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ISCR Case 03-03102.h1 — CASE

ISCR Case 03-03102.h1granted

Case Headnote

ISCR Case No. 03-03102.h1

grantedNov 17, 2004· Hon. James A. Young· hearing

Summary

This case involved a 53-year-old naturalized U.S. citizen engineer whose security clearance was initially questioned under Guideline B (Foreign Influence) due to his connections to Israel. Specific concerns included his brother and sister residing in Israel, his receipt of monthly compensation for 1974 injuries sustained while serving in the Israeli Army, ownership of real estate in Israel valued at approximately $40,000, and annual visits to Israel to see family between 1997 and 2001.

To address these disqualifying conditions, the applicant took several mitigating actions. He significantly limited contact with his siblings after his parents' deaths, renounced his Israeli citizenship, and closed his Israeli bank account. Furthermore, he terminated his Israeli disability benefits and initiated the transfer of his Israeli property to his sister.

The security clearance was ultimately GRANTED. The decision highlighted the applicant's substantial ties to the U.S. and the minimal financial interests he retained in Israel, demonstrating that the mitigating steps successfully resolved the foreign influence concerns.

Why the Applicant Prevailed

The applicant limited contact with his siblings in Israel after the death of his parents.
He renounced his Israeli citizenship and closed his Israeli bank account.
The applicant terminated his Israeli disability benefits and is transferring his property to his sister.

Conditions Referenced

Disqualifying

E2.A2.1.2.1raisedForeign Influence Due to Family Ties
E2.A2.1.2.6raisedVulnerability Due to Foreign Government Benefits
E2.A2.1.5.8raisedFinancial Interests in a Foreign Country

Mitigating

E2.A2.1.3.1appliedAssociates Not Agents of a Foreign Power
E2.A2.1.3.5appliedMinimal Financial Interests in Foreign Country

Key Rule Quoted

“The mere possession of family ties with persons in a foreign country is not, as a matter of law, automatically disqualifying.”
— ISCR Case No. 99-0424, 2001 DOHA LEXIS 59 at **33-34 (App. Bd. Feb. 8, 2001)

Procedural Posture

SOR issuedApr 27, 2004
Answer filedMay 24, 2004
Hearing heldSep 28, 2004
Decision dateNov 17, 2004

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Impact of Renouncing Foreign Citizenship on Security Clearance
Rebuttal of Financial Vulnerability Due to Foreign Government Benefits

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 his siblings being citizen residents of Israel. The applicant's limited contact with his siblings, termination of Israeli disability benefits, and the transfer of his property in Israel contributed to the decision to grant security clearance.

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

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant has a brother and sister who are citizen residents of Israel	For Applicant	Sibling in Foreign Country Immediate Family	Israel	Unknown	—	—	—
1.b	Receives monthly compensation for injuries he sustained in 1974 while serving in the Israeli Army	For Applicant	Foreign Employment or Pension Other GOVT-AFFILIATED	Israel	Unknown	—	(e) promptly complied with reporting requirements	Documented Foreign Assets Divested
1.c	Owns real estate in Israel worth approximately $40,000	For Applicant	Foreign Real Estate Financial or Property Interest	Israel	Unknown	—	(e) promptly complied with reporting requirements	Documented Foreign Assets Divested
1.d	Traveled to Israel to visit family members each year from 1997-2001	For Applicant	Friend in Foreign Country Friend	Israel	Unknown	—	—	—

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: November 17, 2004

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-03102

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

SYNOPSIS

Applicant mitigated foreign influence security concerns raised by his sister and brother being citizen residents of Israel. Since the death of his parents, his contact with his sibling has been limited. He no longer receives Israeli disability compensation and is transferring the small parcel of land he owns in Israel to his sister. Clearance is granted.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 27 April 2004, DOHA issued a Statement of Reasons (1) (SOR) detailing the basis for its decision-security concerns raised under Guideline B (Foreign Influence) of the Directive. Applicant answered the SOR in writing on 24 May 2004 and elected to have a hearing before an administrative judge. The case was assigned to me on 29 July 2004. On 28 Septemmber 2004, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the hearing transcript (Tr.) on 6 October 2004.

FINDINGS OF FACT

Applicant is a 53-year-old engineer for a defense contractor. He is well respected by his peers and superiors for his hard work and his contributions to the organization's mission.

Applicant was born and raised in Israel. Both of his parents are deceased. He has an older brother and sister who are citizen residents of Israel. His sister is a 65-year-old retired graphic artist. She served two years in the Israeli army. Applicant's brother is in his early 60sand married to a lawyer. Applicant is close to his sister. They speak via telephone one to three times a month. Applicant is not as close to his brother. They speak via telephone once every three months.

Applicant served as a tank commander on active duty in the Israeli Army from 1969-1973 and in the reserves thereafter. During his first reserve duty, Israel was attacked in the Yom Kippur War. Applicant was wounded when an Egyptian anti-tank missile penetrated his tank. He spent a year in hospital recovering from his injuries. The Israeli government gave him a 1/3 disability rating that entitled him to payment of between $100 and $200 a month. The disability payments were deposited in an Israeli bank account to which his sister had access. On 15 September 2004, Applicant sent a letter to the Israeli government requesting his disability benefits be terminated. He closed the Israeli bank account and had the money moved to a U.S. bank.

In 1977, Applicant married a U.S. citizen by birth who was living in Israel. They lived in Israel for two years. Applicant completed his undergraduate degree in 1979, and he and his wife moved to the U.S. to live. Applicant became a naturalized U.S. citizen in 1982. He and his wife have two adult daughters, both born in the U.S. Applicant's wife and his two daughters are dual U.S. Israeli citizens.

During the period 1997-2001, Applicant traveled to Israel every year to visit his family. Usually, he made these trips alone, without other members of his family. His wife accompanied him on his 2001 trip. His children have not been to Israel for over 15 years. Applicant has not returned to Israel since 2001.

Applicant acquired a U.S. passport, but maintained an Israeli passport for travel to Israel. Before DOHA issued the SOR, Applicant renounced his Israeli citizenship and returned his Israeli passport.

Applicant still owns a small parcel of land that was part of the property left to him by his parents. He is in the process of transferring the property to his sister. Because of restrictions on building on the 1/8 acre plot, it does not have significant value.

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. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

CONCLUSION

In the SOR, DOHA alleged Applicant has a brother and sister who are citizen residents of Israel (¶ 1.a), receives monthly compensation for injuries he sustained in 1974 while serving in the Israeli Army (¶ 1.b), owns real estate in Israel worth approximately $40,000 (¶ 1.c), and traveled to Israel to visit family members each year from 1997-2001 (¶ 1.d). A security risk may exist when an applicant's immediate family, or other persons to whom he may be bound by affection, influence, or obligation, are not citizens of the U.S. or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Directive ¶ E2.A2.1.1.

The Government established by substantial evidence and Applicant's admissions that members of his immediate family- -his brother and sister--are citizen residents of a foreign power--Israel. DC E2.A2.1.2.1. While the mere possession of family ties with persons in a foreign country is not, as a matter of law, automatically disqualifying . . . [it] does raise a prima facie security concern sufficient to require an applicant to present evidence of rebuttal, extenuation or mitigation sufficient to meet the applicant's burden of persuasion that it is clearly consistent with the national interest to grant or continue a security clearance for the applicant.

ISCR Case No. 99-0424, 2001 DOHA LEXIS 59 at **33-34 (App. Bd. Feb. 8, 2001).

Security concerns raised by Applicant's foreign associates may be mitigated when it is determined the associates are not agents of a foreign power and are not 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 involved and loyalty to the U.S. C E2.A2.1.3.1. Applicant's foreign associates are not "agents of a foreign power." See 50 U.S.C. § 1801(b).

In assessing the vulnerability to exploitation of Applicant's associates, it is helpful to consider several factors, including the character of the government and the status of the country involved. Israel is a parliamentary democracy. Residents of Israel are subject to terrorism by Arab states and organizations. Israel collects military and economic intelligence from the U.S. Nevertheless, there is no evidence Israel coerces or pressures its citizens to seek intelligence from relatives living abroad. I am convinced the siblings are not in a position to be exploited by a foreign power such that Applicant would have to choose between loyalty to the U.S. and loyalty to his siblings. Since the death of his parents, to whom he was very close, Applicant's association with Israel has decreased significantly.

Accepting disability compensation from a foreign government could potentially make an applicant vulnerable to exploitation or pressure from that foreign government. DC E2.A2.1.2.6. Having a substantial financial interest in a foreign country could make an applicant vulnerable to coercion or pressure from the foreign government. DC E2.A2.1.5.8. The evidence demonstrates Applicant has renounced his disability compensation benefit, has closed his Israeli bank account, and is in the process of transferring his small piece of real estate to his sister. Applicant's current financial interests in Israel--the 1/8 acre plot of land--is minimal. With the completion of the transfer of the real estate to his sister, Applicant will have no financial interests in Israel. See MC E2.A2.1.3.5.

After carefully considering all of the evidence, including the much more substantial ties Applicant has to the U.S. than to Israel, I conclude Applicant has mitigated the foreign influence security concerns.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline B: FOR APPLICANT

Subparagraph 1.a: For Applicant

Subparagraph 1.b: For Applicant

Subparagraph 1.c: For Applicant

Subparagraph 1.d: For Applicant

DECISION

In light of all of the circumstances in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted.

James A. Young

Administrative Judge

1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (Directive).

FOOTNOTES

APPEARANCES

FOR GOVERNMENT Francisco J. Mendez Jr., Esq., Department Counsel FOR APPLICANT Thomas M. Abbott, Esq. file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-03102.h1.html[6/24/2021 3:10:33 PM] 03-03102.h1