection. When she was booked, Applicant's spouse denied striking him, but the police were unable to understand her due to her excited state and the language difficulties. The following morning, while she was still in police custody, Applicant's spouse showed the police "two large fresh bruises," which she complained had been inflicted on her by Applicant the day before; she denied striking Applicant. Applicant's daughter complained that Applicant hit her in the past with a wooden stick, but she also confirmed that she had seen her mother with the broom handle and striking the chair her father was holding. When interviewed by the DSS agent, Applicant did not deny that he had hit his daughters with a stick made of wood, including in the leg, or that he had his spouse had marital disputes that escalated into mutual physical assault, but he continued to deny striking his spouse on the day of her arrest. There is insufficient evidence of record to substantiate the criminal charges filed against Applicant in August 2001.

However, he clearly exhibited poor judgment and lack of self-control in physically striking his spouse (whether or not provoked) and hitting his daughters with a wooden stick on occasion before August 2001. The state's department of social services would have not visited Applicant's home on about five occasions if there had been no concerns in this regard. Yet, there is no evidence of any abuse of his spouse or children since 2001. Applicant testified that he learned his lesson and no longer hits his children. Applicant's spouse stopped working outside of the home, eliminating a major source of Applicant's anger with his spouse and thereby minimizing the risk of recurrence of physical assault on his spouse. Security clearance determinations are not designed to punish an applicant for past wrongdoing, but rather involve an assessment of future risk. Among the factors that must be considered in every case are the frequency and recency of the conduct (¶ E2.2.1.3.), the presence or absence of rehabilitation and other pertinent behavioral changes (¶ E2.2.1.6.), and the likelihood of continuation or recurrence (¶ E2.2.1.9.). The poor judgment concerns caused by assaultive behavior did not extend to his job for the defense contractor, and are sufficiently remote to find for him with respect to SOR ¶ 2.a.

As for Applicant's failure to report the criminal charges on his SF 86, DC ¶ E2.A5.1.2.2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities, is potentially security disqualifying, but only if the omission of the criminal charges was intentional. Applicant has consistently denied deliberate falsification of his SF 86, averring he thought he had not been arrested since he appeared voluntarily in court in response to a summons to answer charges that were dismissed. There is no evidence Applicant was ever taken into custody by the police and he testified that he understood question 26 to apply to the situation where one is arrested by the police, put in a police car, and then taken to jail. (Tr. 65) Although he earned two engineering degrees in the U.S., he had no prior experience with the criminal legal system in the U.S. Under the circumstances (non-U.S. native, his spouse was arrested, and the charges were dismissed), his denial of intentional falsification is accepted. SOR ¶ 2.b. is found for him as well.

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

Paragraph 2. Guideline E: FOR THE APPLICANT

Subparagraph 2.a.: For the Applicant

Subparagraph 2.b.: 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 is granted.