ISCR Case No. 16-00524.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-00524 ) Applicant for Security Clearance )

For Government: Andrew Henderson, Esq., Department Counsel For Applicant: Lee Schachter, Esq. Applicant’s Counsel

January 12, 2017 ______________

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CEFOLA, Richard A., Administrative Judge:

Applicant submitted a Questionnaire for National Security Positions (SF 86 Format) on April 22, 2015. On June 17, 2016, after reviewing the application and information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, Fort Meade, Maryland, sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant him eligibility for access to classified information.1 The SOR detailed the factual reasons for the action under the security guidelines known as Guidelines B and C for foreign influence and foreign preference. Applicant timely answered the SOR and requested a hearing.

The case was assigned to me on October 12, 2016. The hearing was held as scheduled on November 10, 2016. At the close of the evidence and after closing arguments, I proposed to the parties that this case was appropriate for a summary disposition in Applicant’s favor. Applicant did not object. Department Counsel had 10 days to consider the matter and provided written notice on December 14, 2016 that Department Counsel did not object.

Applicant has signed a written declaration affirming that he “will not exercise any rights, benefits, privileges, or obligations as a citizen of a foreign country while holding a security clearance . . . .” His foreign passport was “personally destroyed” by a Facility Security Officer. Furthermore, Applicant rarely speaks to his retired mother-in-law, and has sold his foreign property interest. Applicant has held a clearance for more than five years without incident, and has an excellent reputation for trustworthiness. Based on the record evidence as a whole, I conclude that Department Counsel presented sufficient evidence to establish the facts alleged in the SOR under Guidelines B and C. I also conclude that Applicant presented sufficient evidence to explain, extenuate, or mitigate the facts admitted by Applicant or proven by Department Counsel. In particular, I conclude that the security concerns are resolved under the following mitigating conditions: AG ¶¶ 8(a), and 11(e).

The concerns over Applicant’s alleged foreign preference and foreign influence do not create doubt about his current reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also gave due consideration to the whole-person concept. Accordingly, I conclude that he met his ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant him eligibility for access to classified information. This case is decided for Applicant.

Richard A. Cefola Administrative Judge

1 This case is adjudicated under Executive Order 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended, as well as Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), effective within the Defense Department on September 1, 2006, apply here. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). The AG replaced the guidelines found in Enclosure 2 to the Directive prior to September 1, 2006, and a copy of these guidelines was provided directly to the Applicant in this case.