ISCR Case 01-00130.h1

Case Headnote

ISCR Case No. 01-00130.h1

deniedAug 8, 2001· Hon. Barry M. Sax· hearing

Summary

A 47-year-old Senior Engineer/Scientist for a DoD contractor was denied a security clearance due to concerns under Guidelines B (Foreign Influence), C (Foreign Preference), and E (Personal Conduct). The applicant, born in a foreign country (FC) in 1954, became a naturalized U.S. citizen in 1990 but retained his FC citizenship and passport. He used his FC passport for multiple visits to FC and a third country between 1994 and 1999, citing convenience and travel discounts.

Further concerns arose from the applicant's foreign ties, including his father and two brothers who are FC citizens residing in FC. His father was a cabinet minister and university board member in the FC government, and an uncle was also an FC government official. Notably, his older brother is a senior officer in the FC Air Force. The applicant himself served in the FC Air Force from 1972 to 1991 and voted in an FC election in 1991 or 1992.

While the judge found that the applicant did not intentionally misrepresent information on his security clearance application regarding his foreign military service or contact with foreign government representatives, the cumulative weight of his dual citizenship, continued use of a foreign passport, and extensive family ties to foreign nationals, including those in government and military roles, led to the denial of his security clearance.

Why the Applicant Was Denied

The applicant holds dual citizenship and has not surrendered his foreign passport, which is a disqualifying condition under Guideline C.
The applicant's close family ties to foreign nationals, including a father and brothers who are citizens of the foreign country, raise security concerns under Guideline B.
The applicant's past military service in the foreign country's air force and voting in foreign elections further exacerbate the concerns under Guidelines B and C.

Conditions Referenced

Disqualifying

B1appliedForeign Influence - Immediate Family Member Is a Citizen of a Foreign Country.
C1appliedForeign Preference - Exercise of Dual Citizenship.
C2appliedForeign Preference - Possession And/or Use of a Foreign Passport.
C3appliedForeign Preference - Military Service for a Foreign Country.
C8appliedForeign Preference - Voting in a Foreign Country.

Mitigating

C1appliedForeign Preference - Dual Citizenship Based Solely on Parents' Citizenship or Birth in a Foreign Country.
C2rejectedForeign Preference - Indicators of Possible Foreign Preference Occurred Before Obtaining U.S. Citizenship.
C3rejectedForeign Preference - Willingness to Renounce Dual Citizenship.

Key Rule Quoted

“"Any determination under this order shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned."”
— Executive Order 10865

Procedural Posture

SOR issuedApr 24, 2001
Answer filedMay 9, 2001
Hearing heldJul 11, 2001
Decision dateAug 8, 2001

Cite For

Disqualifying Conditions Related to Dual Citizenship Under Guideline C
Security Concerns Arising From Foreign Family Ties Under Guideline B
Mitigating Factors for Personal Conduct Under Guideline E

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

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant's father is a citizen of FC and resides there;	Against Applicant	Parent in Foreign Country Immediate Family	FC	Unknown	—	—	—
1.b	Applicant's two brothers are citizens of FC and reside in that country. One is a few years older than Applicant. The other is a few years younger. The two brothers are married and have seven children between them. Their wives and children are all FC citizens and reside in FC (Tr at 30);	Against Applicant	Sibling in Foreign Country Immediate Family	FC	Unknown	—	—	—
1.c	In the mid-1960s, Applicant's father was a cabinet minister in the FC government (Tr at 32) and is/was a university board member. His uncle was also a FC government official;	Against Applicant	Unspecified Foreign Relationship Other GOVT-AFFILIATED	FC	Unknown	—	—	—
1.d	Applicant's older brother is a senior officer in the FC Air Force.	Against Applicant	Sibling in Foreign Country Immediate Family GOVT-AFFILIATED	FC	Unknown	—	—	—
1.e–1.f	2 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant	Unspecified Foreign Relationship Other	—		—	—	—

Allegation

Finding

Relationship

Country

Response

Disqualifying (¶7)

Mitigating applied (¶8)

Mitigation

1.a

Applicant's father is a citizen of FC and resides there;

Against Applicant

Parent in Foreign Country

Immediate Family

Unknown

—

1.b

Applicant's two brothers are citizens of FC and reside in that country. One is a few years older than Applicant. The other is a few years younger. The two brothers are married and have seven children between them. Their wives and children are all FC citizens and reside in FC (Tr at 30);

Against Applicant

Sibling in Foreign Country

Immediate Family

Unknown

—

1.c

In the mid-1960s, Applicant's father was a cabinet minister in the FC government (Tr at 32) and is/was a university board member. His uncle was also a FC government official;

Against Applicant

Unspecified Foreign Relationship

Other

GOVT-AFFILIATED

Unknown

—

1.d

Applicant's older brother is a senior officer in the FC Air Force.

Against Applicant

Sibling in Foreign Country

Immediate Family

GOVT-AFFILIATED

Unknown

—

1.e–1.f

2 sub-charges — specific text not stated in this decision (against the applicant).

Against Applicant

Unspecified Foreign Relationship

Other

—

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant was born in a foreign country (FC) in 1954 and is a citizen of that country by birth. He retained his FC citizenship after emigrating to the United States in 1983 and becoming a naturalized U.S. citizen in 1990 (GX 1). He has thus had dual U.S. - FC citizenship since 1990.	Against Applicant	Foreign Citizenship Acquisition or Application	Admitted	(a) applying for and/or acquiring citizenship in any other country	—	—
1.b	Applicant received his first FC passport in 1974, when he was 19. He last renewed the FC passport in May 1993, about three years after becoming a U.S. citizen in 1990. The FC passport expires in 2003 (Tr at 21). Applicant also holds a valid U.S. passport (Tr at 20);	Against Applicant	Foreign Passport Possession or Use	Admitted	(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—
1.c	Applicant used his FC passport to visit FC, in lieu of his U.S. passport, in 1994, 1995, 1996, 1998, and 1999. He intends to continue using his FC passport for this purpose in the future;	Against Applicant	Foreign Passport Possession or Use	Admitted	(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—
1.d	In April 1999, while visiting FC, Applicant used his FC passport, in lieu of his U.S. passport, to visit a third country, which shares a land border with FC. He did so because of its "convenience." He was able to obtain travel discounts available to citizens of FC. His wife and daughter used their U.S. passports (Tr at 22);	Against Applicant	Foreign Passport Possession or Use	Admitted	(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—
1.e	Applicant served as pilot in the FC Air Force from 1972 to 1980, in an active status, and was then in the reserves from 1980 until 1991, the year after he became a U.S. citizen;	Against Applicant	Foreign Military or Government Service	Admitted	(c) failure to use a U.S. passport when entering or exiting the U.S.	—	—
1.f	Applicant voted in a FC election in 1991 or 1992, during the nine months he was in residence at a FC university, again after he became a U.S. citizen. Other than that occasion, he has not voted in FC elections.	Against Applicant	Foreign Voting	Admitted	(d) participation in foreign activities, including (1) assuming/attempting employment, position, or political office in a foreign government or military o…	—	—

Allegation

Finding

Type

Response

Disqualifying (¶10)

Mitigating applied (¶11)

Mitigation

1.a

Applicant was born in a foreign country (FC) in 1954 and is a citizen of that country by birth. He retained his FC citizenship after emigrating to the United States in 1983 and becoming a naturalized U.S. citizen in 1990 (GX 1). He has thus had dual U.S. - FC citizenship since 1990.

Against Applicant

Foreign Citizenship Acquisition or Application

Admitted

(a) applying for and/or acquiring citizenship in any other country

—

1.b

Applicant received his first FC passport in 1974, when he was 19. He last renewed the FC passport in May 1993, about three years after becoming a U.S. citizen in 1990. The FC passport expires in 2003 (Tr at 21). Applicant also holds a valid U.S. passport (Tr at 20);

Against Applicant

Foreign Passport Possession or Use

Admitted

(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.

—

1.c

Applicant used his FC passport to visit FC, in lieu of his U.S. passport, in 1994, 1995, 1996, 1998, and 1999. He intends to continue using his FC passport for this purpose in the future;

Against Applicant

Foreign Passport Possession or Use

Admitted

(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.

—

1.d

In April 1999, while visiting FC, Applicant used his FC passport, in lieu of his U.S. passport, to visit a third country, which shares a land border with FC. He did so because of its "convenience." He was able to obtain travel discounts available to citizens of FC. His wife and daughter used their U.S. passports (Tr at 22);

Against Applicant

Foreign Passport Possession or Use

Admitted

(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.

—

1.e

Applicant served as pilot in the FC Air Force from 1972 to 1980, in an active status, and was then in the reserves from 1980 until 1991, the year after he became a U.S. citizen;

Against Applicant

Foreign Military or Government Service

Admitted

(c) failure to use a U.S. passport when entering or exiting the U.S.

—

1.f

Applicant voted in a FC election in 1991 or 1992, during the nine months he was in residence at a FC university, again after he became a U.S. citizen. Other than that occasion, he has not voted in FC elections.

Against Applicant

Foreign Voting

Admitted

(d) participation in foreign activities, including (1) assuming/attempting employment, position, or political office in a foreign government or military o…

—

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	Applicant incorrectly omitted material facts on his November 3, 1999 Security Clearance Application (SF 86) when, in response to Question "11. Your military History - Have you ever served in the military [including] foreign military service." Applicant answered No, when in fact, he had served in the FC Air Force, both active and reserved, from 1972 to 1991. At the same time, in responding to Question "Question 43 General Remarks, Applicant did state that he had served in the FC Air Force. This supports his claim that he misread Question 11 and thought it referred only to U.S. military service. Additional corroboration of Applicant's claim comes from his candor when he spoke with the Defense Security Service (DSS) agent on June 8, 2000 (GX 2). I have also considered his hearing testimony (Tr at 35 - 37). I find he did misread the question and did not intentionally seek to deceive DSS in his answer to Question 11.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Other	Denied	—	—	—
3.b	Applicant also provided incorrect material facts on the same November 3, 1999 SF 86 when, in response to Question "14. Your Foreign Activities - Contact with Foreign Government [including] its representatives, whether inside or outside the U.S., other than on official U.S. Government business." He answered No, when in fact, he knew he had been in contact with FC government representatives, as cited in SOR 2.c. and 2.d., above, specifically his older brother, and possibly his father. Applicant testified that he was not thinking of his father and brother as government officials when answering the question. When he was interviewed by DSS, he did mention his father and brother (Tr at 38, 39 and GX 2). I find his explanations to be credible by itself and, more importantly, in the context of the total record. I find Applicant's answer was not a deliberate act intended to mislead the government.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Other	Denied	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

3.a

Applicant incorrectly omitted material facts on his November 3, 1999 Security Clearance Application (SF 86) when, in response to Question "11. Your military History - Have you ever served in the military [including] foreign military service." Applicant answered No, when in fact, he had served in the FC Air Force, both active and reserved, from 1972 to 1991. At the same time, in responding to Question "Question 43 General Remarks, Applicant did state that he had served in the FC Air Force. This supports his claim that he misread Question 11 and thought it referred only to U.S. military service. Additional corroboration of Applicant's claim comes from his candor when he spoke with the Defense Security Service (DSS) agent on June 8, 2000 (GX 2). I have also considered his hearing testimony (Tr at 35 - 37). I find he did misread the question and did not intentionally seek to deceive DSS in his answer to Question 11.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Other

Denied

—

3.b

Applicant also provided incorrect material facts on the same November 3, 1999 SF 86 when, in response to Question "14. Your Foreign Activities - Contact with Foreign Government [including] its representatives, whether inside or outside the U.S., other than on official U.S. Government business." He answered No, when in fact, he knew he had been in contact with FC government representatives, as cited in SOR 2.c. and 2.d., above, specifically his older brother, and possibly his father. Applicant testified that he was not thinking of his father and brother as government officials when answering the question. When he was interviewed by DSS, he did mention his father and brother (Tr at 38, 39 and GX 2). I find his explanations to be credible by itself and, more importantly, in the context of the total record. I find Applicant's answer was not a deliberate act intended to mislead the government.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

Other

Denied

—

Loading case…

Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES