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ISCR Case 02-00606.h1 — CASE

ISCR Case 02-00606.h1granted

Case Headnote

ISCR Case No. 02-00606.h1

grantedJun 18, 2003· Hon. Richard A. Cefola· hearing

Summary

A 32-year-old defense contractor was granted a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons cited the Applicant's oldest sister, a dual U.S. and Japanese citizen residing in Japan with her Japanese husband and their three dual-national children, aged one to four. The sister and children visit the U.S. approximately three times annually, staying with the Applicant's American parents. Additionally, the Applicant's best friend, a U.S. citizen, lives in Japan, where he works as an administrator for a private university and is married to a Japanese national.

The judge considered these facts but found no evidence that the Applicant's family members or friend had any connections with a foreign government. Furthermore, there was no indication that these individuals could be exploited by a foreign power.

Ultimately, the Applicant successfully rebutted the Government's case regarding foreign influence, leading to the decision to grant the security clearance.

Why the Applicant Prevailed

The Applicant's family members and friend have no connections with any foreign government.
There is no evidence that the Applicant's family or friend could be exploited by a foreign power.
The Applicant successfully rebutted the Government's case regarding foreign influence.

Conditions Referenced

Disqualifying

AG ¶ 1raisedForeign Influence

Mitigating

AG ¶ 1appliedForeign InfluenceThe immediate family members are not agents of a foreign power or in a position to be exploited.

Key Rule Quoted

“An individual who is subject to a foreign influence, may be prone to provide information or make decisions that are harmful to the interests of the United States.”

Procedural Posture

SOR issuedFeb 27, 2003
Answer filedMar 24, 2003
Hearing heldMay 16, 2003
Decision dateJun 18, 2003

Cite For

Evaluation of Foreign Influence Under Guideline B
Mitigating Conditions Related to Family Members Residing Abroad
Rebuttal of Government Concerns Regarding Foreign Connections

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 lack of connections to foreign governments among his family and friends. The Applicant's sister and brother-in-law, both residing in Japan, do not have any ties to foreign government entities, and the Applicant's best friend, also a U.S. citizen living in Japan, is similarly free from foreign government connections. The judge ruled in favor of the Applicant on all allegations under Guideline B.

U.S. ties the decision noted: U.S. Spouse or Partner · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	The Applicant's oldest sister is a citizen of the United States and of Japan, but lives in Japan.	For Applicant	Sibling in Foreign Country Immediate Family	Japan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—
1.b	His brother-in-law is a citizen of Japan, and is a software engineer.	For Applicant	In Law in Foreign Country Immediate Family	Japan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—
1.c	They have three children, ranging in ages from one to four years of age. The children are also dual nationals.	For Applicant	Extended Family in Foreign Country Immediate Family	Japan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—
1.d	The Applicant's sister and her children visit the U.S. about three times a year, staying with the Applicant's American parents.	For Applicant	Unspecified Foreign Relationship Immediate Family	Japan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—
1.e	The Applicant's best friend is a U.S. citizen who lives in Japan.	For Applicant	Friend in Foreign Country Friend	Japan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—
1.f	He is an administrator for a private university in Japan. He is married to a Japanese national.	For Applicant	Friend in Foreign Country Friend	Japan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	—

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

DATE: June 18, 2003 In Re: --------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-00606 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

SYNOPSIS The Applicant's oldest sister is a citizen of the United States and of Japan, but lives in Japan. She is a professor at a private university. His brother-in-law is a citizen of Japan, and is a software engineer. His sister and brother-in-law have three children, ranging in ages from one to four years of age. The children are also dual nationals. The Applicant's best friend is a U.S. citizen, but resides in Japan. He works at a private university as an administrator. There is no evidence that any member of the Applicant's family or his friend have any connection with a foreign government or is in a position to be exploited by any government. Clearance is granted.

STATEMENT OF CASE

On February 27, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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 the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked. Applicant filed an Answer to the SOR on March 24, 2003. The case was received by the undersigned on April 21, 2003. A notice of hearing was issued on April 26, 2003, and the case was heard on May 16, 2003. The Government submitted documentary evidence. Testimony was taken from the Applicant. The transcript was received on May 29, 2003. The issues raised here are whether the Applicant's perceived foreign influence militates against the granting of a security clearance. [The Applicant admits the underlying factual basis of all of the allegations.]

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the documents and the live testimony. The Applicant is 32 years of age, has a Bachelor of Science Degree, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact. Guideline B - Foreign Influence The Applicant was born and raised in the United States, where he currently resides (Transcript (TR) at page 13 lines 13–17, and Government Exhibit (GX) 1 at page 1). 1.a.~1.e. The Applicant's oldest sister resides in Japan as a dual national, American and Japanese (TR at page 13 line 18 to page 16 line 7, at page 18 lines 4–18, and GX 1 at page 3). She is a professor at a private university, and is married to a Japanese national who is a software engineer (id). They have three children, ranging in ages from one to four years of age, and the children are dual nationals (ibid). The Applicant's sister and her children visit the U.S. about three times a year, staying with the Applicant's American parents (TR at page 16 lines 8–17, and GX 1 at pages 1–2). 1.f. The Applicant's best friend is a U.S. citizen who lives in Japan (TR at page 18 line 19 to page 20 line 8). He is an administrator for a private university in Japan (id). He is married to a Japanese national (ibid). Mitigation The Applicant is a valued asset to his employer (Applicant's Exhibit (AppX) A).

POLICIES

Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are: Foreign Influence Condition that could raise a security concern: 1. An immediate family member . . . is a citizen of . . . a foreign country; Condition that could mitigate security concerns: 1. A determination that the immediate family member(s), . . . are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States; As set forth in the Directive, each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature, extent, and seriousness of the conduct, and surrounding circumstances. b. Frequency and recency of the conduct. c. Age and maturity of the applicant. d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved. e. Absence or presence of rehabilitation. f. Probability that circumstances or conduct will continue or recur in the future. The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. The Government must make out a case under Guideline B (foreign influence), which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required. Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance. An individual who is subject to a foreign influence, may be prone to provide information or make decisions that are harmful to the interests of the United States. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

CONCLUSION

The Applicant's oldest sister resides in Japan. She is a dual national, married to a Japanese national. Both work in the private sector, his sister as a university professor and his brother-in-law as a software engineer. They have three minor children. Neither his sister nor his in-law have any connection with any government, and there is no evidence that their presence in Japan can be exploited by any government. As to his best friend, who is an American residing in Japan, he is a university administrator. He also has no connection with any government, nor is there any evidence that his presence in Japan can be exploited by any government. In addition, I conclude that it would be unlikely that the Applicant would even countenance any such attempt at exploitation of any of his Japanese relatives or of his American friend. Guideline B is thus found in the Applicant's favor. Considering all the evidence, the Applicant has rebutted the Government's case regarding his alleged foreign influence. The Applicant has thus met the mitigating conditions of Guideline B, and of Section E.2.2. of the Directive. Accordingly, he has met his ultimate burden of persuasion under Guideline B.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: FOR THE APPLICANT a. For the Applicant. b. For the Applicant. c. For the Applicant. d. For the Applicant. e. For the Applicant. f. For the Applicant. Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of the circumstances presented by the record in this case, it is clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

02-00606.h1 FOR GOVERNMENT Jennifer I. Campbell, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-00606.h1.html[6/24/2021 10:45:41 AM] 02-00606.h1