DATE: April 18, 2002

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

CLAUDE R. HEINY

APPEARANCES

FOR GOVERNMENT

Kathryn D. MacKinnon, Esquire, Department Counsel

Rita C. O'Brien, Esquire, Department Counsel

FOR APPLICANT

Martin J. Sendek, Esquire

SYNOPSIS

The Applicant is a dual US-Norwegian citizen. He was born in Norway to a US citizen. He has a current Norwegian passport and does not intend to relinquish it. Because the Applicant holds a foreign passport, clearance is denied.

STATEMENT OF THE CASE

On January 28, 2002, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, stating that DOHA could not make the preliminary affirmative finding ⁽¹⁾ it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On February 1, 2002, the Applicant answered the SOR and requested a hearing. The case was assigned to me on March 7, 2002. A Notice of Hearing was issued on March 8, 2002, which for good cause was amended and a second Notice of Hearing was issued on March 20, 2002, scheduling the hearing which was held on April 4, 2002. The Government's case consisted of two exhibits (Gov Exs). The Applicant relied on his own testimony, and four documents. (App Exs) The record was held open to allow the Applicant to submit additional documents. A transcript (tr.) of the hearing was received on April 12, 2002. On April 16, 2002, following the hearing, a single submission, containing multiple pages, was received. Department counsel having no objection to its admission, the submission was admitted as App Ex E.

The SOR alleges foreign preference (Guideline C) and foreign influence (Guideline B). The Applicant admits some of the allegations and denies the rest.

The Applicant is 26-years-old, has worked for a defense contractor since September 1999, and is seeking to obtain a security clearance.

The Applicant was born in Norway to a US citizen living abroad. His mother is a US citizen and his father a Norwegian. His parents met attending college in England. His father got his master's degree in the US before returning to Norway to work. His mother, father, sister, and half sister currently live in Norway. While growing up, he traveled every other year to see his relatives in Ohio. Between August 1993 and May 1994, he attended high school in the US. In August 1992 through June 1993 and August 1994 through May 1996, he attended high school in Norway. In August 1996, he came to the US to attend university. He graduated in May 1999. The Applicant is married to a Norwegian citizen who lives in the US. His wife has her green card and must be in the US five years before she can apply to become a US citizen.

While attending school in the US, he returned to Norway during the summer and at Christmas time. During the summer he would work for Norwegian companies. He has not worked for a Norwegian company since completing college.

In 1994, the Applicant got a Norwegian passport which he renewed in July 1996, which expires in July 2006. His US passport was issued in June 1998. Between 1996 and 2001, the Applicant used his Norwegian passport to travel to Norway. In 1996, he used his Norwegian passport to travel to Malta. He maintains his Norwegian passport because it gives him more freedom to travel and allows to work in Norway. Non Norwegian citizens cannot enter Norway with a one way ticket. He was told he, as a Norwegian citizen, was not allowed to enter Norway on a US passport.

The Applicant has a Norwegian bank account. The Applicant's US grandfather set up a trust fund for him and his sister. Because his parents were living in Norway, the trust account was established there. His portion of the trust funds will be paid in full by the Fall of 2003. The majority of the funds were used for the Applicant's education and must be paid to a Norwegian bank account. The trust fund pays him $100.00 to $200.00 per month. The account's current balance is $2,500.00 to $3,000.00. His Norwegian bank account is also convenient when he travels. The Applicant maintains financial accounts in US banks with a balance of $3,000.00 to $5,000.00. He has a 401(k) plan to which he contributes 12% of his pay and his employer contributes 4%. He does not have a Norwegian pension fund.

The Applicant voted a year ago in a Norwegian election. As a citizen living abroad he was allowed to vote in the national election but not in the local elections. He regularly votes in US elections. He has never served in either the Norwegian or US military, but is currently registered with the US selective service.

As a Norwegian citizen he would be entitled to free education regardless of where he lives. Norway will pay for his master's degree. In January 2001, he made a sworn statement that he was unwilling to renounce his dual citizenship. At some time in the future, the Applicant may renounce his Norwegian citizenship.

The Applicant did not know he had a half sister until he was 17 years old. His half sister is eight or nine years older than he is. She does not work for a foreign government. He sends her birthday and Christmas cards. His father owns his own business doing public relations, public marketing, layout, logo design, and training. His father's business is incorporated which requires three Norwegian citizens. The Applicant, his father, and sister are the three persons. The Applicant's interest in his father's business is between $500.00 and $1,000.00. His mother is a translator working for a Norwegian bank. The Applicant has US citizen relatives whom he e-mails once a month and calls on major holidays. His mother's family lives in the US. His father's family migrated to the US in the 1930's. He calls his parents on weekends and emails them. His communication with his sister is somewhat less, but he still calls her every weekend.

The Applicant attended press conferences and other meetings at the Norwegian Embassy from February 1997 to May 1999, while serving as a corresponding journalist for a Norwegian-American newspaper.

On August 16, 2000, the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASDC3I) issued guidance clarifying the application of the Foreign Preference adjudicative guideline, hereinafter "ASDC3I memo." In January 2001, a copy of the ASDC3I memo accompanied the SOR. The Applicant has taken no steps to relinquish his Norwegian passport.

The Adjudicative Guidelines in the Directive are not a set of inflexible rules of procedure. Instead, they are to be applied by Administrative Judges on a case-by-case basis with an eye toward making determinations that are clearly consistent with the interests of national security. In making overall common sense determinations, Administrative Judges must consider, access, and analyze the evidence of record, both favorable and unfavorable, not only with respect to the relevant Adjudicative Guidelines, but in the context of factors set forth in section E 2.2.1. of the Directive as well. In that vein, the government not only has the burden of proving any controverted fact(s) alleged in the SOR, it must also demonstrate the facts proven have a nexus to an Applicant's lack of security worthiness.

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance.

Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:

Foreign Preference (Guideline C)The Concern: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. E2.A3.1.1.

Conditions that could raise a security concern and may be disqualifying include: E2.A3.1.2.

1. The exercise of dual citizenship. E2.A3.1.2.1.

2. Possession and/or use of a foreign passport. E2.A3.1.2.2.

4. Accepting educational, medical, or other benefits, such as retirement and social welfare, from a foreign country. E2.A3.1.2.4.

8. Voting in foreign elections. E2.A3.1.2.8.

Conditions that could mitigate security concerns include: E2.A3.1.3.

None Apply.

Foreign Influence (Guideline B) The Concern: 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. E2.A2.1.1.

Conditions that could raise a security concern and may be disqualifying include 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; E2.A2.1.2.1.

Conditions that could mitigate security concerns include: 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. E2.A2.1.3.1.

5. Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities. E2.A2.1.3.5.

Initially, the Government has the burden of proving any controverted fact(s) alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the Applicant who must remove that doubt and establish his security suitability with substantial evidence in explanation, mitigation, extenuation, or refutation, sufficient to demonstrate that despite the existence of guideline conduct, it is clearly consistent with the national interest to grant or continue his security clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he is nonetheless security worthy. As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." As this Administrative Judge understands the Court's rationale, doubts are to be resolved against the applicant.

The Government has satisfied its initial burden of proof under Guideline C, Foreign Preference. Under Guideline C, the security eligibility of an applicant is placed into question when an individual acts in such a way as to indicate a preference for a foreign country over the United States; he may then be prone to provide information or make decisions that are harmful to the interests of the United States.

Four Disqualifying Conditions (DC) apply to the Applicant. The Applicant holds dual citizenship with the US and Norway, (DC 1). The Applicant was born in Norway to a US citizen living abroad. In July 1996 he was issued a Norwegian passport which does not expire until July 2006, (DC 2). Although issued a US passport in 1998, he uses his Norwegian passport to travel to Norway. He has voted in both US and Norwegian elections. He last voted in a Norwegian election about a year ago, (DC 8). He maintains his Norwegian citizenship because he is entitled to free education and may use his citizenship to pay for his master's degree, (DC 4). He maintains the foreign passport to allow easier travel should he travel to Norway and Europe, allows him to work there, and to stay there longer.

On August 16, 2000, the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence issued guidance clarifying the application of the Foreign Preference adjudicative guideline. The ASDC3I memo states any clearance must be denied or revoked unless the applicant surrenders the foreign passport or obtains approval for its use from the appropriate agency of the United States government. In January 2001, a copy of the ASDC3I memo accompanied the SOR. The Applicant has taken no steps to relinquish his Norwegian passport. The Applicant renewed his Norwegian passport in 1996. At some undisclosed date in the future, the Applicant may relinquish is Norwegian citizenship. The memo requires surrender of the foreign passport, which the Applicant has not done. Nor has he received approval by the U.S. government for its use. Application of the ASDC3I memo is dispositive on the issue of Applicant's possession of a foreign passport. I find against the Applicant as to Foreign Preference (Guideline C) SOR subparagraphs 1.a., 1.b., 1.c., 1.d., 1.e., and 1.f.

The Applicant has $2,500.00 to $3,000.00 in a Norwegian bank account. The Applicant is one of the three persons in the incorporation of his father's business. The Applicant's interest in his father's company is between $500.00 and $1,000.00. These amounts are insignificant. I find for the Applicant as to SOR subparagraphs 1.g. and 1.h.

The Applicant had a number of jobs before he finished college. He worked as a corresponding journalist for a Norwegian-American newspaper, and during his summer breaks from school with Norwegian companies. Since these were part time jobs held by the Applicant prior to him finishing college, I find for the Applicant as to SOR subparagraphs 1.i., 1.j., and 1.k.

The Government has satisfied its initial burden of proof under Guideline B, (Foreign Influence). Under Guideline B, the security eligibility of an applicant is placed into question when the person has immediate family members or a person to whom the individual has close ties of affection are citizens of and/or residing in a foreign country. A security risk may exist where the Applicant is bound by affection, influence, or obligation to individuals who are not citizens of the United States or may be subject to duress. The Applicant's father and half sister are citizens of Norway. His sister is a dual US-Norwegian citizen. His mother resides in Norway. His wife is a Norwegian citizen who is living permanently in the US. Thus, disqualifying condition, E2.A2.1.2.1. ⁽²⁾ applies.

The burden is on the Applicant to demonstrate these foreign nationals are not in a position to be exploited by a foreign power. His relatives, including his wife, do not work for a foreign government, have never worked for a foreign government, nor are they agents of a foreign power. His ties to his relatives present an acceptable security risk. The security concerns engendered by the foreign citizenship of his relatives are mitigated and MC 1 ⁽³⁾ applies. His relatives 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 persons involved and the United States. Additionally, the Applicant contacts his half sister with birthday cards and Christmas cards. His contact with his half sister is casual. MC 3 ⁽⁴⁾ applies. I find for the Applicant as to SOR subparagraph 2.a., 2.b., 2.c., 2.d. and 2.e.

In reaching my conclusions I have also considered: the nature, extent, and seriousness of the conduct; the Applicant's age and maturity at the time of the conduct; the circumstances surrounding the conduct; the Applicant's voluntary and knowledgeable participation; the motivation for the conduct; the frequency and recency of the conduct; presence or absence of rehabilitation; potential for pressure, coercion, exploitation, or duress; and the probability that the circumstance or conduct will continue or recur in the future.

Formal Findings as required by Section 3., Paragraph 7., of Enclosure 1 of the Directive are hereby rendered as follows:

Paragraph 1Guideline C (Foreign Preference): AGAINST THE APPLICANT

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: Against the Applicant

Subparagraph 1.c.: Against the Applicant

Subparagraph 1.d.: Against the Applicant

Subparagraph 1.e.: Against the Applicant

Subparagraph 1.f.: Against the Applicant

Subparagraph 1.g.: For the Applicant

Subparagraph 1.h.: For the Applicant

Subparagraph 1.i.: For the Applicant

Subparagraph 1.j.: For the Applicant

Subparagraph 1.k.: For the Applicant

Paragraph 2 Guideline B (Foreign Influence): FOR THE APPLICANT

Subparagraph 2.a.: For the Applicant

Subparagraph 2.b.: For the Applicant

Subparagraph 2.c.: For the Applicant

Subparagraph 2.d.: For the Applicant

Subparagraph 2.e.: For the Applicant

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant.

1. Required by Executive Order 10865, as amended and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 as amended.

2. DC 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. E2.A2.1.2.1.

3. MC 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. E2.A2.1.3.1.

4. MC 3. Contact and correspondence with foreign citizens are casual and infrequent. E2.A2.1.3.3.