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ISCR 08-04990.a1: Guideline B security clearance appeal, denied (2010) · CASE

ISCR Case 08-04990.a1denied

Case headnote

ISCR Case No. 08-04990.a1

Mar 18, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance application was denied under Guideline B (Foreign Influence). The applicant, a military retiree, had a good security record and received recommendations from prominent individuals. However, the judge identified disqualifying conditions related to the applicant's family ties to Russia.

Specifically, the applicant's daughter-in-law is a citizen and resident of Russia. Furthermore, her father was a retired official of the former Soviet Union and had participated in a Soviet intelligence organization. While mitigating conditions were considered, the judge ultimately determined that these family connections to Russia posed an unacceptable potential risk to U.S. national security interests.

Consequently, the security clearance was denied, with the judge prioritizing national security over the applicant's otherwise positive record.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG B3rejectedMitigating ConditionsThe judge found that the applicant's prior good security record did not sufficiently mitigate the foreign influence concerns.

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedDec 8, 2008
Answer filed—
Hearing heldNov 9, 2009
Decision dateMar 18, 2010

Cite for

Foreign Influence Concerns Under Guideline B
Impact of Family Ties on Security Clearance Decisions
Prior Good Security Record as a Mitigating Factor in Foreign Influence Cases

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved an applicant seeking a security clearance who was denied due to foreign influence concerns related to his daughter-in-law's family ties to Russia. The applicant argued that the Judge failed to consider favorable evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no error in the application of the law or the evaluation of evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge failed to consider significant record evidence favorable to him.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argued that the Judge's application of the pertinent mitigating conditions was erroneous.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge considered the evidence and provided a rational connection between the facts and the decision made.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan (Chair)
William S. Fields
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

The complete, official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline B DIGEST: Applicant’s daughter-in-law is also a citizen and resident of Russia. Her father is a retired official of the former Soviet Union who, participated in a Soviet intelligence organization and worked to undermine U.S. security interests. A Judge is presumed to have considered all the evidence in the record. Adverse decision affirmed. CASENO: 08-04990.a1 DATE: 03/18/2010 DATE: March 18, 2010 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04990

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Tovah Minster, Esq., Department Counsel FOR APPLICANT John D. Altenburg, Jr., Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 8, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 9, 2009, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge failed to consider significant record evidence favorable to Applicant; whether the Judge’s application of the pertinent mitigating conditions was erroneous; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a military retiree seeking a security clearance as an employee of a Government contractor. While in the military he performed security and criminal investigations. Applicant’s son is married to a citizen of Russia. They met in a U.S. graduate school. The two were married in a civil ceremony in the U.S. and in a religious ceremony in Russia. A naturalized U.S. citizen, Applicant’s daughter-in-law is also a citizen and resident of Russia. Her father is a retired official of the former Soviet Union who, during his government career, participated in a Soviet intelligence organization and worked to undermine U.S. security interests. Applicant visited Russia to attend the wedding ceremony, and he stayed in an apartment and in a vacation home of his son’s father-in-law. He subsequently paid two other visits to Russia, in the late 2000s. In making these visits, Applicant complied with U.S. Government reporting requirements. Prominent individuals in the Defense community recommend Applicant for a security clearance. Although the U.S. and Russia share strategic interests, the relationship between the two countries has been strained by Russian involvement in Georgia, threats against Poland, killings of Russian journalists, and the country’s use of oil as a means of political pressure against Ukraine, Lithuania, and the Czech Republic. Russia has targeted U.S. technologies and has sought protected information through industrial espionage. It has provided missile technology to China, Iran, Syria, and Venezuela, which can be used in constructing weapons of mass destruction. The Russian Ministry of Internal Affairs and Federal Security Office monitor internet and e-mail traffic. Russian law enforcement agencies have access to personal information of telephone users. Applicant contends that the Judge did not consider record evidence which he believes to be favorable to his case for mitigation. For example, he argues that the father-in-law’s notoriety militates against his serving as a means through which Applicant might be pressured to compromise U.S. security interests. A Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009); ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). Applicant’s presentation on appeal is not sufficient to rebut that presumption. The decision reflects that the Judge considered the entire record and that she provided a reasonable interpretation of the evidence. Applicant points to his prior good security record as a factor that mitigates the security concerns in his case. Applicant’s security record is evidence that the Judge was obliged to consider. The Judge refers to that record several times in the Decision. This is a close case, and as such the Judge was obligated to resolve it in favor of national security rather than in favor of Applicant. See, e.g., ISCR Case No. 05-12088 at 4 (App. Bd. Oct. 24, 2007). The Government need not wait until an individual mishandles or fails to safeguard classified information before it can make an unfavorable security clearance decision. See, e.g., ISCR Case No. 08-00435 at 3 (App. Bd. Jan. 22, 2009), citing Adams v. Laird, 420 F. 2d 230, 238-239 (D. C. Cir. 1969), cert. denied 397 U.S. 1039 (1970). We have examined the Judge’s decision, both as to her application of the mitigating conditions and the whole-person factors. In light of Applicant’s son’s presence in Russia and his family circumstances there, we conclude that the Judge articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse decision is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board