CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 04-05804.h1 — CASE

ISCR Case 04-05804.h1granted

Case Headnote

ISCR Case No. 04-05804.h1

grantedOct 4, 2005· Hon. Richard A. Cefola· hearing

Summary

A 57-year-old former South Vietnamese Air Force officer was granted a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons cited that the Applicant's 88-year-old mother, three sisters, one brother, and a 16-17 year old niece are all citizens and residents of Vietnam. The Applicant had visited Vietnam once in 30 years, from December 1997 to January 1998, to attend his father's funeral.

Disqualifying conditions were raised due to the Applicant's mother residing in Vietnam, while mitigating conditions were applied concerning both his mother and his other siblings. The judge determined that none of the Applicant's foreign relatives were connected to any foreign government or subject to coercion.

The clearance was granted because the Applicant's family members in Vietnam were not connected to any foreign government, and he maintained minimal contact with them, which reduced potential coercion risks. Additionally, the Applicant demonstrated a lack of intent to visit Vietnam again, further mitigating foreign influence concerns.

Why the Applicant Prevailed

The Applicant's family members in Vietnam are not connected to any foreign government.
The Applicant has minimal contact with his foreign relatives, reducing potential coercion risks.
The Applicant demonstrated a lack of intent to visit Vietnam again, indicating reduced foreign influence.

Conditions Referenced

Disqualifying

1.a.raisedForeign Influence - Immediate Family Member Is a Citizen of a Foreign Country.

Mitigating

1.a.appliedForeign Influence - Immediate Family Members Are Not Agents of a Foreign Power.
1.b.appliedForeign Influence - Contact with Foreign Relatives Is Minimal.

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 issuedApr 26, 2005
Answer filedMay 13, 2005
Hearing heldAug 25, 2005
Decision dateOct 4, 2005

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Criteria for Assessing Foreign Influence in Security Clearance Cases
The Importance of Family Connections in Evaluating Security Risks

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 Applicant's foreign influence concerns stem from his family ties in Vietnam, including his mother, siblings, and niece, all of whom are citizens residing there. Despite these ties, the judge found that none of the Applicant's relatives are connected to the Vietnamese government or subject to coercion, leading to a favorable decision for the Applicant under Guideline B.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	The Applicant's 88 year old mother is a citizen of and resides in Vietnam.	For Applicant	Parent in Foreign Country Immediate Family	Vietnam	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
1.b	The Applicant has three sisters and one brother, who are citizens of and reside in Vietnam.	For Applicant	Sibling in Foreign Country Immediate Family	Vietnam	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
1.c	The Applicant has a 16~17 year old niece who is a citizen of and resides in Vietnam.	For Applicant	Extended Family in Foreign Country Extended Family	Vietnam	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
1.d	The Applicant has seen them once in 30 years.	For Applicant	Unspecified Foreign Relationship Other	Vietnam	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
1.e	None of the Applicant's foreign relatives is connected with any foreign government, nor are they subject to coercion.	For Applicant	Unspecified Foreign Relationship Other	Vietnam	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
1.f	The Applicant returned to Vietnam from December of 1997 to January of 1998 to attend his father's funeral.	For Applicant	Unspecified Foreign Relationship Other	Vietnam	Admitted	—	(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.

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: Foreign Influence

DIGEST: The Applicant was an officer in the South Vietnamese Air Force, who had to flee Vietnam with the fall of Saigon in 1975. His 88 year old mother is a citizen of and resides in Vietnam. He sends her between $100~$200 every two to four months to help with her medical expenses. The Applicant returned to Vietnam from December of 1997 to January of 1998 to attend his father's funeral. He has three sisters and one brother, who are also citizens of and reside in Vietnam. He has seen them once in 30 years. The Applicant's brother is a truck driver. The Applicant also has a 16–17 year old niece who is a citizen of and resides in Vietnam. None of the Applicant's foreign relatives is connected with any foreign government, nor are they subject to coercion. Mitigation is shown. Clearance is granted.

CASENO: 04-05804.h1

DATE: 10/04/2005

DATE: October 4, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-05804

DECISION OF ADMINISTRATIVE JUDGE

RICHARD A. CEFOLA

APPEARANCES

SYNOPSIS

The Applicant was an officer in the South Vietnamese Air Force, who had to flee Vietnam with the fall of Saigon in 1975. His 88 year old mother is a citizen of and resides in Vietnam. He sends her between $100~$200 every two to four months to help with her medical expenses. The Applicant returned to Vietnam from December of 1997 to January of 1998 to attend his father's funeral. He has three sisters and one brother, who are also citizens of and reside in Vietnam. He has seen them once in 30 years. The Applicant's brother is a truck driver. The Applicant also has a 16–17 year old niece who is a citizen of and resides in Vietnam. None of the Applicant's foreign relatives is connected with any foreign government, nor are they subject to coercion. Mitigation is shown. Clearance is granted.

STATEMENT OF CASE

On April 26, 2005, 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 May 13, 2005.

The case was received by the undersigned on July 19, 2005. A notice of hearing was issued on August 8, 2005, and the case was heard on August 25, 2005. The Government submitted documentary evidence. Testimony was taken from the Applicant, who also submitted documentary evidence. The transcript (TR) was received on September 14, 2005. The issue raised here is 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 57 years of age, 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 an officer in the South Vietnamese Air Force (TR at page 15 lines 5–8, and at page 26 line 14 to page 27 line 4). In 1975, he was forced to flee Vietnam with the fall of Saigon (Id).

1.a. and 1.e. The Applicant's 88 year old mother is a citizen of and resides in Vietnam (Government Exhibit (GX) 1 at page 4, TR at page 15 lines 4–11, and at page 24 lines 7–15). He sends her between $100~$200 every two to four months to help with her medical expenses (TR at page 18 lines 6–8).

1.b., 1.c. and 1.f. The Applicant has three sisters and one brother, who are citizens of and reside in Vietnam (GX 1 at page 4, TR at page 16 line 20 to page 17 line 23, at page 20 line 16 to page 21 line 3, and at page 24 line 16 to page 26 line 2). One sister takes care of the Applicant's mother, and the other two sisters live in Saigon (Id). The Applicant's brother is a truck driver (TR at page 20 lines 16–21). The Applicant has seen his siblings once in 30 years, when he returned to Vietnam from December of 1997 to January of 1998 to attend his father's funeral (GX 1 at page 5, and TR at page 18 line 9 to page 19 line 2). The Applicant has no intention of visiting Vietnam again (TR at page 19 lines 15–23). None of the Applicant's foreign relatives has any connection to the government of Vietnam or to any other foreign government (TR at page 21 lines 4–11, and at page 27 lines 5–8).

1.d. The Applicant has a 16–17 year old niece who is a citizen of and resides in Vietnam (TR at page 21 lines 12–18, and at page 26 lines 3–13). Mitigation

Those who know and work with the Applicant think most highly of him (Applicant's Exhibit A at pages 3–9).

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. Furthermore, 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 disqualifying 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 came to the U.S. in 1975; as he was an officer in the South Vietnam Air Force, and was forced to flee Vietnam with the fall of Saigon. However, the Applicant's mother, three sisters, brother, and a niece are citizens of and reside in Vietnam. The first disqualifying condition under Foreign Influence is therefore applicable as "[a]nimmediate family member . . . is a citizen of . . . a foreign country." Except for his 88 year old mother and the one sister who takes care of their mother, the Applicant has little contact with these foreign relatives. None of the Applicant's immediate family member is connected with any government, and there is no evidence that their presence in Vietnam can be exploited by any government. In addition, I conclude that it would be unlikely that the Applicant would even consider any such attempt at exploitation. The first mitigating condition is therefore applicable as "the immediate family members . . . 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 persons involved and the United States." Mitigation is shown. Guideline B is 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

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