ISCR Case No. 04-05635.h1

KEYWORD: Foreign Influence DIGEST: Forty-seven year old Applicant who immigrated to the U.S. in 1975--a naturalized U.S. citizen--resides in the U.S. with his naturalized U.S. citizen wife. All his immediate family members are naturalized U.S. citizens. His extended family members are citizens and residents of the Republic of Korea (ROK). Except for his late father and his father-in-law, both of whom served compulsory military service during the Korean War in the 1950s, no member of his extended family has any connection or association with the ROK government, or its military, political, or intelligence entities, nor are they agents of a foreign government or in positions to be exploited by a foreign government. They do not constitute an unacceptable security risk. Under the facts herein, the government's security concerns are mitigated. Clearance is granted. CASENO: 04-05635.h1 DATE: 05/10/2006 DATE: May 10, 2006

In re:

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

Applicant for Security Clearance

ISCR Case No. 04-05635

DECISION OF CHIEF ADMINISTRATIVE JUDGE ROBERT ROBINSON GALES

FOR GOVERNMENT James B. Norman, Esquire, Deputy Chief Department Counsel

FOR APPLICANT Kevin R. Powers, Esquire

SYNOPSIS

Forty-seven year old Applicant who immigrated to the U.S. in 1975--a naturalized U.S. citizen--resides in the U.S. with his naturalized U.S. citizen wife. All his immediate family members are naturalized U.S. citizens. His extended family members are citizens and residents of the Republic of Korea (ROK). Except for his late father and his father-in-law, both of whom served compulsory military service during the Korean War in the 1950s, no member of his extended family has any connection or association with the ROK government, or its military, political, or intelligence entities, nor are they agents of a foreign government or in positions to be exploited by a foreign government. They do not constitute an unacceptable security risk. Under the facts herein, the government's security concerns are mitigated. Clearance is granted.

On January 23, 2003, Applicant applied for a security clearance and submitted a Security Clearance Application (SF 86). (1) On April 27, 2005, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, 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. The SOR detailed reasons under Guideline B (foreign influence) 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, and recommended referral to an Administrative Judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn, written statement, dated May 18, 2005, Applicant responded to the SOR allegations and requested a hearing. Department Counsel indicated the government was ready to proceed and the case was assigned to me on October 28, 2005. A notice of hearing was issued that same date, scheduling the hearing for November 16, 2005. However, on November 2, 2005, upon retaining an attorney, Applicant's attorney moved for a continuance. Upon consideration of Applicant's motion, and in the absence of any objection by Department Counsel, the motion was granted. Subsequently, with the concurrence of both parties, on February 1, 2006, another notice of hearing was issued scheduling the hearing for February 24, 2006. The hearing was held as scheduled. During the hearing, 2 Government exhibits, 13 Applicant exhibits, and the testimony of 2 Applicant witnesses (including Applicant) were received. The transcript (Tr.) was received on March 7, 2006.

RULINGS ON PROCEDURE

Department Counsel requested Official Notice be taken of the contents of the following documents: The Library of Congress, Congressional Research Service, CRS Report for Congress, South Korea-U.S. Economic Relations: Cooperation, Friction, and Future Prospects, dated July 1, 2004; The Library of Congress, Congressional Research Service, CRS Report for Congress, Korea: U.S.-Korean Relations-Issues for Congress, dated February 22, 2005; U.S. Department of State, Bureau of East Asian and Pacific Affairs, Background Note: South Korea, dated August 2005; U. S. Department of State, Bureau of Consular Affairs, Consular Information Sheet: Republic of Korea, dated August 9, 2005; U. S. Department of State, Country Reports on Human Rights: Republic of Korea - 2004, dated February 28, 2005; and U.S. National Counterintelligence Center, Annual Report to Congress on Foreign Economic Collection and Industrial Espionage, undated. (2) Pursuant to Rule 201, Federal Rules of Evidence (F.R.E.), I took Official Notice as requested, without any objection by Applicant. (3)

The government moved to amend the SOR to conform to the evidence presented. More specifically, it sought the following change to subparagraph 1.b. of the SOR: add the words ", two brothers-in-law and their spouses, and a sister- in-law" before the words "are citizens and residents." There being no objection to the motion by Applicant, the motion was granted and the SOR amended as stated. (4)

Applicant admitted the factual allegations pertaining to foreign influence under Guideline B (subparagraphs 1.a. through 1.e.). Those admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact: Applicant is a 47-year-old employee of a defense contractor. He is seeking to obtain a security clearance, the level of which has not been identified. He was previously granted an interim security clearance in 2003, but that clearance was revoked in April 2005. (5) He has been employed by the same government contractor since January 2003, and currently serves as an engineering specialist (6) with a title of principal systems engineer. (7) His immediate supervisor supports his application and characterizes Applicant's work performance as "consistently above average." (8) He is considered trustworthy. (9)

Applicant was born in 1959 in the Republic of Korea, commonly known as South Korea (ROK). He and his immediate family, consisting of both parents and two siblings, all of whom were born in ROK immigrated to the U.S. in 1975. (10) Applicant became a naturalized U.S. citizen in September 1983. (11) He graduated from a U.S. high school in 1978, and received a B.S. degree in applied physics from a prestigious U.S. university in May 1983, and both an M.S. degree in applied mathematics and a Ph.D. in applied mathematics in May 1990, from another prestigious U.S. university. (12)

Upon receiving his degrees in 1990, Applicant sought permanent employment opportunities while performing post- doctorate research with two universities. (13) He sent out over 100 resumes and received two responses, and only one offer. (14) After having been unemployed for about 16 months, (15) in February 1994, he accepted a research engineering position with a foreign consumer electronics manufacturing company headquartered in ROK. (16) He resided in a rented apartment in ROK until 1998, when he returned to the U.S. to manage a joint research project for his employer until August 2000. (17) The following month, he accepted a position as a principal systems engineer with a government contractor in the U.S. (18)

His father, born in 1930, (19) served his compulsory military service with the ROK military in the 1950s as a civil engineering officer. (20) Upon his arrival in the U.S., he worked as a general contractor. (21) He became a naturalized U.S. citizen in April 1989, (22) and passed away about two years ago. (23) Other than his brief military service, Applicant's father had no connection or association with the ROK government, or its military, political, or intelligence entities. (24) His mother, born in 1935, (25) was a homemaker when she resided in ROK. (26) She subsequently was employed as a teller with a large national bank in the U.S., but is now retired, and still resides in the U.S. (27) She became a naturalized U.S. citizen in September 1983. (28) Applicant's mother has never had any connection or association with the ROK government, or its military, political, or intelligence entities. (29)

Applicant's brother, born in 1961, became a naturalized U.S. citizen in October 1983. (30) He is single, (31) and currently employed as an inspector with the U.S. Department of Homeland Security, Bureau of Customs and Border Protection, formerly known as the Immigration and Naturalization Service of the U.S. Department of Justice. (32) He has no connection or association with the ROK government, or its military, political, or intelligence entities. (33) Applicant's sister, born in 1964, became a naturalized U.S. citizen in March 1986. (34) She is married with two children, (35) and is employed as a clerk with a large city agency in the U.S. (36) She has no connection or association with the ROK government, or its military, political, or intelligence entities. (37) Applicant has four aunts--two are his father's sisters and two are his mother's sisters--all of whom are citizens and residents of ROK. (38) They are homemakers. (39) They have no connection or association with the ROK government, or its military, political, or intelligence entities. (40) Applicant hadn't seen his aunts from his departure from ROK in 1975 until 1991, and hasn't seen them or had any contacts with them since 1998. (41)

In October 1992, in the U.S., Applicant married a woman born in ROK in 1966. (42) At the time of their marriage in the U.S., she was a ROK citizen residing in ROK. (43) She obtained her "green card" in 1993, (44) and became a naturalized U.S. citizen in February 2006. (45) That same month, she formally renounced her ROK citizenship in compliance with Article 20, Korean Nationality Act. (46) They have no children. (47) She has been a homemaker since their marriage. (48)

Applicant's in-laws are all citizens and residents of ROK. His wife's father, born in1934, (49) served his compulsory military service with the ROK military in the 1950s as an infantryman. (50) He became a dentist in 1958 and is currently in private practice. (51) Other than his brief military service, Applicant's father-in-law has had no connection or association with the ROK government, or its military, political, or intelligence entities. His wife's mother, born in 1937, (52) is a homemaker. (53) She has had no connection or association with the ROK government, or its military, political, or intelligence entities. Applicant and his wife generally communicate with her parents by telephone about three or four times per year during special occasions and holidays. (54) She has more frequent communications with her mother. (55)

His wife also has several siblings in ROK. Her older brother, born in 1963, is married to a dentist, (56) with one child, and is an associate professor in the Department of Architecture of a private university in ROK. (57) Her sister, born in 1968, is single, resides with her parents, and is a concurrent professor of fashion design at a private college in ROK. (58) Her younger brother, born in 1970, is married to registered nurse, with two children, and is a manager in the information systems department of an insurance company in ROK. (59) Applicant's wife's siblings, and their respective spouses, have had no connection or association with the ROK government, or its military, political, or intelligence entities. (60) Applicant rarely communicates with his wife's siblings or their respective spouses.

Applicant has traveled to a number of different countries, including ROK, on several occasions since he became a naturalized U.S. citizen. Some of his trips were for business and others were for pleasure. In March and October 1999, he took two business trips, and in April 1999, he attended his brother-in-law's wedding. (61) In 2001 and 2002, he went to ROK for pleasure. (62)

Applicant's only assets (a home and some bonds) are located in the U.S. (63) He owns no assets in ROK. (64) ROK is a "highly developed, stable, democratic republic with powers shared between the president and the legislature. It has a modern economy, and tourist facilities are widely available." (65)

The government generally respects the human rights of its citizens, and there have been no reports of arbitrary or unlawful deprivation of life committed by the government or politically motivated disappearances. (66) ROK troops have served alongside U.S. troops in areas as diverse as the Korean Peninsula (during and after the Korean War), Vietnam (during the Vietnam War), and Iraq (during the war on terrorism). The U.S. and ROK are signatories to the 1954 Mutual Defense Treaty established to defend ROK from external aggression. As of 2003, ROK with its robust and expanding economy, was the seventh-largest trading partner of the U.S., (67) and the U.S. was ROK's largest trading partner. (68)

Despite the mutual benefits of the long-standing political, military, and economic relationship between the two countries, according to a 2000 private industry survey "distillation of corporate responses" from nearly a dozen Fortune 500 companies solicited by unidentified government officials, ROK is reputed to be among the top seven active collectors of economic information collection and/or industrial espionage, commonly referred to as economic espionage, industrial espionage, or the acquisition of proprietary technology and economic information-trade secrets. (69)

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Conditions).

An administrative judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision set forth in Section E.2.2., Enclosure 2, of the Directive, are intended to assist the administrative judge in reaching fair and impartial common sense decisions.

Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. The Adjudicative Process factors which an administrative judge should consider are: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (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 pertinent 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.

Based upon a consideration of the evidence as a whole, I find the following adjudicative guideline most pertinent to an evaluation of the facts of this case:

[GUIDELINE B - FOREIGN INFLUENCE]: A security risk may exist when an individual's immediate family, including cohabitants, 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 security concern and may be disqualifying, as well as those which could mitigate security concerns, pertaining to the adjudicative guideline are set forth and discussed in the Conclusions section below.

Since the protection of the national security is the paramount consideration, the final decision in each case must be arrived at by applying the "clearly consistent with the interests of national security" standard (70) or "clearly consistent with the national interest" standard. For the purposes herein, despite the different language in each, I have concluded both standards are one and the same. In reaching this Decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences that are grounded on mere speculation or conjecture.

In the decision-making process, the burden of producing evidence initially falls on the government to establish a case which demonstrates, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. If the government meets its burden, the heavy burden of persuasion then falls upon the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the government's case, and to ultimately demonstrate it is clearly consistent with the national interest to grant or continue the applicant's clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship that the government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions under this Directive include, by necessity, consideration of the possible risk that an applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

One additional comment is worthy of note. Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides industrial security clearance decisions shall be "in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned." Security clearance decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism. Nothing in this Decision should be construed to suggest I have based this decision, in whole or in part, on any express or implied decision as to Applicant's allegiance, loyalty, or patriotism.

Upon consideration of all the facts in evidence, an assessment of credibility, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the following with respect to each allegation set forth in the SOR:

The government has established its case under Guideline B. Applicant has been portrayed as a person who is a potential security risk because members of his immediate family or persons to whom he is bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. This situation raises the potential for vulnerability to coercion, exploitation, or pressure, and the exercise of foreign influence that could result in the compromise of classified information.

In support of its contentions, the government has cited the facts that Applicant's wife, her parents and siblings (and their respective spouses), and his four aunts are citizens of ROK, and, with the exception of his wife, are residents of ROK. Those simple facts, standing alone, are sufficient to raise security concerns over the possibility of Applicant's vulnerability to coercion, exploitation, or pressure. However, the mere possession of family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B: (71)

The language of [Guideline] B (Foreign Influence) in the Adjudicative Guidelines makes clear that the possession of such family ties may pose a security risk. Whether an applicant's family ties in a foreign country pose a security risk depends on a common sense evaluation of the overall facts and circumstances of those family ties. See ISCR Case No. 98-0419 (April 30, 1999) at p. 5. None of Applicant's immediate or extended family members are associated with the ROK government or any intelligence services or organizations. His father was a naturalized U.S. citizen residing in the U.S. until his death two years ago. His mother and two siblings are naturalized U.S. citizens residing in the U.S. In fact, his brother is an inspector with the Department of Homeland Security, Bureau of Customs and Border Protection, a position that is sensitive in terms of national security. Moreover, Applicant's wife is now a naturalized U.S. citizen. Under these circumstances, the residence and citizenship of his four aunts and his wife's parents and siblings are the remaining security concern.

The residence and citizenship of Applicant's extended family members are of security concern under Foreign Influence Disqualifying Condition (FI DC) E2.A2.1.2.1. (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), but the significance of that ruling in this instance is mitigated by Foreign Influence Mitigating Condition (FI MC) E2.A2.1.3.1. (a determination that the immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question 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). Except for his late father and his father-in-law, both of whom served compulsory military service during the Korean War in the 1950s, no member of Applicant's extended family has any connection or association with the ROK government, or its military, political, or intelligence entities, nor are they agents of a foreign government or in positions to be exploited by a foreign government.

His four aunts are elderly homemakers whom he has not seen nor had any contacts with since 1998. His father-in-law and sister-in-law are dentists. His mother-in-law is a homemaker. One brother-in-law and one sister-in-law are university or college professors. One brother-in-law is an information systems manager for a private company. Moreover, Applicant's contact with his extended family varies. His contacts with his father-in-law and mother-in-law, and to a certain extent, one brother-in-law, are planned but infrequent, thus negating the applicability of FI MC E2.A2.1.3.3. (contact and correspondence with foreign citizens are casual and infrequent), but the same cannot be said for his relationship with his four aunts, and his wife's remaining siblings, all of whom would benefit from that provision.

Applicant's interests in the U.S. are substantial. He and his is wife are naturalized U.S. citizens, residing in the U.S. Applicant owns no property overseas but does own a home and some bonds in the U.S. These facts come within FI MC E2.A2.1.3.5. (foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities).

Regarding the government's contention that, in 2000, ROK was reputed to be among the top seven active collectors of economic espionage, industrial espionage, or the acquisition of proprietary technology and economic information-trade secrets, while the data offered may be interesting reading, the sample size of less than 12 unspecified Fortune 500 companies, their unknown agendas or prejudices, among other factors, renders the overall contention based on those responses, useless and not worthy of further consideration.

Based on the evidence, I conclude the security concerns manifested by the government, in this instance, are largely unfounded. Considering the nature of the government in ROK, I determine that Applicant's extended family, considering their citizenship and residency status, do not constitute an unacceptable security risk. Their continuing personal relationship is viewed in positive terms, having no security significance. Thus, in light of the evidence presented, I conclude Applicant has, through evidence of extenuation and explanation, successfully mitigated and overcome the government's case under Guideline B. Accordingly, allegations 1.a. through 1.e. of the SOR are concluded in favor of Applicant.

For the reasons stated, I conclude Applicant is suitable for access to classified information.

Formal Findings For or Against Applicant on the allegations set forth in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive, are:

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 Subparagraph 1.e.: For Applicant

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted. Robert Robinson Gales Chief Administrative Judge 1. Government Exhibit 1 (Security Clearance Application, dated January 23, 2003). 2. Although the document is undated, it is the report issued in 2000. 3. Tr. at 18. 4. Tr. at 98-99. 5. Tr. at 48-49. 6. Tr. at 47. 7. Applicant Exhibit E (Performance and Development Summary, dated March 23, 2005). 8. Tr. at 24. 9. Tr. at 24. 10. Tr. at 30. 11. Government Exhibit 1, supra note 1, at 1. 12. Applicant Exhibit C (Resume, undated) at 1. 13. Tr. at 39-40. 14. Tr. at 40. 15. Response to SOR, dated May 18, 2005) at 2. 16. Tr. at 41. 17. Response to SOR, supra note 15, at 3. 18. Government Exhibit 1, supra note 1, at 2. 19. Id. at 4. 20. Tr. at 55. 21. Tr. at 54. 22. Government Exhibit 1, supra note 1, at 5. 23. Tr. at 54. 24. Tr. at 54-55. 25. Government Exhibit 1, supra note 1, at 4. 26. Tr. at 56-57. 27. Tr. at 56. 28. Government Exhibit 1, supra note 1, at 5. 29. Tr. at 57. 30. Government Exhibit 1, supra note 1, at 5. 31. Tr. at 57. 32. Tr. at 58; Applicant Exhibit F (Photocopy of Identification Card and Badge). 33. Tr. at 60-61. 34. Government Exhibit 1, supra note 1, at 5. 35. Tr. at 61. 36. Tr. at 61. 37. Tr. at 62. 38. Tr. at 62, 64. 39. Tr. at 63-64. 40. Tr. at 63-65. 41. Tr. at 62-64. 42. Government Exhibit 1, supra note 1, at 3. 43. Tr. at 95. 44. Response to SOR, supra note 15, at 1. 45. Applicant Exhibit A (U.S. Department of Homeland Security, Certificate of Naturalization, dated February 9, 2006). 46. Applicant Exhibit B (Citizenship Renouncement Form, dated February 21, 2006). 47. Tr. at 36. 48. Response to SOR, supra note 15, at 1. 49. Government Exhibit 1, supra note 1, at 4. 50. Tr. at 69. 51. Tr. at 69. 52. Government Exhibit 1, supra note 1, at 4. 53. Tr. at 72. 54. Tr. at 70-72. 55. Response to SOR, supra note 15, at 1. 56. Tr. at 76. 57. Tr. at 73, 75. 58. Tr. at 79-80. 59. Tr. at 82. 60. Tr. at 75, 77-78,81, 84. 61. Tr. at 89-90. 62. Government Exhibit 2 (Statement, dated March 2, 2004) at 2; Government Exhibit 1, supra note 1, at 6. 63. Tr. at 91. 64. Tr. at 91. 65. U. S. Department of State, Bureau of Consular Affairs, Consular Information Sheet: Republic of Korea, dated August 9, 2005, at 1. 66. U. S. Department of State, Country Reports on Human Rights: Republic of Korea - 2004, dated February 28, 2005, at 1. 67. The Library of Congress, Congressional Research Service, CRS Report for Congress, South Korea-U.S. Economic Relations: Cooperation, Friction, and Future Prospects, dated July 1, 2004, at 1. 68. Id. 69. U.S. National Counterintelligence Center, Annual Report to Congress on Foreign Economic Collection and Industrial Espionage, undated, at Appendix 2. 70. The Directive, as amended by Change 4, dated April 20, 1999, uses "clearly consistent with the national interest" (Sec. 2.3.; Sec. 2.5.3; Sec. 3.2.; and Sec. 4.2.; Enclosure 3, Sec. E3.1.1; Sec. E3.1.2.; and Sec. E1.25.), Sec. E3.1.26.; and Sec. E3.1.27.), "clearly consistent with the interests of national security" (Enclosure 2, Sec. E2.2.3.); and "clearly consistent with national security" (Enclosure 2, Sec. E2.2.2). 71. ISCR Case No. 98-0507 (Appeal Board Decision and Reversal Order, May 17, 1999), at 10.