1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 07-06503 SSN: ) ) Applicant for Security Clearance ) Appearances For Government: James F. Duffy, Esquire, Department Counsel For Applicant: Pro Se ______________ Decision ______________ HOGAN, Erin C., Administrative Judge: Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP), on January 5, 2006. On December 14, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline J, Criminal Conduct, and Guideline E, Personal Conduct, for Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive), and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006. On January 7, 2008, Applicant answered the SOR and requested a hearing before an Administrative Judge. Department Counsel was prepared to proceed on February 11, 2008. The case was assigned to me on February 14, 2008. DOHA issued a notice of hearing on March 11, 2008, and I convened the hearing as scheduled on March 26, 2008. The government offered Exhibits (Gov) 1 through 13, which were admitted without objection. Applicant testified on his own behalf and submitted two documents which were admitted as Applicant Exhibit (AE) A and B without objection. 2 The record was held open until April 9, 2008, to allow Applicant to submit additional documents. Applicant timely submitted an 18-page document which was admitted as AE C without objection. DOHA received the transcript of the hearing (Tr) on April 9, 2008. The record closed on that date. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to classified information is granted. Findings of Fact In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a – 1.g, 1.i - 1.n, and denied the allegations in ¶¶ 1.h, and 2.a – 2.e. Applicant is a 52-year-old field service engineer employed by a Department of Defense contractor seeking a security clearance. He held a security clearance while on active duty in the Air Force and during a previous job. He has worked for his current employer since April 2004. He has an Associates Degree in computer science. He is married and has five adult children between the ages of 24 to 34. (Tr at 5, 19-20, 45; Gov 1.) He served on active duty in the Air Force as a radar operator from March 19, 1974 to March 17, 1978. He separated at the rank of Senior Airman (E-4) with an Honorable Discharge. (Tr at 20; AE A.) Since 1974, Applicant has been arrested 14 times. His arrests include the following: On February 6, 1974, he was arrested and charged with possession of marijuana. The charge was later dropped. (Gov 2 at 8; Gov 4 at 3; Gov 5 at 1; Gov 13; Answer to SOR.) On October 9, 1976, he was arrested and charged with Driving While Under the Influence. He was on active duty in the Air Force at the time. On November 1, 1976, he pled guilty and was ordered to pay a $600 fine. His Air Force commander gave him a Letter of Reprimand. (Gov 2 at 6; Gov 4 at 6; Gov 6 at 5; Answer to SOR.) On December 11, 1977, he was arrested and charged with Contempt of Court and Driving With a Suspended License. On December 12, 1977, he was found guilty of the offense. He was fined $205 and sentenced to one year probation. (Gov 4 at 6; Answer to SOR.) On February 12, 1978, he was arrested and charged with Failure to Pay Fine and Contempt of Court/Driving With a Suspended License. He was convicted for this offense. (Gov 4 at 6; Answer to SOR.) On June 4, 1980, he was arrested and charged with Contempt of Court/Child Support. He did not receive notice that his child support was doubled. He was paying the original amount. He appeared in court and resolved the issue. Charges were dropped. (Tr at 23-24; Gov 3 at 1; Gov 4 at 3; Answer to SOR.) 3 On January 13, 1983, he was arrested and charged with Contempt of Court. He fell behind his child support payments. He was making partial payments because he was collecting workman’s compensation following back surgery, and was earning two thirds of his pay. (Tr at 23; Gov 3 at 1; Gov 4 at 3; Gov 5 at 2; Answer to SOR.) In 1986, he was arrested and charged with Failure to Pay Child Support. (Gov 2 at 9.) In his answer to the SOR, Applicant denies the allegation because he believes the date is incorrect, and that this offense is the same as the January 1983 arrest. (Answer to SOR.) His explanation is plausible because the arrest does not show up in his criminal records. (Gov 5; Gov 5.) On July 28, 1987, he was arrested and charged with Telephone Harrassment/Threat. (Gov 3 at 2; Gov 4 at 3; Gov 5 at 2; Gov 11; Answer to SOR.) On June 25, 1988, he was arrested and charged with Assault and Criminal Trespass. On December 15, 1988, he was found not guilty. (Gov 3 at 2; Gov 4 at 3; Gov 5 at 2; Gov 10; Answer to SOR.) On January 9, 1991, he was arrested and charged with Assault/Family Violence. (Gov 3 at 2; Gov 4 at 3; Gov 5 at 3; Gov 9; Answer to SOR.) On July 20, 1991, he was arrested and charged with Assault/Family Violence, and Violation of a Protection Order. The charges were dismissed on September 19, 1991. (Gov 3 at 2; Gov 4 at 3; gov 5 at 3; Gov 8; Answer to SOR.) On August 4, 1993, he was arrested and charged with Assault/Family Violence. (Gov 3 at 2; Gov 4 at 3; Gov 5 at 3; Gov 6 at 5; Gov 7; Answer to SOR.) On July 12, 1999, he was arrested and charged with Assault/Causing Bodily Injury to a Family Member. On January 25, 2000, the charge was dismissed. (Gov 2 at 7; Gov 4 at 3; Answer to SOR.) On May 12, 2003, he was arrested and charged with Aggravated Assault with a Deadly Weapon. Earlier in the evening, Applicant and his family members were celebrating Mother’s Day. Applicant’s 20-year-old stepson had too much too drink. He got into a fight with Applicant’s son and ran away. Later in the evening, he returned home and hit Applicant on the head with a nightstick. Applicant hit him back with a nightstick to subdue him. His stepson filed charges. The prosecutor’s office dropped the charges after they interviewed witnesses and learned that Applicant’s stepson had attacked him first. (Tr at 24-28; Gov 1; Gov 2 at 3-5; Gov 4 at 4: Answer to SOR.) Applicant completed a personnel security questionnaire on November 18, 1994. In response to question “18(a) Have you ever been arrested, charged, cited, held, or detained by Federal, State, or other law enforcement or juvenile authorities regardless of whether the charge was dropped or dismissed or you were found not guilty?” he listed a 1974 charge for possession of marijuana (SOR ¶ 1.n); a 1976 DUI charge (SOR 4 ¶ 1.o); a 1993 family violence charge (SOR ¶ 1.c); a 1993 public intoxication charge (not alleged in the SOR); an 1992 family violence charge (SOR ¶ 1.d); a 1991 family violence charge (SOR ¶ 1.e); a 1987 assault charge (SOR ¶ 1.f); and a 1988 assault by threat charge (SOR ¶ 1.g). (Gov 6 at 2-3, 5.) On the same questionnaire, Applicant answered “no” in response to question 20(a), which asked “Have you ever tried or used or possessed any narcotic (to include heroin or cocaine) depressant (to include Quaaludes), stimulant, hallucinogen (to include LSD or PCP), or cannabis (to include marijuana or hashish), or any mind- altering substance (to include glue or paint), even one-time or on an experimental basis, except as prescribed by a licensed physician?” He was subsequently interviewed and provided a signed, sworn statement dated January 30, 1996. In the statement, Applicant admitted that he did not list his past marijuana use which occurred from 1973-1974 on his personnel security questionnaire, dated November 18, 1994. (Gov 3; Gov 6.) He stated, I did not list the use because it was so long ago and because like anyone I did not want to admit that I had done this. I understand that I was omitting pertinent information from my PSQ and that I certified my PSQ, certifying it was true, complete and correct. I also realize that having done this I cause doubt about the information I am now presenting. I assert however that I am being forthcoming about my use now and that there is nothing I need to add. (Gov 3 at 3.) Applicant also discussed the arrests alleged in SOR ¶¶ 1.c, 1.d, 1.e, 1.f, 1.g, 1.h, 1.i, 1.j, and 1.m in the January 30, 1996, signed, sworn, statement. (Gov 3.) After this interview and the investigation, Applicant was granted a security clearance. (Tr at 36, 44-45.) On January 5, 2006, Applicant submitted an Electronic Questionnaire for Investigations Processing. In response to “Section 23(f): Your Police Record. In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in response to a, b, c, d, of e above? (Leave out traffic fines of less than $150 unless the violation was alcohol or drug related.),” he answered, “Yes” and listed a May 2002 arrest for assault. (This is the arrest that is alleged in SOR ¶ 1.a which actually occurred in 2003.) He did not list his July 12, 1999 arrest for assault/causing bodily injury to a family member. Applicant testified that he did not list the July 1999 arrest because he thought it was more than seven years old. (Tr at 32; Gov 1; Gov 2 at 7; Gov 4 at 3; Answer to SOR.) Applicant answered “yes” in response to question “23d. Have you ever been charged or convicted of any offense(s) related to alcohol or drugs?” He listed his 1977 arrest for DUI. (Gov 1, section 23.) Applicant was interviewed by an investigator pursuant to his background investigation on March 21, 2007. The purpose of the interview was to discuss his May 12, 2003 arrest for Aggravated Assault. No signed, sworn, statement was taken during the interview. Applicant verified the unsworn summary of the interview as being 5 accurate in response to a DOHA interrogatory. (Gov 2) It is alleged that Applicant falsified material facts during this interview by stating that he had no other arrests other than the 2003 arrest for Aggravated Assault. The specific statement in the summary of the interview reads as follows: The District Attorney dropped the charge as listed, of aggravated assault with a deadly weapon, as a result, the subject was never required to appear in court and was assessed no fine or fees. He had no other problems with his step-son thereafter. He has had no other arrests. (Gov 2 at 4-5.) Applicant does not recall what the investigator specifically asked him pertaining to other arrests. He believed that he had to discuss arrests within the past seven years. None of his previous arrests occurred within seven years at the time of the interview. (Tr at 29-33.) The investigator did not testify. One could interpret the statement to mean that Applicant had no arrests since the 2003 incident which would be an accurate statement. On April 10, 2007, Applicant was interviewed again. During this interview, he discussed the arrests alleged in SOR ¶¶ 1.b, 1.h, 1.m, and 1.n. The summary of the interview states at the end, “The Subject had no other arrests in his background.” (Gov 2 at 6-10.) It is alleged Applicant falsified material facts by stating he had no other arrests in his background. At hearing, Applicant testified that to the best of his knowledge, during the interview, he had no other arrests. He remarked that he should have gotten a copy of his arrest record so that he could have been more precise. He was answering the question based on memory. (Tr at 32-36.) An FBI Identification Record dated October 27, 2005, states that Applicant has several aliases. (Gov 4.) One of the aliases listed was Applicant’s nickname in college. Another alias was his mother’s maiden name. He has never used his mother’s maiden name or his nickname when signing legal documents. He has never used an alias in furtherance of an illegal activity. (Tr at 41-43.) Applicant’s performance reports for 2005, 2006, and 2007, rate him as either meeting or exceeding his performance requirements. (AE C.) His 2007 performance report comments that he makes it a point to leave the customer completely satisfied when he leaves a job site, and he strives to be a good example. (AE C at 4.) His 2006 performance report comments that “[he] has been a great addition to the [military base] team. His willingness to learn and dedication have earned him the respect of the customer, fellow employees, and supervisors. His resourcefulness and initiative while deployed to a war zone are nothing short of outstanding. [He] is a self motivated and enthusiastic leader that will have a great future in our organization.” (AE C at 11.) Applicant has worked with units overseas in Iraq and Afghanistan. He has served 90-day deployments in Iraq three times in the summers of 2004, 2005, and 2006. Applicant testified that he deployed to Afghanistan for a 90-day period in either 6 January 2005 or January 2006. His 2007 performance report indicates he deployed to Afghanistan in 2007. The January 2007 date is the more accurate date. (Tr at 57-58; AE C.) He is the commander of his American Legion Post. He was previously a service officer and on the executive committee at the post. (Tr at 55-56.) Policies When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an Applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The Administrative Judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole person concept.” The Administrative Judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor 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. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, 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. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security decision. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the 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. 7 Section 7 of Executive Order 10865 provides that 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Criminal Conduct The security concern raised under the criminal conduct guideline is set forth in ¶ 30 of the Revised Adjudicative Guidelines: Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules and regulations. There are two Criminal Conduct Disqualifying Conditions (CC DC) which apply to Applicant’s case. CC DC ¶ 31(a) (a single serious crime or multiple lesser offenses) and CC DC ¶ 31(c) (allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted) apply. From 1974 to May 2003, Applicant was arrested or charged with offenses on 14 occasions. Ten of those charges involved or related to domestic disputes. In the 1970s, Applicant was arrested and charged with Driving While Under the Influence; Possession of Marijuana; Contempt of Court/Driving With A Suspended License and Failure to Pay fine and Contempt of Court/Driving With a Suspended License. The Possession of Marijuana charge was dismissed. He was convicted of the other three offenses. The criminal conduct concern can be mitigated. I find that Criminal Conduct Mitigating Condition (CC MC) ¶ 32(a) (so much time has elapsed since the criminal behavior happened, or it happened under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment) applies. Applicant has not been arrested or charged with an offense since May 2003. The last arrest involved an argument with his intoxicated, underage stepson. Applicant’s actions were out of self-defense as opposed to intentional aggression. The District Attorney dismissed the charges after interviewing witnesses. He has become more responsible over the five year period since his last offense. Since 1983, the majority of the offenses were related to family arguments or involved child support issues. Applicant’s children are grown and the child support situation is resolved. His domestic situation with his current wife appears to be stable. CC MC ¶ 32(c) (evidence that the person did not commit the offense) applies with respect to SOR ¶ 1.f. The case went to trial and Applicant was found not guilty. CC MC ¶ 32(d) (there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or 8 restitution, job training or higher education, good employment record, or constructive community involvement) applies. Close to five years have passed since Applicant’s last arrest. During that time, Applicant made a positive contribution to his employer as evidenced by his favorable performance reviews. He has deployed to Iraq on three occasions and to Afghanistan on one occasion. He is the commander of his American Legion Post. Although Applicant has an extensive arrest record, the majority of the arrests involved domestic disputes with Applicant’s former wives. While I do not condone Applicant’s past history of domestic disputes, his current domestic situation is stable. Applicant has mitigated the criminal conduct concern. Personal Conduct The security concern relating to the guideline for Personal Conduct is set out in AG &15: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. Applicant’s omission of his July 1999 arrest for Assault/Causing Bodily Injury on his January 5, 2006, security clearance questionnaire raises the potential application of Personal Conduct Disqualifying Condition (PC DC) ¶ 16(a) (deliberate omission, concealment, or falsification of relevant 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). Applicant explained that he did not list the July 1999 arrest on his security clearance application because he thought it was more than seven years old. I find his explanation credible. He listed his most recent arrest for Aggravated Assault with a Deadly Weapon. He listed a 1977 DUI arrest in response to question 23(d). The July 1999 arrest occurred near the seven year mark. It is reasonable to conclude that Applicant thought it was over seven years old. I find for Applicant with respect to SOR ¶ 2.a. Personal Conduct Disqualifying Condition (PC DC) ¶ 16(a) (deliberate omission, concealment, or falsification of relevant 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) applies to Applicant’s admission in January 1996, that he did not list his use of marijuana between 1973 to 1974 on a personal security questionnaire dated November 15, 1994. 9 PC DC ¶ 16(b) (deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other government representative) is potentially raised pertaining to the alleged misstatement by Applicant during an interview with an investigator on March 21, 2007, and on April 10, 2007 that he had no other arrests. When he was interviewed on March 21, 2007, Applicant thought that he only had to disclose arrests that were within the past 7 years. The record is ambiguous as to what Applicant was specifically asked during the interview. The investigator did not testify during the hearing. The basis for the falsification allegation comes from an unsigned, unsworn statement which summarizes the applicant’s interview. The statement which is the basis for the allegation is somewhat vague. The reliability of the statement itself is questionable. It is not clear how soon after the interview the statement was prepared. The government has not established a prima facie case with respect to this allegation. I find for Applicant with respect to SOR ¶ 2.b. During his follow-up interview on April 10, 2007, Applicant discussed the arrests which are alleged in SOR ¶¶ 1.b, 1.h, 1.m, and 1.n. The unsigned, unsworn report of the interview indicates that Applicant said that he had no other arrests. Applicant testified that he did not recall all of his arrests during the interview. He did not have a complete copy of his arrest report with him during the interview. Applicant’s explanation that he had a faulty memory is credible based upon my observations of him during the hearing. He has an arrest history going back 33 years. Applicant provided information about his previous arrests in past security clearance background investigations. He listed the arrests alleged in SOR ¶¶ 1.a and 1.n on his most recent security clearance application dated January 5, 2006. In a signed, sworn statement dated January 30, 1996, he listed the arrests alleged in SOR ¶¶ 1.c, 1.d, 1.e, 1.f, 1.g, 1.h and 1.j. On his November 15, 1994, security clearance application, he listed the arrests alleged in SOR ¶¶ 1.c, 1.d, 1.e, 1.f, 1.g, 1.n, and 1.o. The government was on notice about his past criminal history. Applicant’s frank disclosures in past security clearance applications pertaining to his criminal history, supports the conclusion that Applicant had no deliberate intent to withhold information about his criminal arrest history during his March 21, 2007 and April 10, 2007 interviews. I find for Applicant with respect to SOR ¶¶ 2.b and 2.c. It is alleged Applicant used numerous aliases. Applicant’s explanation that Gumby was his nickname and the other name was his mother’s maiden name is reasonable. SOR ¶ 1.e is found for Applicant. The personal conduct concern may be mitigated. PC MC ¶ 17(c ) (the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment) applies with respect to Applicant’s deliberate omission of his past marijuana use on personnel security questionnaire completed in the mid 1990s. (SOR ¶ 2.d.) Applicant listed a 1974 arrest for possession of marijuana on the same security clearance questionnaire. This 10 provided the government sufficient notice that Applicant was involved with marijuana. Although Applicant admitted that he did not disclose his past marijuana use, the use occurred 20 years prior to completing the security application. He would not be required to list it under the current format of the security clearance application. It is also noted that the government granted Applicant access to classified information despite his admission in the 1996 signed, sworn statement. The admission is less significant today considering the passage of time. Applicant has mitigated the concerns raised under personal conduct. Whole Person Concept Under the whole person concept, the Administrative Judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the circumstances. The Administrative Judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): “(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) extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent 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.” Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall common sense judgment based upon careful consideration of the guidelines and the whole person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I considered Applicant’s favorable work history and his clean criminal record for close to five years. While Applicant has an extensive arrest record, most of the arrests involved family arguments. He has not been arrested since 2003. Since that time, he is making a positive contribution in the workplace. He has deployed to Iraq three times and to Afghanistan once. His explanation for not listing and/or remembering several of his past arrests are credible. He disclosed most of the arrests in past security investigations. Overall, the record evidence leaves me with no doubt as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising under criminal conduct, and personal conduct. 11 Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 2, 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 Subparagraph 1.f: For Applicant Subparagraph 1.g: For Applicant Subparagraph 1.h: For Applicant Subparagraph 1.i: For Applicant Subparagraph 1.j: For Applicant Subparagraph 1.k: For Applicant Subparagraph 1.l: For Applicant Subparagraph 1.m: For Applicant Subparagraph 1.n: For Applicant Paragraph 3, Guideline E: 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 Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. _________________ ERIN C. HOGAN Administrative Judge