DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 08-06954 ) ) Applicant for Security Clearance ) Appearances For Government: Francisco Mendez, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant failed to mitigate the Government’s security concerns under Guideline I, Psychological Conditions and Guideline E, Personal Conduct. Applicant’s eligibility for a security clearance is denied. On March 15, 2010, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline I. On October 26, 2010, DOHA amended the SOR detailing additional security concerns under Guideline I and Guideline E. 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 adjudicative guidelines (AG) effective within the Department of Defense on September 1, 2006. Applicant answered the original SOR on April 2, 2010, and the amended SOR on November 4, 2010. He requested a hearing before an administrative judge. The case 1 2 was assigned to me on November 19, 2010. DOHA issued a Notice of Hearing on December 13, 2010. I convened the hearing as scheduled on January 12, 2011. The Government offered Exhibits (GE) 1 through 16. Applicant did not object and they were admitted. The Government also offered demonstrative exhibits that were marked as Hearing Exhibit I and II. Applicant and one witness testified on his behalf. He offered Exhibits (AE) A through D, which were admitted without objections. He also offered Hearing Exhibit III for consideration. DOHA received the hearing transcript (Tr.) on January 19, 2011. Findings of Fact Applicant admitted the allegations in SOR ¶¶ 1.a through 1.d, and 1.f through 1.h. He denied the allegations in SOR ¶¶ 1.e and 2.a. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 36 years old and has worked for a federal contractor since 2007. He served in the Army from 1993 through 1997, and received an Honorable Discharge. He has been married and divorced three times. He has three children, ages 16, 10, and 4. Applicant earned a bachelor’s degree in 2007, and is working towards earning a master’s degree.1 In 1999, Applicant had his first manic episode. In March 2006, he was hospitalized after he attempted suicide during a manic episode. He drove his car approximately 120 miles per hour head on into another vehicle in traffic. He was hospitalized in a mental health ward for approximately five days. Sometime later that month he was diagnosed by Dr. B, a clinical psychologist, with bipolar disorder, and serious depression, chronic in nature. Dr. B, when questioned by an Office of Personnel (OPM) investigator, “responded affirmatively when asked whether [Applicant’s] condition could impair his judgment or reliability.” He explained to the OPM investigator that bipolar disorder generally is considered a serious, chronic condition that has to be controlled with medication.”2 When Applicant was released from the hospital, he was told to follow up his treatment in a mental health program. He was given an appointment for a mental health program. He was given discharge information and a note to provide to his employer that he should be excused from work for two weeks. Applicant did not follow-up. Applicant testified that he did not recall the hospital recommending he go to mental health treatment. He stated he did not enter a program because he had other priorities at the time, such as his children and his job.3 1 Tr. 89-93-95. 2 Tr. 29, 39-46; GE 1, 7. 3 Tr. 39-46; GE 7. 3 Applicant testified that he was treated by Dr. B from approximately March 2006 to May 2006. In the results of interview of Dr. B by the OPM investigator, he stated he had only seen Applicant one time for short duration.4 In July 2006, Applicant was hospitalized due in part to his bipolar disorder. Applicant stated he did not recall the specific problems he was having at the time, but remembered he lost his zeal for life, was depressed, and had difficulty focusing. The hospital discharge summary stated: Applicant was suicidal with thoughts of drowning himself; his girlfriend told doctors and medical staff that he voiced suicidal thoughts more than once, and he has stopped taking his medication.5 He signed himself out of the hospital against medical advice for further inpatient psychiatric treatment. He stated he did this because he feared he would lose his job. He did not recall the name of the doctor he saw. He does not recall how often he sought mental health counseling. Applicant did not seek mental health treatment again until July 2007.6 In July 2007, Applicant sought treatment at a hospital and started therapy. He did not start therapy before then because he had other priorities in his life. He did not feel like medication would help him. He was focused on his job and taking care of his family. He stated he started therapy after he completed his security clearance application on July 27, 2007.7 In October 2007, Applicant was evaluated by Dr. C and diagnosed with bipolar disorder, nonspecific NOS, and prescribed medication. He recalled telling Dr. C that he was concerned that his security clearance might be denied due to his mental health. The results of interview of Dr. C by OPM on October 24, 2007 stated: “[Applicant] is stable and on medication. [Applicant] is not having mood swings now. [Applicant] is on medication now and intends to continue treatment. His prognosis is good if he stays on his medication and continues treatment.”8 In response to interrogatories requesting if Dr. C had any additional information to provide he stated: When I said he has a condition that “could” impair his judgment, I meant that if he did not follow up with treatment recommendations his symptoms could recur. As long as he continues follow-up [and] treatment (until his psychiatrist says it’s no longer necessary) the prognosis is good [and] he can be expected to function in a stable, productive way.9 Applicant stated he believed he was counseled by Dr. C once a month from July 2007 to December 2007. 4 GE 9. 5 GE 6, 7. 6 Tr 46-54. 7 Tr. 50-62. 8 Tr. 62-64; GE 10. 9 GE 10. 4 Dr. F provided a statement to the OPM investigator. He noted that Applicant first sought treatment in 2006, and had been diagnosed with bipolar disorder. Applicant was referred to him from the hospital, but Dr. F had only one appointment with him in December 2007. Applicant came to Dr. F’s office for medication, which was prescribed. No other treatment was provided by Dr. F, and he was uncertain if Applicant was attending individual therapy at the time. Dr. F stated that Applicant had a history of noncompliance and had canceled appointments with him. He had tried several medications; but Applicant did not always take his medications. He opined that there was a very high potential for Applicant’s bipolar disorder to impair his judgment and reliability and his prognosis was guarded.10 Applicant admitted that on about November 1, 2007, he told a licensed clinical social worker at a hospital that he wanted a “quick fix” to his mental health problem and he was unsure of the need for individual therapy. Applicant explained that at times he felt really bad on the medication that was prescribed to him, and he was told it would make him feel worse before he felt better. He found it difficult to deal with because he had a family, a job, and children to support.11 Applicant began seeing Dr. D in 2008. He believes he saw him about two to three times that year. Applicant could not recall the specific periods of time he saw different doctors. He was not receiving any other therapy, other than the two to three visits with Dr. D in 2008. Dr. D provided a statement in June 2008. It stated: [Applicant] does have major affective disorder (bipolar). He has been hospitalized [three] times. The first stay was October 2006. He is now stabilized for a year in outpatient treatment. He is compliant on only one medication and has an excellent prognosis.12 Applicant stated that he stopped taking his medications in June 2008, when the prescription ran out. He did not attempt to have it refilled. He stopped taking the medications about the same time Dr. D provided the above statement. Applicant was not told to stop taking his medication by Dr. D. He testified that he stopped taking it because he decided he did not need it any longer. Dr. D did not make a determination that Applicant no longer needed medication.13 In September 2008, Applicant was directed by DOHA to be examined by a psychiatric consultant for the Department of Defense.14 On October 4, 2008, Dr. G, a 10 GE 11. 11 Tr. 29-30. 12 GE 8. 13 Tr. 65-79. 14 AE 13. 5 board certified psychiatrist interviewed Applicant and reviewed his medical record.15 He stated: In my professional opinion there is evidence of [an] emotional, mental, personality disorder which I diagnose as Bipolar Disorder Type I. It is of continuing nature. It is not now causing significant defect in judgment or reliability. It may cause such defect in the future. It is not causing significant defect in psychological, social, or occupational functioning. It may cause such defect in the future. The illness is in remission at this time. The probability of recurrence is moderate.16 Applicant saw Dr. E, a psychiatrist on May 3, 2010, to obtain another opinion. Applicant wanted to see him in anticipation of issues raised regarding him obtaining a security clearance. He had not been treated by Dr. E previously. Applicant believed his appointment was about an hour long and Dr. E reviewed his medical records and interviewed him. Dr. E stated: Although it is typical for patients with Bipolar Disorder to have frequent relapses, especially if not taking psychoactive medications. [Applicant] has not demonstrated any symptoms of relapse since December 2007. He continued without symptoms since June 2008, when all psychoactive medications were discontinued. This clinical course would argue against Bipolar Disorder. It is possible that [Applicant] had a Brief Psychotic Episode or Major Depressive Disorder with Psychotic Features. Regardless of the exact diagnosis, [Applicant] has not been symptomatic for greater than 2 years, 23 months of those 2 years, thus far, off medication. [Applicant’s] reliability and judgment appear to intact and sound.17 Applicant returned to see Dr. E on December 13, 2010, in anticipation of his security clearance hearing. Applicant stated their appointment was about 15 minutes long. Applicant had not had any appointments or therapy since meeting with him in May 2010, for an evaluation. Dr. E provided the following statement: This is an update to my memo of May 3, 2010. I saw [Applicant] for a follow up appointment tonight. He remains without any signs or symptoms of Bipolar Disorder. I continue to support his pursuit of a security clearance.18 15 Tr. 87-89. 16 GE 14. 17 Tr. 67-69, 93-95; GE 15. 18 AE C. 6 Applicant stated that he decided that after he received “talk” therapy with Dr. D and Dr. E, another psychiatrist, he had addressed his underlying psychological issues. He concluded the “talk” therapy helped and he did not need any further therapy.19 When asked directly if Applicant believed he had a bipolar disorder, he stated he did not. He confirmed that he does not take medication because he does not believe he needs them. He concurred that three doctors have diagnosed him with bipolar disorder.20 Bipolar disorder is also known as a manic-depressive illness. It is a brain disorder that causes shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks. Symptoms are severe, but can be treated. It is a long-term illness that must be carefully managed throughout a person’s life. There is no cure for bipolar disorder.21 Because bipolar disorder is a lifelong and recurrent illness, people with the disorder need long-term treatment to maintain control of bipolar symptoms. An effective maintenance treatment plan includes medication and psychotherapy for preventing relapse and reducing symptom severity.22 Applicant completed his security clearance application on July 26, 2007. In response to section 21 which asked if he had in the last seven years consulted with a mental health professional or another health care provider about a mental health related condition, Applicant answered “yes.” Applicant listed he had been treated by Dr. B from July 2006 to August 2006. He failed to fully disclose the extent of his mental health issues, including his inpatient and outpatient treatment for bipolar disorder, his suicidal episode and hospitalization in March 2006, his July 2006 hospitalization, his August 2006 mental health assessment at a hospital, and his February 2007 outpatient treatment for bipolar disorder. Applicant denied he deliberately failed to disclose his prior mental health problems. He stated he completed the SCA to the best of his ability, and because he did not have supporting documents regarding his mental health problems, it was his best effort, and he answered it the best he could. He denied he failed to disclose the information because it might affect his ability to obtain a security clearance. I find Applicant’s testimony was not credible and he deliberately failed to disclose all of his mental health concerns.23 19 Tr. 80-81. 20 Tr. 86-89. 21 National Institute of Mental Health, U.S. Department of Health and Human Services, National Institute of Health: Bipolar Disorder Brochure. 22 Id. 23 Tr. 30-36, 39-50, 85-87. 7 Applicant’s supervisor testified on his behalf. Applicant has worked for him since 2007. He considers him ambitious, trustworthy, even-tempered, pleasant to work with, and an asset to the team. He has never been concerned about Applicant’s conduct. Applicant consistently performs above average and has high standards for his technical skills. He is considered a valuable, important employee.24 Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used 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 overarching adjudicative goal is a fair, impartial, and commonsense 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, 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 and has the ultimate burden of persuasion to obtain 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 safeguard classified information. Such decisions entail a certain degree of legally permissible 24 Tr. 99-105. 8 extrapolation of 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). Analysis Guideline I: Psychological Conditions The security concern for Psychological Conditions is set out in AG & 27: Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline. No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling. The guideline notes several conditions that could raise security concerns. I have considered all of the disqualifying conditions under AG & 28 and the following are potentially applicable: (a) behavior that casts doubt on an individual’s judgment, reliability, or trustworthiness that is not covered under any other guideline, including but not limited to emotionally unstable, irresponsible, dysfunctional, violent, paranoid, or bizarre behavior; (b) an opinion by a duly qualified mental health professional that the individual has a condition not covered under any other guideline that may impair judgment, reliability, or trustworthiness; and (c) the individual has failed to follow treatment advice related to a diagnosed emotional, mental, or personality condition, e.g., failure to take prescribed medication. In March 2006, Applicant attempted suicide during a manic episode by driving his car at 120 miles per hour into two other vehicles in traffic, resulting in his hospitalization. He was diagnosed with bipolar disorder and serious depression, chronic in nature. He needed medication to control these issues. Applicant was released from the hospital and was told to follow up his treatment in a mental health program. He was given an 9 appointment for a mental health program. He was given discharge information and a note to provide to his employer that he should be excused from work for two weeks. Applicant did not follow-up. He stated he did not enter a program because he had other priorities at the time, such as his children and his job. I find AG ¶ 28(a) applies In July 2006, Applicant was suicidal with thoughts of drowning himself; his girlfriend told doctors and medical staff that he voiced suicidal thoughts more than once and has stopped taking his medication. He signed himself out of the hospital against medical advice for further inpatient psychiatric treatment. He does not recall how often he sought mental health counseling. Applicant did not seek mental health treatment again until July 2007. In July 2007, Applicant sought treatment at a hospital and started therapy. He stated he did this after he completed his security clearance application on July 27, 2007. In October 2007, Applicant was evaluated by Dr. C and diagnosed with bipolar disorder, Nonspecific NOS, and prescribed medication. Dr. C considered Applicant stable. He indicated that Applicant was on medication at the time and that he intended to continue treatment. His prognosis was good if he stayed on his medication and continued his treatment. He further indicated that Applicant has a condition that could impair his judgment, and if he did not follow up with treatment recommendations his symptoms could recur. However, as long as he continued to follow-up with treatment, until his psychiatrist says it is no longer necessary, the prognosis was good and he could be expected to function in a stable, productive way. Applicant saw Dr. C once a month from July 2007 to December 2007. Applicant saw Dr. F one time in December 2007. He failed to keep subsequent appointments, has a history of noncompliance and would not take his medication as prescribed. He saw Dr. D two or three times in 2008. He was again diagnosed with bipolar disorder and appeared to be stabilized while he was taking the prescribed medication. Applicant stopped taking the medication shortly after seeing Dr. D because Applicant determined he no longer needed it. In September 2008, he was again diagnosed with bipolar disorder of a continuing nature that was in remissionby Dr. G. Applicant sought another diagnosis from Dr. E, who determined it is possible that Applicant had a brief psychotic episode or major depressive disorder with psychotic features. Applicant has been diagnosed with bipolar disorder by different psychiatrists. It is not always clear that each successive doctor that has seen or treated Applicant has necessarily been aware of what treatment plan was previously prescribed, his full psychiatric history, and what medications he was directed to take. What is clear is that Applicant has repeatedly failed to follow his doctor’s advice. He decided he no longer needed medication so he stopped taking his medication contrary to his doctor’s orders. He does not believe he has bipolar disorder, despite numerous diagnoses. I find AG ¶¶ 28(b) and 28(c) apply. 10 I have considered all of the mitigating conditions under AG & 29 and the following are potentially applicable: (a) the identified condition is readily controllable with treatment, and the individual has demonstrated ongoing and consistent compliance with the treatment plan; (b) the individual has voluntarily entered a counseling or treatment program for a condition that is amendable to treatment, and the individual is currently receiving counseling or treatment with a favorable prognosis by a duly qualified mental health professional; (c) recent opinion by a duly qualified mental health professional employed by or acceptable to and approved by the U.S. Government that the individual’s previous condition is under control or in remission, and has a low probability of recurrence or exacerbation; (d) the past emotional instability was a temporary condition (e.g., one caused by death, illness, or marital breakup), the situation has been resolved, and the individual no longer shows indications of emotional instability; and (e) there is no indication of a current problem. Applicant has been consistently diagnosed with a bipolar disorder since 2006 by multiple psychiatrists. A U.S. Government approved psychiatrist made the diagnosis in September 2008. He determined the condition was in remission, but the probability of recurrence was moderate. Although bipolar disorder is treatable Applicant has failed to demonstrate ongoing and consistent compliance with a treatment. He has periodically volunteered for mental health counseling and treatment, but has an inconsistent track record in attending treatment, keeping appointments, and taking prescribed medication. He decided to stop taking prescribed medications because he does not think he needs them and does not concur with the diagnoses of several psychiatrists. Therefore, I find AG ¶¶ 29(a), 29(b), and 29(c) do not apply. There is no evidence to support application of AG ¶¶ 29(d) or 29(e). Guideline E, Personal Conduct AG ¶ 15 expresses the security concern pertaining to personal conduct; 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. 11 AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. I have specifically considered: (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 intentionally and deliberately failed to disclose all of his hospitalizations and consultations with mental health professionals on his July 26, 2007 SCA. He deliberately attempted to mislead the Government as to the full extent of his mental health issues, by listing he had only seen one doctor from July 2006 to August 2006, when in fact he had seen several doctors about his condition, had been prescribed medication, and had been treated at other mental health facilities. His explanation for why he did not disclose all of his mental health issues was not credible. I find the above disqualifying condition applies. The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered the following mitigating conditions under AG ¶ 17: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; (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; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. 12 There is no evidence that Applicant made prompt, good-faith efforts to correct his omission. There is no evidence Applicant’s concealment and omission was caused or contributed to by improper or inadequate advice. The concealment and omission is serious because Applicant attempted to hide important facts about his mental health. There is evidence he was concerned how his diagnosis would affect his ability to obtain a security clearance. Applicant disputes his diagnosis, has failed to follow his doctor’s treatment plan, and has failed to be honest about his mental health issues. I find none of the above mitigating conditions apply. 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) 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 eligibility for 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. I have incorporated my comments under Guideline I and E, in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment. Applicant was diagnosed with bipolar disorder in 2006 after a suicide attempt. He was diagnosed again by different doctors with the same condition. He failed to follow-up with the doctors. He stopped taking his medications because he did not think he needed to take them. Applicant intentionally omitted and concealed the extent of his mental health issues on his SCA. Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under the guidelines for Psychological Conditions and Personal Conduct. 13 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 I: AGAINST APPLICANT Subparagraphs 1.a-1.i: Against Applicant Paragraph 2, Guideline E; AGAINST APPLICANT Subparagraph 2.a: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is denied. _____________________________ Carol G. Ricciardello Administrative Judge