ISCR Case No. 20-03096

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 20-03096 ) ) Applicant for Security Clearance ) Appearances For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Pro se August 1, 2022

CEFOLA, Richard A., Administrative Judge: Statement of the Case On January 15, 2021, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guideline B. The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance. Applicant answered the SOR on May 20, 2021, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on February 8, 2022. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 22, 2022, scheduling the hearing for April 12, 2022. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 and 2, which were admitted without objection, and Hearing Exhibit (HX) I for Administrative Notice. Applicant testified on his own behalf. Applicant offered documents, which I marked

Applicant’s Exhibits (AppXs) A through H, which were admitted into evidence. DOHA received the transcript of the hearing (TR) on April 20, 2022.

At the hearing, the Government requested I take administrative notice of certain facts relating to South Korea. Department Counsel provided a six-page summary of the facts, supported by eleven Government documents pertaining to South Korea, identified as HE I. The documents provide elaboration and context for the summary. I take administrative notice of the facts included in the U.S. Government reports. They are limited to matters of general knowledge, not subject to reasonable dispute. They are set out in the Findings of Fact.

Applicant admitted to the allegations in SOR ¶¶ 1.a, 1.b, and 1.g. He denied SOR allegations ¶¶ 1.c~1.f. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is a 78-year-old employee of a defense contractor. He has been employed with the defense contractor, in a “casual on call . . . status” since 2016. He is not married. (TR at page 20 lines 1–15, and GX 1 at page 5.) Guideline B - Foreign Influence 1.a. and 1.g. Applicant has lived in South Korea since 1979, working for various U.S. Government organizations and U.S. defense contractors. (TR at page 18 line 2 to page 20 line 7, and AppX G.) Applicant’s “live-in girlfriend” is a citizen and resident of South Korea. They have cohabitated in her apartment since about 2018. She is retired after having worked for the U.S. Government. (TR at page 44 lines 10–20, and AppX A.) 1.b. Applicant has one friend who is a citizen and resident of South Korea. He works for the United States Forces Korea (USFK). Applicant had another friend who is a citizen and resident of South Korea. This past-friend got involved in receiving “kickbacks” from contractors, but Applicant has had no contact with this past-friend since about 2013, for nearly a decade. (TR at page 35 line 13 to page 38 line 9, at page 42 lines 5–14, at page 44 line 21 to page 45 line 17, and AppX B.) 1.c. Applicant no longer owns an apartment in South Korea. He sold it and now lives with his Korean girlfriend, as noted above. (TR at page 45 lines 18–21, and AppX C.)

1.d.~1.f. Applicant has no bank accounts in South Korea. (TR at page 25 line 24 to page 26 line 6, at page 45 lines 22–25, and AppXs D and E.)

Notice I take administrative notice of certain facts re South Korea: South Korea is a constitutional democracy governed by a president and a unicameral legislature. South Korean government espionage and collection activities have resulted in U.S. criminal prosecutions. South Korea has also been the unauthorized recipient of technology controlled under U.S. export laws. Finally, industrial espionage remains a high-profile concern relating to South Korea and South Korean companies. (GX I.)

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person who applies for access to classified information seeks to enter into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally

permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order (EO) 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

Guideline B - Foreign Influence The security concern relating to the guideline for Foreign Influence is set out in AG ¶ 6: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism. The guideline notes several conditions that could raise security concerns under AG ¶ 7. Four are potentially applicable in this case: (a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology; (e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion; and (f) substantial business, financial, or property interests in a foreign country, or in any foreign owned or foreign-operated business that could subject

the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest. Applicant lives with his Korean girlfriend. He also had contacts with a Korean who was taking kickbacks as an unauthorized aspect of his employment. The evidence is sufficient to raise these disqualifying conditions. AG ¶ 8 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 8 including: (a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States; (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;

(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; and (f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual. Applicant’s retired, live-in girlfriend, who worked for the U.S. Government, possesses no threat to national security. One friend works for USFK, and the other Applicant has not seen for nearly a decade. Applicant has little financial interest in South Korea, apart from his part-time employment with a U.S. contractor. Foreign Influence is found for Applicant.

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable

________________________ participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the Foreign Influence security concern.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are: Paragraph 1, Guideline B: FOR APPLICANT Subparagraphs 1.a~1.g: For Applicant

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant national security eligibility and a security clearance. Eligibility for access to classified information is granted. Richard A. Cefola Administrative Judge