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ISCR Case 17-00772.h1 — CASE

ISCR Case 17-00772.h1granted

Case Headnote

ISCR Case No. 17-00772.h1

grantedNov 6, 2017· Hon. Candace Le'i Garcia· hearing

Summary

A 29-year-old U.S. citizen, working as a consultant for a defense contractor, was granted a security clearance despite initial concerns under Guideline B (Foreign Influence). The concerns stemmed from her German-born husband and in-laws, all of whom are members of the German military. Specifically, Disqualifying Conditions AG ¶ 7(a) and AG ¶ 7(b) were raised.

However, the applicant successfully mitigated these issues by demonstrating strong ties to the United States and a clear commitment to national security. She has no history of security violations and remains current on all required security training. Furthermore, the applicant committed to reporting any attempts at foreign influence.

The judge found that the applicant presented a low risk of divided allegiance, applying Mitigating Conditions AG ¶ 8(b) and AG ¶ 8(c). A key factor in the decision was her husband's stated intention to settle permanently in the U.S. and not re-enlist in the German military. Based on these factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated strong ties to the United States and a commitment to national security.
She has no security violations and is current on her security training requirements.
The applicant's husband intends to settle in the U.S. and does not plan to re-enlist in the German military.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons

Mitigating

AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties
AG ¶ 8(c)appliedCasual and Infrequent Contact with Foreign Citizens

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedApr 27, 2017
Answer filedMay 17, 2017
Hearing heldAug 17, 2017
Decision dateNov 6, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Strong U.S. Ties in Security Clearance Decisions
Consideration of the Whole-person Concept in Adjudication

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

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated foreign influence security concerns related to her connections with individuals in Germany, including her husband and in-laws, who are in the German military. The judge ruled in favor of the applicant on all allegations under Guideline B, concluding that her ties to the U.S. and her commitment to national interests outweighed any potential risks.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Home or Property · U.S. Career or Business · Community or Civic Involvement · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a–1.d	4 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Immediate Family	—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 17-00772 ) Applicant for Security Clearance )

For Government: Gatha Manns, Esq., Department Counsel For Applicant: Jacob Ranish, Esq.

11/06/2017 ______________

STATEMENT OF CASE

______________

GARCIA, Candace Le’i, Administrative Judge:

Applicant mitigated the foreign influence security concerns. Eligibility for access to classified information is granted.

Statement of the Case

On April 27, 2017, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline B (foreign influence). The action was taken under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG).1

Applicant responded to the SOR on May 17, 2017, and requested a hearing before an administrative judge. The case was assigned to me on July 20, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on July 26, 2017, scheduling the hearing for August 17, 2017. I convened the hearing as scheduled.

The Government’s exhibit list was appended to the record as Hearing Exhibit (HE) 1. Government Exhibit (GE) 1 was admitted in evidence without objection. Applicant requested that I take administrative notice of certain facts about Germany. The request was not admitted in evidence but was appended to the record as HE 2. Applicant testified and submitted Applicant’s Exhibits (AE) A through N, which were admitted in evidence without objection.

At Applicant’s request and with no objection from the Government, I left the record open until August 31, 2017 for additional documentation. Applicant timely provided documentation, which I marked as AE O. The Government’s email indicating no objection to Applicant’s post-hearing submission was appended to the record as HE 3, and AE O was admitted in evidence without objection. DOHA received the hearing transcript (Tr.) on August 25, 2017.

FINDINGS OF FACT

Applicant admitted the SOR allegations.2 She is a 29-year-old native-born U.S. citizen, employed as a consultant by a defense contractor since February 2016. She was first granted a DOD security clearance in 2014. She was granted a security clearance by the U.S. Department of State in 2009. She obtained a high-school diploma in 2006, a bachelor’s degree in 2010, and two master’s degrees in 2015. She is pursuing a graduate certificate and anticipates receiving it in 2018. As of the hearing date, she was engaged to marry, in September 2017, a German-born citizen residing in Estonia, and she did not have any children.3

Applicant’s then-fiancée, now-husband, is 31 years old. She met and dated him in 2004, when he was a foreign exchange student at Applicant’s high-school for one year. Upon his return to Germany, they continued dating for two years. They ended their relationship when Applicant went to college in 2006. When Applicant lived and studied in Europe as part of her master’s studies from August 2014 to June 2015, she rekindled contact with him when she was in Berlin in late 2014. They resumed dating in 2015. Since she completed her studies in Europe in June 2015, she returned to the United States and their relationship has been one of long-distance. They got engaged in August 2016. He has visited Applicant in the United States four times yearly. She visited him in Germany twice in 2015 and in 2016. She also visited him in Estonia twice in 2015 and in 2017.4 He is a captain in the Germany military, assigned to a NATO defense center in Estonia. He works alongside NATO members and allies, to include the United States, as an electrical engineer and in matters related to cyber defense. He holds security clearances with NATO and the German military.5

He joined the German military at the age of 18, initially to serve his compulsory two-year service. He then chose to sign a 12-year contract with the German military at the end of his compulsory service, primarily because of the educational benefits he would receive in exchange. His contract ends in June 2019, and he does not have any intentions to re-enlist. Applicant is unaware of any benefit he would receive from the Germany military at the end of his contract. Applicant stated that he decided in 2011, before they resumed dating, not to re-enlist. When his contract ends, they intend to settle and raise a family in the United States, and they do not have any intentions of living in Germany. She plans to sponsor his move to the United States, and he intends to seek permanent residency. He hopes to get a private sector job in the United States in his areas of expertise.6

Applicant’s father-in-law and brother-in-law are citizens and residents of Germany. They are in the German military. Her father-in-law has served in the German military for 34 years and is a lieutenant colonel. He works in radio communications and holds security clearances with NATO and the German military. He intends to retire in 2025. Applicant is unsure whether he would receive retirement benefits from the German military upon his retirement. She sees him during the holidays and they converse on occasion. They do not discuss work. She stated that she is not close to her father-in-law.7

Applicant’s brother-in-law is a lieutenant in the German military. He chose to serve in the German military to receive schooling. He studied medicine at a university in Germany. He works as a military neuroscience physician. He has access to patient protected healthcare data, but Applicant does not believe he has ever held a security clearance with the German military. His wife is also a lieutenant in the Germany military, and she expects to complete her studies to also become a physician in December 2017. She also has access to patient protected healthcare data, and she has never held a security clearance with the German military. Applicant is the godmother to their second child, age two. Applicant sees her brother-in-law and his spouse during the holidays and they talk sporadically. She stated that her husband is not close to his brother. They see each other during the holidays and talk to each other once monthly. She has not given any gifts to her brother-in-law or his family, but her husband has done so on their behalf.8 Applicant’s friend, a 29-year-old citizen and resident of Germany, serves in the German military as a commissioned officer. He is a first lieutenant in the reserve. He does not hold a security clearance with the German military. They met when they were classmates in the same graduate program; he was in the German military when they met. She last saw him in June 2015. She had monthly electronic contact with him from July 2013 to June 2015. Since then, they have had sporadic contact on social media. She is unaware of what he does.9

Applicant’s gross monthly income is $4,800, or $64,000 yearly. She does not own any property, but her assets in the United States are valued at $50,000. She expects to inherit $500,000 from her parents. She did not intend to have a shared bank account with her husband because she preferred to keep her bank accounts in the United States. His gross monthly income is US $4,200. He does not own any property. He has stocks in a private company and owns a car. To the best of her knowledge, he is not expected to inherit any money from his family. They have not received any financial support from his family.10

Applicant stated that when she and her husband resumed dating in 2015, they made it clear that they would not discuss the details of their careers with each other, as they anticipated a time when they both would have a job that would require a clearance. She credibly testified that she would report any attempt by anyone, to include her husband and her in-laws, to obtain information from her about her work. She has never had any security violations, she is current on her security training requirements, and she has abided by her employer’s reporting requirements for foreign travel. She stated that her honor, duty, and allegiance lie with the United States.11

Applicant comes from a seven-generation family in the close-knit Adirondacks community, in which she remains heavily involved and desires to settle someday. She would never do anything to jeopardize her family’s standing in the community. Her parents and brother are native-born U.S. citizens and residents. Her brother served in the U.S. military, deployed to Iraq in 2010, and medically retired in 2015; her uncle currently serves in the U.S. military. She provided 15 character references from individuals, to include a higher-level supervisor as well as a career manager, who spoke of her favorably. They described her as reliable, of sound judgment, honest, and trustworthy. They stated that her allegiance lies with the United States. One individual described her family as pillars of their community.12

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. 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 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.”

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.” The applicant has the ultimate burden of persuasion to obtain a favorable security decision.

A person who seeks access to classified information enters 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of Exec. Or. 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 Exec. Or. 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline B, Foreign Influence

The security concern 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. The following 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; and

(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.

Applicant’s husband, father-in-law, brother-in-law, and friend are citizens of Germany. Her husband resides in Estonia; her father-in-law, brother-in-law, and friend reside in Germany; all of them are in the German military. The Government did not present any evidence of a heightened risk with Germany, however the record establishes that these individuals’ ties to the German military present a heightened risk. These familial and social connections pose a conflict of interest. AG ¶¶ 7(a) and 7(b) are established by their positions in the German military.

Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8. The following are potentially applicable:

(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; and

(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.

Applicant’s husband and his family, and Applicant’s friend, are German citizens serving in the German military. Accordingly, AG ¶ 8(a) is not established for the reasons set out in the above discussion of AG ¶¶ 7(a) and 7(b). Applicant is not close to her friend. She last saw him in June 2015, and they have since had only sporadic contact on social media. She is unaware of what he does. AG ¶ 8(c) is established as to Applicant’s friend. I find SOR ¶ 1.dfor Applicant.

While Applicant stated that she is not close to her father-in-law and she has only sporadic contact with her brother-in-law, she has a relationship to them through her husband. She talks to her in-laws and sees them during the holidays. She is also the godmother to her brother-in-law’s second child. While she stated that her husband and his brother are not close, they see each other during the holidays and talk to each other once monthly. Her husband has given gifts to his brother’s family on their behalf. AG ¶ 8(c) is not established as to Applicant’s husband, father-in-law, and brother-in-law.

Applicant is a native-born U.S. citizen. She was raised, educated, and has worked in the United States. All of her financial interests are in the United States. Her husband’s income comes from the German military, however, he does not own any property in Germany aside from a car, his stocks are in a private company, and he does not expect to inherit any money from his family in Germany. His contract with the German military ends in June 2019. He does not have any intentions to re-enlist. They intend to settle and raise a family in the United States, and they do not have any intentions of living in Germany. Applicant is extensively involved in her close-knit community in the United States. She would never do anything to jeopardize her family’s standing in the community. She has never had any security violations, she is current on her security training requirements, and she has abided by her employer’s reporting requirements for foreign travel. Her references described her as reliable, of sound judgment, honest, and trustworthy. She stated that her honor, duty, and allegiance lie with the United States. I am satisfied that Applicant met her burden to demonstrate that she would resolve any conflict of interest in favor of the U.S. interest. AG ¶ 8(b) is established.

WHOLE PERSON CONCEPT

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 have incorporated my comments under Guideline B in my whole-person analysis. After weighing the disqualifying and mitigating conditions under Guideline B, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the foreign influence security concerns. Accordingly, I conclude she has carried her burden of showing that it is clearly consistent with the national interest to continue her eligibility for access to classified information.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B: FOR APPLICANT Subparagraphs 1.a - 1.d: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ Candace Le’i Garcia Administrative Judge

FOOTNOTES

1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Applicant’s response to the SOR. 3 Tr. at 17-27, 34, 66-67, 79; GE 1. 4 Tr. at 27-39, 50-55, 68-71; GE 1; AEs J, N. 5 Tr. at 27-39, 44, 55-61; GE 1; AEs A, B, K. 6 Tr. at 27-39, 44, 57-61, 67-72, 78-80; GE 1; AEs A, D, O, N. 7 Tr. at 39-44, 61-62, 67, 70-75; AEs E, F, L, N. 8 Applicant’s response to the SOR; Tr. at 41-44, 62-66, 70-71, 73-74, 76-77; AEs G, H, N. 9 Tr. at 45-46, 63-65, 75-76; GE 1; AE I. 10 Tr. at 18-26, 38, 43-44, 46-50, 73-75, 77-79; AEs C, M. 11 Tr. at 35-38, 74-76, 79; AEs A, N. 12 Tr. at 18-26, 38, 43-44, 46-50, 73-75; AE N.