KEYWORD: Criminal Conduct; Personal Conduct; Sexual Behavior; Alcohol DIGEST: Applicant is a 36-year-old facilities analyst employed by a defense contractor. He abused alcohol, committed a sexual battery against his 12-year-old step-daughter, and gave false answers to investigators on a security clearance application. With the passage of five years, he has been alcohol free, successfully completed alcohol and family counseling, and has restored the trust of his wife and step-daughter. He successfully mitigated the security concerns about criminal conduct, sexual behavior, and alcohol consumption. He failed to mitigate the security concerns about personal conduct. Clearance is denied. CASENO: 06-16545.h1 DATE: 07/19/2007 DATE: July 18, 2007 In re: --------------- SSN: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-15545 DECISION OF ADMINISTRATIVE JUDGE CHRISTOPHER GRAHAM APPEARANCES FOR GOVERNMENT Gina Marine, Esq., Department Counsel Richard Stevens, Esq., Department Counsel FOR APPLICANT Leslie McAdoo, Esq. SYNOPSIS Applicant is a 36-year-old facilities analyst employed by a defense contractor. He abused alcohol, committed a sexual battery against his 12-year-old step-daughter, and gave false answers to investigators on a security clearance application. With the passage of five years, he has been alcohol free, successfully completed alcohol and family counseling, and has restored the trust of his 2 wife and step-daughter. He successfully mitigated the security concerns about criminal conduct, sexual behavior, and alcohol consumption. He failed to mitigate the security concerns about personal conduct. Clearance is denied. Government Exhibit 1 (Security Clearance Application, dated February 20, 2002).1 Applicant’s Exhibits K through P; Tr. at 63-71.2 3 STATEMENT OF THE CASE On February 20, 2002, Applicant submitted a Security Clearance Application (SF 86). The Defense Office of Hearings1 and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. As required by Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended, DOHA issued a Statement of Reasons (SOR) on August 30, 2006, detailing the basis for its decision – security concerns raised under Guideline J (Criminal Conduct), Guideline E (Personal Conduct), Guideline D (Sexual Behavior), and Guideline G (Alcohol Consumption) of the Directive. The President issued revised adjudicative guidelines (AG) on December 30, 2005. DoD implemented them on September 1, 2006. Pending official amendment/reissue of DoD Directive 5220.6, the AG are to be used in all cases when the SOR is dated on or after September 1, 2006. Because the SOR was dated before September 1, 2006, DOD policy requires that this case proceed under the former guidelines. Applicant answered the SOR in writing on September 25, 2006, and elected to have a hearing before an administrative judge. The case was assigned to me on January 10, 2007, and a Notice of Hearing was issued on January 23, 2007 and February 22, 2007. I convened a hearing on March 28, 2007, and April 4, 2007, to consider whether it is clearly consistent with the national interest to grant or continue Applicant's security clearance. The government offered nine exhibits, marked as Exhibits 1-9. Applicant offered forty-one exhibits, marked as Exhibits A-OO. All government exhibits were admitted without objection. The government objected to Applicant's Exhibits A and F. The objections were overruled and the documents admitted. DOHA received the transcript (Tr.) on April 12, 2007. FINDINGS OF FACT Applicant admitted the allegations contained in SOR subparagraphs 1.a., 1.b., 1.c., 1.d., 3.a., 3.b., 4.b., 4.c., 4.d., and 4.e. He denied all other allegations in the SOR. The 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 36-year-old facilities analyst employed by a defense contractor. He is married and has four children. He is a high school graduate and has 56 credits toward a degree in business management. He served in the Army National Guard for two and one-half years, then spent six years active duty in the United States Army, and has been in the Army Reserve since 1999. He is currently an E-6, human resources sergeant. He has deployed to Bosnia and Iraq. Among awards he received are Army Achievement Medals, Army Commendation Medal, Joint Service Commendation Medal, and a NATO Medal, and he has held a security clearance since at least 1997.2 Criminal Conduct 4 Applicant received nonjudicial punishment in May 1994, under Article 15 of the Uniform Code of Military Justice for the offense of drunk driving. He was reprimanded, reduced in grade from E-4 to E-3, and required to perform extra duty for 45 days. He was charged with shoplifting on March 27, 1997. He was charged with theft under $300 on October 27, 1997. The charge was nolle prosequi. He was arrested on May 19, 2002, and charged with aggravated sexual battery. He entered a plea to sexual battery, was sentenced to 12 months in jail, suspended for two years conditioned on good behavior, taking a polygraph examination, undergoing a substance abuse evaluation, and participation in family counseling. Personal Conduct During the hearing, Applicant admitted that he falsified information on ten occasions. He omitted material facts on a security clearance application (SF 86), executed by him on February 20, 2002, on which he was required to reply to the following question: 26. Your Police Record - Other Offenses For this item, report information regardless of whether the record in your case has been sealed or otherwise stricken from the court record. The single exception to this requirement is for certain convictions under the federal controlled substances act for which the court issued an expungement order under the authority of 21 U.S.C. § 844 or 18 U.S.C. § 3607. In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25? (Leave out traffic fines of less than $150 unless the violation was alcohol or drug related.) He answered “No”, failing to disclose the shoplifting and theft arrests in 1997. During the course of several investigation interviews, he falsified answers. On July 30, 2002, Applicant had an interview with a DSS investigator. During the interview, he falsified information about the sexual abuse of his step-daughter, and his excessive use of alcohol to the point of intoxication between 1989 and 2002. He admitted the drunk driving arrest in the military, but not his shoplifting charge, and initially failed to disclose the sexual abuse of his step daughter and other prior criminal history until later in the interview. During a 2002 investigation by police of a complaint of sexual molestation, Applicant falsified material facts by stating that he did not recall an incident of alleged sexual abuse, failing to disclose that he did recall and had direct knowledge of committing the sexual battery for which he was charged. During a July 2, 2002, psycho-sexual risk assessment, while he did not deny that a sexual battery on his step-daughter occurred, he denied having specific knowledge of the offense, failing to disclose that he did recall and had direct knowledge of committing the sexual battery. During a treatment program from August 2002 to February 2003, he told providers that he had no recollection of a sexual assault on his 12 year old step-daughter, failing to disclose that he did recall and did have direct knowledge of committing the sexual battery. During an April 20, 2004, interview with a consultant, he denied specific knowledge of a sexual battery, although he did not deny that it occurred, failing to disclose that he did recall and did have direct knowledge of committing the sexual battery. I find that all of his falsifications were intentional. On March 19, 2004, Applicant was interviewed by DSS investigators. The following facts are taken from that interview: Government Exhibit 2 (Applicant’s Signed Statement, dated March 19, 2004) at 4; Tr. at 173.3 Id. at 8.4 Tr. at 144-145.5 Government Exhibit 2, supra, note 9, at 10; Tr. at 141.6 Government Exhibit 2, supra, note 9, at 15.7 Tr. at 101.8 Id. 9 5 1. Applicant told DSS that he last consumed alcohol in May 2002, and that he stopped for no particular reason, failing to admit he quit because of the sexual battery case.3 2. Applicant stated he was returning to duty at his reserve unit in April 2004, at which time he would share with his command the charges and conviction of sexual battery.4 Applicant did not tell his command about this case until the spring of 2007, three years later after the SOR had been issued.5 3. During a polygraph exam, Applicant told the examiner that he recalled the two incidents of sexually molesting his stepdaughter, and that he previously had told others that he could not recall because he was ashamed and embarrassed, then at the hearing on March 28, 2007, denied he gave those answers. 6 4. Applicant admitted that he was not totally truthful with the DSS interviewor on July 30, 2002, about his past use of alcohol.7 Sexual Behavior In May 2002, Applicant was charged with aggravated sexual battery of his 12-year-old step- daughter. He entered a guilty plea to sexual battery. He was sentenced to 12 months in jail, suspended for two years conditioned on good behavior, and required to undergo a polygraph examination, participate in a substance abuse evaluation, and attend family counseling. He received8 a psycho-sexual risk assessment in July 2002, and received treatment at an adult sex offender treatment program from December 2002 to February 2003, when treatment was suspended due to military deployment. Treatment resumed in March 2004. He successfully completed all of the court’s requirements, and was released from probation.9 Alcohol Consumption Id. at 78.10 Id. at 78.11 Id. at 90.12 Government Exhibit 7 (Applicant’s Treatment Records, dated February 13, 2003) at 7.13 Tr. at 79-81.14 Applicant’s Exhibit C (Letter of LCSW, dated March 2, 2007) at 1.15 Tr. at 188.16 Applicant’s Exhibit LL (Employment Application, dated July 21, 2002) at 3.17 Applicant Exhibit A (Reference Letter, dated February 6, 2007) at 1; Applicant’s Exhibit B (Reference Letter, dated18 February 8, 2007) at 1. Tr. at 32-50.19 6 Applicant consumed alcohol, at times to excess and to the point of intoxication, from approximately 1989 to July 2002. In 1994, while in the Army, he received an Article 15 for drunk10 driving. He consumed alcohol prior to the sexual battery in 2002. He has been alcohol free since July 2002. From August 2002 to February 2003, he received treatment from an alcohol and11 chemical dependency program, for a condition diagnosed as alcohol dependency. He successfully12 completed a program and was discharged on February 13, 2003. As of March 19, 2004, he13 attended Alcoholics Anonymous (AA) meetings. He regularly attended AA except during deployments in 2003-2004, and 2004-2005. He attended sporadically in 2006, because his wife lost her job, and he worked a second job to make up her income loss. She recently obtained employment and he has started attending AA again. He received a favorable prognosis by a credentialed14 medical professional or licensed clinical social worker who is a staff member of a recognized alcohol treatment program. 15 When first asked by the polygraph examiner whether he remembered the sexual battery incident, he initially said “No.” After being confronted with the fact that the polygraph indicated otherwise, that he had not been truthful, he then told the polygraph examiner that he did in fact remember the incident. On his employment application, for his current employer, he listed the16 2002 criminal case as a misdemeanor assault case. 17 One of applicant’s coworkers, and his facilities security officer, wrote letters of recommendation on his behalf, characterizing him as a trustworthy individual, hard worker, and definitely a team player. His best friend testified how Applicant had changed since he stopped18 drinking, that his relationship with his family has improved, and he has supported Applicant’s efforts in staying alcohol free. He also stated that he knew Applicant was going through alcohol treatment,19 but what it specifically entailed he did not know. Yet in a letter of recommendation he knew the Applicant’s Exhibit AA (Reference Letter, dated February 26, 2007) at 1.20 Tr. at 46.21 Id. at 55.22 Tr. part 2 at 5-52.23 7 name of the treatment facility. When asked if he actually wrote the letter he stammered and20 stumbled over the answer. He was not told of the sexual battery case until sometime in 2006. 21 22 Applicant’s wife testified that Applicant and his daughter now have a good relationship, and that she and her husband are communicating better and their relationship has improved. Although she did not feel he had a severe alcohol problem before the sexual battery, she has seen an enormous improvement in Applicant since he stopped drinking.23 POLICIES In an evaluation of an applicant’s security suitability, an administrative judge must consider Enclosure 2 of the Directive, which sets forth adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into Disqualifying Conditions (DC) and Mitigating Conditions (MC), which are used to determine an applicant’s eligibility for access to classified information. These adjudicative guidelines are not inflexible ironclad rules of law. Instead, recognizing the complexities of human behavior, an administrative judge should apply these guidelines in conjunction with the factors listed in the adjudicative process provision in Section E2.2, Enclosure 2, of the Directive. An administrative judge’s overarching adjudicative goal is a fair, impartial and common sense decision. Because the entire process is a conscientious scrutiny of a number of variables known as the “whole person concept,” an administrative judge should consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a meaningful decision. Specifically, an administrative judge should consider the nine adjudicative process factors listed at Directive ¶ E2.2.1: (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. Since the protection of the national security is the paramount consideration, the final decision in each case is arrived at by applying the standard that the issuance of the clearance is “clearly consistent with the interests of national security.” 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 grounded on mere speculation or conjecture. “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion24 in light of all the contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [a Judge’s] finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v.Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4 Cir. 1994).th ?The Administrative Judge [considers] the record evidence as a whole, both favorable and unfavorable, [evaluates]25 Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and [decides] whether Applicant [has] met his burden of persuasion under Directive ¶ E3.1.15.” ISCR Case No. 04-10340 at 2 (App. Bd. July 6, 2006). 8 In the decision-making process, facts must be established by “substantial evidence. The24 government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive. Once the government has produced substantial evidence of a disqualifying condition, the burden shifts to the applicant to produce evidence and prove a mitigating condition. Directive ¶ E3.1.15 provides, “The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and [applicant] has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” The burden of disproving a mitigating condition never shifts to the government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).25 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 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 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. The scope of an administrative judge’s decision is limited. 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 that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. CONCLUSIONS Criminal Conduct The government established its case under Guideline J. Criminal Conduct Disqualifying Conditions (CC DC) E2.A10.1.2.1. (Allegations or admissions of criminal conduct, regardless of whether the person was formally charged) and E2.A10.1.2.2. (A single serious crime or multiple lesser offenses) apply. Applicant admitted his criminal conduct, including sexual battery of his step- daughter. Tr. part 2 at 5-52.26 Tr. at 63-198.27 9 Criminal Conduct Mitigating Conditions (CC MC) E2.A10.1.3.1 (The criminal behavior was not recent) does apply. The major incident occurred five years ago and there has been no criminal activity since then. The false statements on the SF 86 and to the investigators give rise to the charges under 18 U.S.C. § 1001, occurred in 2002. They also are not recent. Also, CC MC E2.A10.1.3.6. (There is clear evidence of successful rehabilitation) is applicable. Applicant completed all requirements imposed by the court in his 2002 sexual battery case. His relationship with his wife and step-daughter has improved. I conclude Guideline J for Applicant. Personal Conduct The government established its case under Guideline E. Personal Conduct Disqualifying Conditions (PC DC) E2.A5.1.2.2. (The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities) and E2.A5.1.2.3. (Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other official representative in connection with a personnel security or trustworthiness determination) apply. Applicant admitted he was not truthful in answering questions on his SF 86 and to investigators. I do not believe Applicant is subject to coercion, duress, or blackmail because of his conduct. His wife and family know about it and his employer knows a part of it. What is troubling is the appearance to me that Applicant is not willing to disclose the entire truth about his negative behavior. He says he sexually abused his step-daughter, but can’t remember doing it. He blamed it on alcohol. Yet his wife did not believe that he had much of an alcohol problem prior to the battery. He shaded26 the truth in his DSS interview in July 2002. There is a pattern of attempting to spin the answers throughout his testimony. This is problematic because candor with the government about a person’s27 negatives is the crux of a security clearance determination. If a person discloses their personal adverse information, then he or she is more likely to be trustworthy with confidential or classified information. None of the mitigating conditions apply. I conclude Guideline E against Applicant. Sexual Behavior The government made its case under Guideline D. Sexual Behavior Disqualifying Conditions (SB DC) E2.A4.1.2.1. (Sexual behavior of a criminal nature, whether or not the individual has been prosecuted), E2.A4.1.2.3. (Sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress), and E2.A4.1.2.4. (Sexual behavior of a public nature and/or that which reflects lack of discretion or judgment) are all applicable. Applicant was convicted of sexual battery involving his 12-year-old step-daughter. The nature of this crime makes him vulnerable and reflects lack of judgment. I find that Sexual Behavior Mitigating Conditions (SB MC) E2.A4.1.3.2. (The behavior was not recent and there is no evidence of subsequent conduct of a similar nature), E2.A4.1.3.3. (There Directive ¶ E.2.2.1.28 Id.29 Id.30 10 is no other evidence of questionable judgment, irresponsibility, or emotional instability), and E2.A4.1.3.4. (The behavior no longer serves as a basis for coercion, exploitation, or duress) are all applicable. Applicant completed all required conditions of probation. There are no other instances of sexual impropriety. He has earned the trust of his step-daughter and wife once again. He is not capable of being blackmailed over this incident, and I find that he is rehabilitated. I conclude Guideline D for Applicant. Alcohol Consumption The government established its case under Guideline G. The following Guideline G Alcohol Consumption Disqualifying Conditions (AC DC) apply: E2.A7.1.2.1. (Alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, or other criminal incidents related to alcohol use), E2.A7.1.2.3. (Diagnosis by a credentialed medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence), E2.A7.1.2.4. (Evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program), and E2.A7.1.2.5. (Habitual or binge consumption of alcohol to the point of impaired judgment) all apply. Applicant admitted alcohol abuse and the charges related to it. He was also diagnosed as alcohol dependent. . In considering mitigation, Alcohol Consumption Mitigating Conditions (AC MC) E2.A7.1.3.2. (The problem occurred a number of years ago and there is no indication of a recent problem), E2.A7.1.3.3. (Positive changes in behavior supportive of sobriety), and E2.A7.1.3.4. (Following diagnosis of alcohol abuse or alcohol dependence, the individual has successfully completed inpatient or outpatient rehabilitation along with aftercare requirements, participates frequently in meetings of Alcoholics Anonymous or a similar organization, has abstained from alcohol for a period of at least 12 months, and received a favorable prognosis by a credentialed medical professional or licensed clinical social worker who is a staff member of a recognized alcohol treatment program) are applicable. Applicant has been alcohol free for nearly five years. He successfully attended a treatment program, joined AA, and has not had a drink in nearly 60 months. His wife confirms changes in his behavior since he has remained sober. His conduct is mitigated and I conclude Guideline G for Applicant. Whole Person Analysis “The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is eligible for a security clearance.” “Available, reliable28 information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.” In evaluating Applicant’s case, in addition to the disqualifying and29 mitigating conditions, I also considered the “whole person” concept in evaluating Applicant’s risk and vulnerability in protecting our national interests. I considered his age (36), his education, his30 employment, his military service including two deployments, and what might motivate him to be less than truthful. Applicant supplied false answers on a security clearance application. His statements to police and DSS investigators shaded the truth. This raises questions about his reliability, honesty, 11 and judgment. I have no doubt Applicant was extremely embarrassed by the sexual battery case. But he should learn that to hold a security clearance, he must tell the “truth, the whole truth, and nothing but the truth.” Parsing words and trying to spin answers to shade the truth raises reasonable and persistent doubts about Applicant's ability to protect classified information and to exercise the requisite good judgment and discretion expected of one in whom the government entrusts its interests. I conclude it is not clearly consistent with the national interest to grant or continue Applicant’s security clearance. FORMAL FINDINGS Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1. Guideline J: 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 Paragraph 2. Guideline E: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Subparagraph 2.b: Against Applicant Subparagraph 2.c: Against Applicant Subparagraph 2.d: Against Applicant Subparagraph 2.e: Against Applicant Subparagraph 2.f: Against Applicant Subparagraph 2.g: Against Applicant Subparagraph 2.h: Against Applicant Subparagraph 2.i: Against Applicant Subparagraph 2.j: Against Applicant Paragraph 3. Guideline D: FOR APPLICANT Subparagraph 3.a. For Applicant Subparagraph 3.b. For Applicant Paragraph 4. Guideline G: FOR APPLICANT Subparagraph 4.a: For Applicant Subparagraph 4.b: For Applicant Subparagraph 4.c: For Applicant Subparagraph 4.d: For Applicant Subparagraph 4.e: For Applicant 12 DECISION In light of all of the circumstances in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied. Christopher Graham Administrative Judge