1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ---------------- ) ISCR Case No. 09-05399 SSN: ----------- ) ) Applicant for Security Clearance ) Appearances For Government: Francisco Mendez, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ MARSHALL, Jr., Arthur E., Administrative Judge: On July 9, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) enumerating security concerns arising under Guideline J (Criminal Conduct), Guideline K (Handling Protected Information), Guideline H (Drug Involvement), and Guideline E (Personal Conduct). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DOD on September 1, 2006. In a July 19, 2010, response, Applicant admitted 13 of the 14 allegations raised under Guideline J; admitted the sole allegation under Guideline K; admitted the two allegations raised under Guideline H; and fully admitted four of the seven allegations raised under Guideline E. He also requested a hearing. DOHA assigned the case to me on September 10, 2010. The parties proposed a hearing date of September 30, 2010. A notice setting that date for the hearing was issued on September 20, 2010. I convened the hearing as scheduled. Applicant gave testimony and presented three documents, which were admitted without objection as exhibits (Exs.) A-C. Department Tr. 61-63. The referenced Appeal Board decision was a redacted copy of ISCR Case No. 05-03554 (App. 1 Bd. Aug. 23, 2007). In that case, the Appeal Board found that where “Department Counsel has introduced evidence of a positive drug test coupled with [an applicant’s] prior admissions of willful and voluntary drug use on numerous occasions, [an applicant] bears the burden of persuasion when attempting to demonstrate that he did not use drugs and that the positive drug test resulted from a single, supposedly involuntary incident.” See Ex. 10, Memorandum, dated Sep. 30, 2010. In submitting his response, it appears Applicant was under the impression the Appeal Board decision 2 concerned his case. It did not. It was requested by me to illustrate points raised by the Government in its closing argument and to help provide Applicant with precedent on certain issues. Applicant also depicted the record’s inclusion of a document referencing a positive drug test as new evidence. That document, Ex. 9 (Commander’s Report of Disciplinary or Administrative Action, dated Oct. 3, 2005), was presented at the outset of the hearing. Applicant testified that he had reviewed the Government’s nine proffered documents and stated he had no objection to those documents at that time. Tr. 16-17. See Ex. 1 (Security Clearance Application, dated Mar. 6, 2009). Compare Tr. 36-39. 3 Tr. 40. 4 Id. 5 Answer to the SOR, dated Jul. 19, 2010. 6 2 Counsel offered nine documents, which were admitted as exhibits (Exs.) 1-9 without objection. Following the hearing, Department Counsel submitted a copy of an Appeal Board decision that I requested during the hearing. The transcript (Tr.) of the1 proceeding was received on October 7, 2010. On October 28, 2010, Department Counsel forwarded Appellant’s response and comments regarding that decision, noting no objection to its inclusion in the record. I accepted Department Counsel’s post-2 hearing submission and Applicant’s response as Ex. 10 and Ex. D, respectively. The record was then closed. Based on a thorough review of the testimony, submissions, and exhibits, I find Applicant failed to meet his burden of mitigating security concerns related to the four guidelines raised. Clearance denied. Findings of Fact Applicant is a 48-year-old field service technician who has worked for the same defense contractor since 2007. He has received a post-secondary degree in communication maintenance through the Army National Guard, in which he served from 1984 through 2004, as well as various professional certifications. Applicant also served in the Army Reserves from 2004 through 2007. He is divorced and has no children. He3 hopes to continue serving the United States, particularly in areas of conflict. Applicant first started using marijuana in high school. For the next several years his marijuana use was “steady.” He tapered his drug use when he first entered the4 military in the 1980s. Applicant knew his use of marijuana was proscribed, but continued to use it “once in a blue moon.” 5 In February 1992, Applicant was arrested and charged with Assault, a misdemeanor. Applicant indicated that the charge was dropped, but provided no evidence to that effect. In May 1995, he was arrested and charged with Obscene6 Tr. 37. 7 Tr. 41. 8 Tr. 42. 9 Tr. 42-43. 10 Tr. 32. 11 Tr. 40-41, 43. Applicant testified that he ceased all illegal drug use in about 2000. Since that time, he has 12 only purchased them. Tr. 47. Tr. 43-44. 13 Tr. 44-45. 14 Tr. 44-45. 15 3 Phone Calls, a misdemeanor. In June 1995, he was charged with Failure to Appear, a misdemeanor, but that charge was later dismissed. In September 1995, Applicant was arrested and charged with False Statement to the [State] Employment Office, a misdemeanor, and later was convicted of the charge. In December 1995, he was arrested and charged with Harassing Phone Call, a misdemeanor, and convicted of the offense. In May 1997, he was arrested and charged with Stalking, a misdemeanor, and found guilty of the charge. In November 1998, he was arrested and charged with Profane Threatening Language Over Public Airways and Stalking (3 degree), a felony,rd but those charges were ultimately dismissed. Throughout the 1990s, Applicant used marijuana “off and on every once in a while.” In the 1990s, he began using cocaine to better understand why his wife, whom7 he married in 1989 and who had become “hooked” on cocaine, behaved as she did. At8 its worst, Applicant began using cocaine about once a month. He often acquired9 cocaine for his wife, following her instructions as to where the drug could be obtained.10 His wife came from a family of drug dealers, so drugs were usually available. Any time he spent with his in-laws “was in a bad atmosphere.” His wife died of AIDS in 1998,11 shortly after they divorced. Applicant does not recall when he quit using marijuana, but he ultimately quit using cocaine in around 2000. This was around the time he was12 trying to find out where his estranged wife had been buried by her family. To discover this information, he visited her family. He used cocaine with them in order to show them that he was not a police officer. 13 In about March 2003, Applicant tested positive for cocaine while serving in the military. Applicant testified that this occurred due to his passive exposure to the drug.14 He intimated at the hearing that the military dismissed any charges against him because there had been no drug test about the incident, only his own admission that he had been around the drug. He provided no documentary evidence to rebut evidence15 showing that a military determination had been made charging him with Wrongful Use Ex. 9 (Commander’s Report of Disciplinary or Administrative Action, dated Oct. 3, 2005); Tr. 44-45. 16 Id. 17 Applicant notes that he did not spend 180 days in jail. See Answer to the SOR, dated Jul. 19, 2010. 18 Tr. 45-46. 19 Tr. 46. 20 Tr. 48. 21 Tr. 36, 49. 22 Tr. 49. 23 4 of Cocaine after failing a urinalysis. That evidence explains that no action was taken16 because “Commander and Soldier both PCS’d without taking action on the case.”17 In January 2004, Applicant was arrested and charged with Attempted Possession of Marijuana. In March 2004, he pled guilty to a lesser charge and was sentenced to 180 days in jail, community service, and one year of probation. Applicant18 explained that while he did buy marijuana at the time, he did not necessarily intend to use it personally. He was purchasing it for a prostitute he had hired who “wanted19 some” of the drug.20 In April 2006, Applicant was arrested and charged with False Summons or False Report to the Police, a misdemeanor. He was found guilty of the charge and sentenced to 60 days in jail, with 56 days suspended. Several months later, while negotiating the services of a prostitute in August 2006, Applicant was told her services could be acquired for money and cocaine. He purchased cocaine for her. As a result, he was arrested and charged with Possession of a Controlled Substance (Cocaine), a felony. On January 25, 2008, having complied with conditions imposed for a deferred judgment, the charge was dismissed. Applicant was ordered to pay court costs of $986 and his driver’s license was suspended for six months. In September 2006, he was found in Contempt of Court, a misdemeanor, and fined $50. Applicant admits that he has hired prostitutes, at least in part, by buying them drugs. The last time he did so was at the end of 2008 or in early 2009. On that21 22 occasion, he gave the prostitute the money for drugs and drove her to her choice of acquisition sites. The drugs he funded were for her use only.23 Applicant completed a security clearance application (SCA) in August 2007 and March 2009. He admitted that he falsified material facts on his March 2009 SCA when he failed to identify his 2006 charge for cocaine possession and his 2004 charge for attempted marijuana possession in response to Section 22, concerning his police record. Also with regard to Section 22, Applicant failed to provide information regarding felony arrests from 2006 and 1998, or information regarding charges for cocaine possession or attempted marijuana possession in 2006 and 2004, respectively. In Tr. 50. 24 Tr. 51. 25 See Tr. 58-59. 26 Tr. 54. 27 Tr. 56. Applicant also noted that he was nervous and wanted a top secret security clearance when he 28 answered the SCA question regarding past drug use. He conceded that his attempt was “wrong.” Tr. 58-59. 5 explanation, Applicant stated that he had forgotten the facts when he completed his 2009 SCA, and he assumed charges that were dismissed would not be on his record.24 He believes his lapses may have been caused by post-traumatic stress disorder (PTSD). While he has received medical attention in the past two years, he has not received a diagnosis for PTSD, nor did he submit evidence he might suffer from PTSD. 25 Applicant also admitted that he falsified material facts on his August 2007 SCA when he failed to completely detail his history of felony charges and drug/alcohol charges in response to Section 23, concerning his police record as to his drug use. On that same 2007 SCA, in response to Section 24, use of drug activity and drug use, he did not note his past experiences with cocaine or fully document his past marijuana use. In explanation, Applicant testified that he thought some of these charges had26 been expunged, but he provided no evidence suggesting that expungement could be anticipated. With regard to his past drug use, Applicant admitted that he was “trying to27 lie” on the SCA.28 In an interrogatory, dated October 8, 2009, Applicant stated that he presently had classified information (ie. technical manuals) in his possession, despite the fact he had his security clearance withdrawn in March 9, 2009. Policies When evaluating an applicant’s suitability for a security clearance, an administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions. 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 overarching adjudicative goal is a fair, impartial, and commonsense decision. Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables known as the “whole- person concept.” The administrative judge must consider all 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 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995). 29 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). 30 Id. 31 Id. 32 6 decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. The Government must present evidence to establish controverted facts alleged in the SOR. An 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 burden of proof is something less than a29 preponderance of evidence. The ultimate burden of persuasion is on the applicant. 30 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. 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). “The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.” Any reasonable doubt about whether an applicant should be allowed access31 to sensitive information must be resolved in favor of protecting such sensitive information.32 Based upon consideration of the evidence, Guideline E (Personal Conduct) and Guideline H (Drug Involvement) are the most pertinent to this case. Conditions pertaining to these AGs that could raise a security concern and may be disqualifying, as well as those which would mitigate such concerns, are set forth and discussed below. Analysis Guideline J – Criminal Conduct The concern under this guideline is that “criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into AG ¶ 30. 33 AG ¶ 33. 34 7 question a person’s ability or willingness to comply with laws, rules, and regulations.”33 In this case, Applicant admitted to several instances in which he was arrested and charged for misdemeanor and/or felony charges, more than one of which resulted in convictions. Moreover, Applicant freely admitted that he repeatedly acquired the services of prostitutes in exchange for cash and the acquisition of illegal drugs. Such facts are sufficient to raise both Criminal Conduct Disqualifying Condition AG ¶ 31(a) (a single serious crime or multiple lesser offenses) and AG ¶ 31(c) (allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted). Consequently, it is Applicant’s burden to mitigate the security concerns raised. Since 2000, Applicant has tested positive for cocaine (2003); pled guilty to a lesser charge, was sentenced to jail time, and placed on probation after being arrested and charged with attempted possession of marijuana (2004); found guilty of false summons or false report to the police (2006); penalized for possession of cocaine (2006); and found guilty of contempt of court (2006). He has admitted that he has secured the services of prostitutes with payments of cash complemented with the acquisition of illegal drugs. Such drugs-for-sex activities continued up to at least the end of 2008 or early 2009. Consequently, his criminal conduct is recent, obviating application of AG ¶ 32(a) (so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment). No evidence was presented that would raise any of the remaining Criminal Conduct Mitigating Conditions. Consequently, Guideline J security concerns remain unmitigated. Guideline K – Handling Protected Information The concern under this guideline is that the deliberate or negligent failure to comply with rules and regulations for protecting classified or other sensitive information raises doubt about an individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard information, and poses a “serious security concern.” Here,34 Applicant admitted that he kept classified information in his possession after his security clearance was withdrawn in March 2009, raising AG ¶ 34(b) (collecting or storing classified or other protected information at home or in any other unauthorized location) and AG ¶ 34(g) (any failure to comply with rules for the protection of classified or other sensitive information). Therefore, the burden is shifted to Applicant to mitigate related security concerns. In his response to the SOR, Applicant admitted without equivocation that he maintained possession of classified information after his security clearance was withdrawn. At the hearing, he failed to adequately explore the circumstances as to why or how these materials were still in his possession. He also failed to address and substantiate any efforts to secure and convey such materials to approved authorities, or AG ¶ 24. 35 Id. at ¶ 24(a)(1-2). 36 Id. at ¶ 24(b). 37 8 otherwise demonstrate efforts to mitigate the security concerns raised. Moreover, Applicant failed to provide any evidence that might have raised AG ¶ 35(c) (the security violations were due to improper or inadequate training). Given these facts, none of the Guideline K mitigating conditions apply. Serious security concerns remain unaddressed and unmitigated. Guideline H - Drug Involvement Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. “Drugs” are defined as mood and behavior altering substances,35 and include drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended, (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens) and inhalants and other substances. “Drug abuse” is the illegal use of a drug or use of a legal drug in a36 manner that deviates from approved medical direction. 37 Applicant admitted he used marijuana and cocaine at least until about 2000. He tested positive for cocaine in 2003. He has also admitted that since 2000, he has purchased, possessed, and/or funded the purchase or distribution of illegal drugs, up to, at least, late 2008 or early 2009. Such facts are sufficient to raise Drug Involvement Disqualifying Condition AG ¶ 25 (a) (any drug abuse); AG ¶ 25(b) (testing positive for illegal drug use); and AG ¶ 25 (c) (illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia). With disqualifying conditions raised, the burden shifts to Applicant to mitigate related security concerns. Since giving up illegal drugs in the early 2000s, Applicant has continued to place himself in situations in which illegal drugs were used or sold. He used illegal drugs to convince his in-laws he was not a police officer. He was directly or indirectly impacted by smoked cocaine so as to fail a drug test in 2003. He was caught in possession of cocaine in 2006. As recently as the end of 2008 or early 2009, he funded the purchase of illegal drugs to retain prostitutes. He has done this on multiple occasions in the past. Guideline H clearly does not restrict consideration of drug involvement to personal consumption. Therefore, such facts obviate application of Drug Involvement Mitigating Condition AG ¶ 26 (a) (the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment). Applicant admits that up until the end of 2008 or early 2009, he continued to fund the purchase of, and help acquire, illegal drugs for the purpose of retaining drug-using AG ¶ 15. 38 Id. 39 9 prostitutes. Such recent activity obviates application of AG ¶ 26 (b)(1) (disassociation from drug-using associates and contacts) and AG ¶ 26 (b)(2) (changing or avoiding the environment where drugs were used). While Applicant may have personally stopped using illegal drugs in about 2000, his continued interaction with drug users and his acquisition of drugs fail to give rise to AG ¶ 16 (b) (3) (an appropriate period of abstinence). Further, he did not submit a signed statement of intent sufficient to raise AG ¶ 26 (b) (4) (a signed statement of intent with automatic revocation of clearance for any violation). Even though Applicant may have personally quit using illegal drugs, he continued to aid in their purchase for the purposes of retaining prostitutes. Such behavior shows a flagrant disregard of the law with regard to illegal drugs. Applicant provided scant evidence that would mitigate security concerns. Drug Involvement security concerns remain unmitigated. Guideline E – Personal Conduct Security concerns arise from matters of personal conduct because “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.“ In addition, “any failure to38 provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process” is of special interest. 39 Here, personal conduct concerns were raised when Applicant admitted that he falsified material facts on his March 2009 SCA when he failed to identify his 2006 charge for cocaine possession and his 2004 charge for attempted marijuana possession in response to Section 22, concerning his police record. In response to that same section, he similarly failed to provide information regarding felony arrests from 2006 and 1998, or information regarding charges for drug possession/attempted possession in 2006 and 2004. Applicant also admitted that he falsified material facts on his August 2007 SCA when he failed to completely detail his history of felony charges and drug/alcohol charges in response to Section 23, concerning his police record. He similarly failed to fully document his past experiences with drugs in response to Section 24, use of drug activity and drug use. At the hearing, he acknowledged that he did so deliberately, in the hopes of gaining a top secret security clearance. Applicant’s admissions are sufficient to raise Personal Conduct Disqualifying Condition AG ¶ 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). Consequently, the burden shifts to Applicant to mitigate the resultant security concerns. W hile not alleged in the SOR, Applicant’s acquisition of illegal drugs for prostitution services, as described 40 above, are sufficient to give rise to AG ¶ 16(g) (association with persons involved in criminal activity). 10 Applicant provided no evidence that would give rise to any of the available Personal Conduct Mitigating Conditions. At best, his candor at the hearing could give some limited effect to AG ¶ 17(e) (the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress). Given these facts and Applicant’s admissions, however, personal conduct security concerns remain unmitigated. Whole-Person Concept Under the whole-person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of an applicant’s conduct and all the circumstances. An 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) the 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 a security clearance must be an overall commonsense 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, as well as the “whole-person” factors. Applicant is a mature man with many years of service to his country. It is his expressed desire to continue that service. He is currently single and has no children, conditions he stresses make him a suitable candidate for service in places of conflict. During the hearing, he gave credible testimony. Despite Applicant’s eagerness to serve his country further, serious security concerns remain. Aside from his multiple arrests, charges, and convictions, Applicant continued procuring sexual services from prostitutes in exchange for money and illegal drugs. Such activities continued until at least the end of 2008 or early 2009, sustaining criminal conduct and drug involvement security concerns. He provided scant40 information as to why he retained classified information after his security clearance was withdrawn in March 2009, or what he eventually did with that information. This evidentiary failure leaves handling protected information security concerns unmitigated. He also admitted to multiple omissions on his 2007 and 2009 SCAs, including at least one omission he concedes was done to conceal the extent of his past drug use. Such 11 admissions, in tandem with his continued involvement with prostitutes and drug suppliers, sustain personal conduct security concerns. The burden in these cases is placed squarely on the applicant. In this case, Applicant failed to provide sufficient information and evidence mitigating the security concerns raised under Guidelines J, K, H, and E. Security concerns under Guideline K are particularly serious. That guideline clearly recognizes that the protection of the national security is the paramount consideration in these cases. AG ¶ 2(b) requires that any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security. I have fully considered these factors. Clearance is denied. 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 1, Guideline J: AGAINST APPLICANT Subparagraphs 1.a-1.n: Against Applicant Paragraph 2, Guideline K: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Paragraph 3, Guideline H: AGAINST APPLICANT Subparagraphs 3.a-b: Against Applicant Paragraph 4, Guideline E: AGAINST APPLICANT Subparagraphs 4.a-4g: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national interest to grant Applicant a security clearance. Clearance denied. ARTHUR E. MARSHALL, JR. Administrative Judge