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ISCR Case 01-23458.h1 — CASE

ISCR Case 01-23458.h1granted

Case Headnote

ISCR Case No. 01-23458.h1

grantedSep 16, 2003· Hon. Charles D. Ablard· hearing

Summary

A security clearance was granted to an applicant, a scientist of Chinese ancestry from Taiwan, despite allegations under Guidelines B (Foreign Influence), E (Personal Conduct), and K (Handling Protected Information).

Concerns included a daughter who briefly resided in Shanghai while working for a U.S. bank, and two professional contacts in the People's Republic of China. Additionally, the applicant was alleged to have omitted and falsified material on Personnel Security Questionnaires (DD 398) and during interviews with investigators in 1987 and 1993, specifically regarding the deliberate omission or falsification of facts and providing false or misleading information.

However, the applicant provided credible testimony and evidence that mitigated these concerns. Testimony regarding missing confidential documents was supported by a supervisor's explanation of office practices. The applicant's foreign contacts were deemed casual and infrequent, and omissions in security questionnaires were interpreted as reasonable, not indicative of dishonesty. Consequently, the security clearance was granted.

Why the Applicant Prevailed

Applicant provided credible testimony regarding the missing documents, supported by his supervisor's explanation of office practices.
The applicant's contacts with foreign nationals were deemed casual and infrequent, mitigating foreign influence concerns.
The applicant's omissions in security questionnaires were interpreted as reasonable and not indicative of dishonesty.

Conditions Referenced

Disqualifying

DC 2raisedSecurity Violations
DC 1raisedForeign Influence
DC 2raisedPersonal Conduct

Mitigating

MC 1appliedSecurity ViolationsThe violation was inadvertent and infrequent.
MC 1appliedForeign InfluenceImmediate family members do not constitute an unacceptable security risk.
MC 1appliedPersonal ConductThe applicant provided correct information voluntarily after initial omissions.

Key Rule Quoted

“"Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security."”
— Directive, ¶ E2.2.2.

Procedural Posture

SOR issuedAug 9, 2002
Answer filedSep 4, 2002Applicant requested a hearing.
Hearing heldJul 22, 2003Hearing was held over two days.
Decision dateSep 16, 2003

Cite For

Mitigation of Security Violations Due to Inadvertence
Casual Foreign Contacts Under Guideline B
Interpretation of Personal Conduct Requirements in Security Applications

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's foreign influence concerns were mitigated by the fact that his daughter is no longer a resident of Shanghai and that his contacts with two Chinese scientists were casual and infrequent. The applicant provided credible testimony regarding the allegations, leading to a decision to grant the security clearance.

U.S. ties the decision noted: U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	Applicant has a daughter who lived in Shanghai briefly while working for a U.S. bank.	For Applicant	Parent in Foreign Country Immediate Family	China	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
2.b	Applicant has two Chinese (PRC) professional contacts.	For Applicant	Friend in Foreign Country Friend	China	Admitted	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (c) contact so casual and infrequent there is little likelihood of risk	Claimed Other
2.c	Applicant omitted and falsified material on Personnel Security Questionnaires (DD 398) and in interviews with investigators in 1987 and 1993.	For Applicant	Unspecified Foreign Relationship Other	—	Admitted	(c) failure to report or disclose association with a foreign person/group/government	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found all allegations under Guideline E to be for the applicant, indicating that the applicant's omissions and falsifications were successfully mitigated. The applicant provided credible testimony and reasonable interpretations of the requirements, leading to a conclusion of trustworthiness and reliability.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;	For Applicant	Omission or Failure to Disclose	—	Denied	—	—	—
3.b	Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other official representative in connection with a personnel security or trustworthiness determination;	For Applicant	Lack of Candor in Interview	—	Denied	—	—	—
3.c–3.e	3 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant		—		—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline K (Handling Protected Information) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's handling of classified information raised concerns under Guideline K, specifically regarding the inability to account for six confidential documents. However, the judge ruled in favor of the applicant, determining that the violation was inadvertent and infrequent, and that the applicant had provided credible testimony to mitigate the concerns.

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
1.a	specific text not stated in this decision	For Applicant	Unspecified Information Handling	Unknown	(b) collecting or storing protected information in any unauthorized location	(a) so much time has elapsed, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt… (b) responded favorably to counseling or remedial security training and now demonstrates a positive attitude toward the discharge of security responsibili…	—

Descriptive standardized rendering of a decided public case (Guideline K). 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

SYNOPSIS

KEYWORD: Security Violations; Foreign Influence; Personal Conduct

DIGEST: Applicant, a scientist with a major shipbuilder of Chinese ancestry from Taiwan, had six missing confidential documents in 1998 while a U.S. Navy employee. He also had two Chinese (PRC) professional contacts and a daughter who lived in Shanghai briefly while working for a U.S. bank. He allegedly omitted and falsified material on Personnel Security Questionnaires (DD 398) and in interviews with investigators in 1987 and 1993. He has held his security clearance since leaving government service in 1998. Applicant provided credible testimony as to all allegations. Clearance is granted.

CASE NO: 01-23458.h1

DATE: 09/16/2003

DATE: September 16, 2003

In Re:

-------------------

SSN: -----------

Applicant for Security Clearance

)

) ISCR Case No. 01-24358

DECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

APPEARANCES

SYNOPSIS

Applicant, a scientist with a major shipbuilder of Chinese ancestry from Taiwan, had six missing confidential documents in 1998 while a U.S. Navy employee. He also had two Chinese (PRC) professional contacts and a daughter who lived in Shanghai briefly while working for a U.S. bank. He allegedly omitted and falsified material on Personnel Security Questionnaires (DD 398) and in interviews with investigators in 1987 and 1993. He has held his security clearance since leaving government service in 1998. Applicant provided credible testimony as to all allegations. Clearance is granted.

STATEMENT OF CASE

On August 9, 2002, the Defense Office of Hearings and Appeals (DOHA) pursuant to Executive Order 10865, Safeguarding Information Within Industry, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant. The SOR detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

On September 4, 2002, Applicant, in a sworn written statement, responded to the allegations set forth in the SOR, and requested a hearing. The case was assigned to another administrative judge who could not hold the hearing. The first notice of hearing was issued on May 15, 2003. An amended notice of hearing was issued on May 23, 2003, setting the hearing for July 22, 2003. The matter was reassigned to me on July 21, 2003, and the hearing was held on July 22 and 28, 2003. The government introduced eleven exhibits and the Applicant introduced five. One exhibit offered by the government was not admitted. All others were admitted into evidence except for one paragraph in Exhibit 11. The transcripts were received on July 30 (Vol.1) and August 7, 2003 (Vol. 2).

FINDINGS OF FACT

Applicant admitted all of the specific allegations under Guidelines K, B, and E except for paragraph 3cunder E but disagreed with the adverse interpretation placed on all allegations. After a complete review of the evidence in the record and upon due consideration of the record, the following additional findings of fact are made.

Applicant is a native of Taiwan who has a college degree from a university in Taiwan and graduate degrees from two U.S. universities. He has written or collaborated on a large number of technical articles and papers published in professional journals or by the U.S. government.

Applicant is a scientist on naval architecture with a major U.S. shipbuilding corporation contracting with the U.S. Navy. He retired from the Navy in 1998 where he had done the same type of work since 1968. He has continued to hold a security clearance since his retirement. In 1998 Applicant could not account for six confidential documents from the classified library in his agency. When a security officer questioned him at a random security check he could not locate or account for them. He retired two months later and never heard further about the issue until two interviews were taken in 1999 (Exh 3 and 4). His supervisor wrote an explanatory memo about the matter in May of 1998. (Exh. 8) His exit checkout was approved when he left the agency. (Exh. E)

Documents such as those at issue in this matter were often put in the burn bag when no longer needed and not returned to the library. (TR Vol. 1, 63)

Applicant attended numerous international conferences where persons engaged in his field met to exchange information. One of those was a scientist from the PRC with whom Applicant is alleged to have a relationship who had similar responsibilities in the PRC as Applicant had for the U.S. Navy. All meetings were approved by his supervisors and reports were filed with his supervisor after each meeting. In several interviews with investigators and on applications for security clearances these specific contacts were not reported although the international organization sponsoring the meetings was reported.

Applicant's supervisor also had professional and personal contact with the same PRC scientist as the Applicant is alleged to have. (TR Vol 1., 88) Applicant and his supervisor had occasional social contacts with both father and son when they were in the U.S.

Applicant served a mandatory period of military service in Taiwan and described it in a security interview as related to sports. This was partially inaccurate in that he was assigned to an ordnance factory but was running a sports program for them since the senior officers did not want a short term draftee doing ordnance work that was being done to supply U.S. troops during the Viet Nam conflict (TR Vol 2, 101 and 102).

Applicant's daughter lived in Shanghai for a period of time ending in 2000 working part time at the U.S. consulate and learning the Chinese language. She lived in the same apartment house as the son of the scientist from the PRC with whom Applicant is alleged to have a relationship. They did not live in the building at the same time. Applicant's daughter now lives in the U.S. and works for a major U.S. corporation.

The son of the scientist came to the U.S. and studied at a U.S. university where Applicant has taught since 1988. The son obtained a doctoral degree and Applicant was one of three readers for his doctoral dissertation. Applicant also served as a reader for many other doctoral candidates and a mentor for other students at several universities. After graduation the son was hired by the Applicant's agency but left in 1998 after a possible security breach and investigation. Applicant's supervisor was aware of the facts of the investigation but could not divulge the information except to say the Applicant was not involved. (TR Vol 1, 86)

POLICIES

[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position that will give that person access to such information." Id. at 527.

An evaluation of whether the applicant meets the security guidelines includes consideration of the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other 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. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Executive Order No. 10865 § 2. See Executive Order No. 12968 § 3.1(b)

Initially, the Government must establish, by something less than a preponderance of the evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The applicant then bears the burden of demonstrating that it is clearly consistent with the national interest to grant or continue the applicant's clearance. "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive, ¶ E2.2.2. "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531. See Executive Order No.12968 § 3.1(b)

Considering the record evidence as a whole, the following security guidelines apply:

Security Violations-Guideline K Noncompliance with security regulatios raises doubt about and individual's trustworthiness, willingness and ability to safeguard classified information.

Conditions that could raise a security concern and may be disqualifying include violations that are deliberate or multiple or due to negligence. (DC 2)

Conditions that could mitigate a security concern include (MC) actions that:

1. were inadvertent;

2. were isolated or infrequent.

Foreign Influence-Guideline B

A security risk may exist when an individual's immediate family, including co-habitants, and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

Conditions that could raise a security concern and may be disqualifying (D C) include:

1. An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country

Conditions that could mitigate security concerns (MC) include: 1. a determination that the immediate family members in question would not constitute an unacceptable security risk

3. contacts with foreign citizens are casual and infrequent

4. the individual has promptly reported to proper authorities all contacts from a foreign country

Personal Conduct-Guideline E:

Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

Conditions that could raise a security concern (DC) and may be disqualifying include:

2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

3. Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other official representative in connection with a personnel security or trust-worthiness determination;

Conditions that could mitigate security concerns include;

1. the falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions above, I conclude the following with respect to all allegations set forth in the SOR.

While Applicant could not account for the six missing documents, the head of his office rebutted the allegation and pointed out the actual practices of the office in a credible manner that successfully mitigated the allegation. The Disqualifying Condition (DC) under Guideline K was established by the security officials that there had been noncompliance. However, the Mitigating Conditions (MC 1and 2) were established by the Applicant and his supervisor that the violation was inadvertent and infrequent since there was no indication or proof of prior security breaches. The report by the supervisor in response to the security officials apparently was accepted as Applicant was permitted to retire and did not suffer any consequences or lose his clearance for the past six years.

The issue of Foreign Influence issue under Guideline B (DC) regarding Applicant's daughter and his professional and personal relations with two Chinese (PRC) scientists was mitigated (MC 1) by the fact that the daughter is no longer a resident of Shanghai and his contacts with the two foreign citizens was casual and infrequent (MC 2) and that his contacts with them were reported (MC 3). Mitigating Conditions (MC) 1 applies in that immediate family members are not agents of a foreign power or in a position to be exploited by a foreign power and thus do not constitute an unacceptable security risk.

The issue of Personal Conduct under Guideline E regarding Applicant's omission or falsification of relevant and material facts in his application for clearance and interviews with security investigators (DC 2) and providing false and misleading information to investigators and officials. (DC 3) was successfully mitigated by providing correct information to the officials and by Applicant's reasonable interpretation of the requirements. Applicant's reports of his trips to international conferences including his contacts at the conferences show that these contacts were well known in his agency and provide a reasonable basis for his determination that these government activities need not have been reported.

Applicant's description of his military service in a 1993 security interview that omitted the fact that was assigned to the logistics ordnance arm of the military was explained at the hearing that his actual work was in sports management for the facility and that was the reason for the description.

After considering all the evidence in its totality and as an integrated whole to focus on the whole person of Applicant, I conclude that he is trustworthy, reliable, and eligible for access to classified information.

FORMAL FINDINGS

Formal findings as required by the Directive (Par. E3.1.25) are as follows:

Paragraph 1. Guideline K FOR APPLICANT

Subparagraph 1.a.: For Applicant

Paragraph 2. Guideline B FOR APPLICANT

Subparagraph 2.a.: For Applicant

Subparagraph 2.b.: For Applicant

Subparagraph 2.c.: For Applicant

Paragraph 3Guideline E FOR APPLICANT

Subparagraph 3.a.: For Applicant

Subparagraph 3.b.: For Applicant

Subparagraph 3.c.: For Applicant

Subparagraph 3.d.: For Applicant

Subparagraph 3.e.: For Applicant

DECISION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or renew a security clearance for Applicant. Clearance is granted. Charles D. Ablard

Administrative Judge

Loading case…

Case Profile

Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

SYNOPSIS

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES