DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) -------------------------------- ) ISCR Case No. 11-00987 ) ) Applicant for Security Clearance ) Appearances For Government: Paul DeLaney, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ HOWE, Philip S., Administrative Judge: On July 20, 2009, Applicant submitted his Security Clearance Application (SF 86). On June 8, 2011, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines G (Alcohol Consumption), H (Drug Involvement), E (Personal Conduct), and J (Criminal Conduct). 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 acknowledged receipt of the SOR on June 14, 2011. He answered the SOR in writing on June 22, 2011, and requested a hearing before an administrative judge. Applicant’s answer was not received by DOHA in a timely manner. Applicant requested the case be reopened on August 18, 2011 and his request was granted when he showed by a statement from his employer’s security office that he had attempted to mail his answer in June 2011. DOHA received the second copy of the answer on August 18, 2011. Department Counsel was prepared to proceed on October 3, 2011, and I received the case assignment on October 6, 2011. DOHA issued a Notice of Hearing on November 21, 2011 and I convened the hearing as scheduled on December 7, 2011. The Government offered Exhibits 1 through 3, which were received without objection. Applicant testified and submitted Exhibits A through E, without objection. DOHA received the transcript of the hearing (Tr.) on December 20, 2011. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is denied. Procedural and Evidentiary Rulings Motion to Amend SOR Department Counsel moved to amend the SOR by correcting ¶ 4.c. to delete “10” in line two of the subparagraph and substitute therefore “18” so that the correct statutory citation is 18 U.S.C. § 1001. (Tr. 7.) Findings of Fact In his Answer to the SOR Applicant admitted all the factual allegations in the SOR with explanations, except for Subparagraph 3.b which he denied. He also provided additional information to support his request for eligibility for a security clearance. Applicant is 29 years old, unmarried, and has no children. He received a bachelor’s degree in engineering in 2005. Since 2006 he has been employed by the company, which is sponsoring him for a security clearance. Applicant received an interim clearance in 2009. Applicant writes computer program software for his employer. (Tr. 17-22; Exhibits 1-3) Applicant started consuming alcohol when he was 15 years old. He only consumed it to some degree four or five times before he was 17 years old. Applicant did drink to intoxication on those alcohol-ingesting occasions. While attending college Applicant was intoxicated several times a week. After graduating from college he continued the same pattern of use. He had an eight-month period of non-use in 2000. Applicant did stop drinking some time in 2008 and continued into 2009. Applicant continued to consume alcohol until June 2011. (Tr. 25, 26; Exhibits 1-3, D) Applicant was arrested in September 2004 on a charge of driving while intoxicated. He was convicted of reckless driving on a plea agreement. Applicant was drinking eight to ten beers in a bar located in the town where he attended college. He states it was raining when he departed the bar, one of his tires being partially bald causing him to side-slip while starting to drive away, and a police officer pulled him over for driving while intoxicated. Applicant failed the field sobriety test. Applicant’s August 2009 statement to the government background investigator contained the admission that his breathalyzer result was .16%. (Tr. 27- 31; Exhibits 1-3) Applicant was arrested in February 2007 for operating a motor vehicle while intoxicated, failure to control a vehicle, and failure to present insurance. He was drinking with a group of friends as part of goodbye party for a co-worker who was returning to India to get married. He remained in the bar after his friends departed so he could listen to the band and continue to drink alcohol, consuming ultimately 20 beers. Applicant does not recall the details of the evening after that drinking except the next morning he awoke in the hospital. He admitted he was intoxicated when he drove home that evening. Applicant wrecked his automobile that evening, breaking his wrist and necessitating the installation of a rod and plate in his arm while also tearing connective tissue in his shoulder that later required an operation to repair. Applicant’s alcohol consumption pattern did change for a few weeks after that incident. Applicant had a probationary driving permit after that incident and later returned to his prior alcohol ingesting pattern. Applicant told his manager about this arrest. At that time Applicant worked in the commercial systems area of his company and there was no security issue. Then Applicant applied for a position in the government sector part of his employer’s business, necessitating a security clearance, and his conduct history became an issue. (Tr. 22, 23, 31-37; Exhibits 1-3) In July 2010 Applicant was arrested again for operating a motor vehicle while intoxicated. This arrest was Applicant’s second offense. Applicant was drinking at home while communicating with several friends over the internet. As a favor to a local friend, he drove that person to a store to shop for certain items. Later, after consuming more alcohol at home, he drove that friend home. On the way home Applicant became confused in a construction zone. He drove into a hole in the pavement that was three feet deep and eight feet by eight feet in size. Applicant flipped his car over on its top in that accident. He failed the field sobriety test and was arrested. His breathalyzer result was .141%. The state court sentenced Applicant to 67 days in jail, suspended 60 days of that sentence, and put him on two-years’ probation. He was ordered to attend an alcohol counseling course. His probation was self-supervised, so called under state law, meaning Applicant paid a fee and stayed out of any legal trouble for two years. Applicant successfully served one year of the probation and was discharged by the court. (Tr. 37-42; Exhibits 1-3, A, B, C) Applicant used marijuana during his driving probation period, which would be considered a violation of the terms of that probation. Applicant admitted in the March 30, 2011, DOHA interrogatory that he continued to consume alcohol to the point of intoxication at least once a week. Applicant had been through three alcohol rehabilitation programs by that time. Applicant was bothered by his alcohol consumption pattern but found it difficult to cease drinking. Applicant admitted he has blacked out as a result of his drinking alcohol. (Tr. 43-49; Exhibits 1-3) Applicant has never been formally diagnosed by a medical professional with any alcohol problem. He drank while attending his most recent alcohol and driving education program which was part of his probation. Applicant uses his karate as his support mechanism to sustain his current sobriety. He has not participated in Alcoholics Anonymous (AA) or any other such program. He claims he has been sober since June 4, 2011. (Tr. 49-51, 65) Applicant purchased and used marijuana between 1998 and 2011 at least 100 times. He used it in college and as late as February 2011. Applicant used marijuana after he received a security clearance in October 2009. In answering his security clearance application in Question 23 Applicant minimized his marijuana use so his security clearance would have a better chance of succeeding. He used marijuana while he was intoxicated during social occasions with his friends. He continues to associate with those friends. Applicant did not fully disclose his actual marijuana use to the government investigator during the October 2010 interview. Applicant was aware of his employer’s policy against illegal substance use but continued to use marijuana. (Tr. 52- 64; Exhibits 1-3) Applicant submitted a character statement from his girlfriend attesting to Applicant’s completion of the court-ordered probation program and two substance abuse programs. She also stated Applicant has not consumed alcohol since June 2011. The other character letter Applicant submitted is from a co-worker who was his supervisor on a software development team at his employer. He stated Applicant was also the assistant coach in a sports club. (Exhibits D and E) Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the 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 (AG ¶ 2(a)). 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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. 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 G, Alcohol Consumption AG ¶ 21 expresses the security concern pertaining to alcohol consumption: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. AG ¶ 22 describes seven conditions that could raise a security concern and may be disqualifying. Two conditions apply: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; and (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; Applicant has three alcohol-related driving arrests and convictions (the first arrest charge was reduced to reckless driving). In the course of those three arrests Applicant wrecked two cars he owned. AG ¶ 22 (a) applies. Applicant admitted he drank heavily before driving, while at home and college from 1998 to June 2011. His September 2004 arrest breathalyzer was .16%. His July 2010 arrest breathalyzer result was .141%. These are serious numbers on two breathalyzer results. Applicant’s continuous pattern of heavy alcohol consumption from 1998 to 2011 meets the requirements of AG ¶ 22 (c). AG ¶ 23 provides four conditions that could mitigate security concerns: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; (b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); (c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; and (d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program. The only mitigating condition that applies partially is AG ¶ 23(b) because Applicant admits he has an alcohol abuse problem. However, he has done little or nothing to engage in a substantial and productive rehabilitation program. His three court-ordered programs were of short duration and did not involve any follow-on program participation. Applicant relapsed after each program completion. Applicant admits he only stopped drinking in June 2011 with no AA or other such program involvement. Applicant uses his karate interest as his support mechanism to maintain his recent sobriety. Such an untested approach is not persuasive in comparison to the duration of Applicant’s alcohol abuse. Guideline H, Drug Involvement AG ¶ 24 expresses the security concern pertaining to illegal drugs: 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. (a) Drugs are defined as mood and behavior altering substances, and include: (1) 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 (2) inhalants and other similar substances; (b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction. AG ¶ 25 describes eight conditions that could raise a security concern and may be disqualifying. Four disqualifying conditions apply: (a) any drug abuse (see above definition); (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; (g) any illegal drug use after being granted a security clearance; and (h) expressed intent to continue illegal drug use, or failure to clearly and convincingly commit to discontinue drug use. Applicant admits his marijuana drug use from 1998 to February 2011 (AG ¶ 25 (a)). He admitted possessing marijuana during that time period (AG ¶ 25 (c)). Applicant admitted using marijuana after October 2009 when he received his interim security clearance (AG ¶ 25 (g)). Finally, Applicant failed to clearly and convincingly commit to discontinue illegal drug use. He only ceased his marijuana use in February 2011 after many years of use (AG ¶ 25 (h)). AG ¶ 26 provides four conditions that could mitigate security concerns: (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; (b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; and, (4) a signed statement of intent with automatic revocation of clearance for any violation; (c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and (d) satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional. None of these mitigating conditions apply. Applicant has a long history of marijuana use. His abstinence is only about one year in duration, a short time in comparison to the duration of use. 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. The following will normally result in an unfavorable clearance action or administrative termination of further processing for clearance eligibility: (a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, and cooperation with medical or psychological evaluation; and, (b) refusal to provide full, frank and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination. AG ¶ 16 describes seven conditions that could raise a security concern and may be disqualifying. Four conditions apply: (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; (b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative; (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information; (e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group. Applicant deliberately concealed his marijuana use history when he answered Question 23 on his security clearance application. His actual use was at least 100 times between 1998 and 2011, not the experimentation in college that Applicant wrote on his application. AG ¶ 16 (a) applies. Applicant failed to make full disclosure of his marijuana use to the government investigator who interviewed him in October 2010. He admitted he lied to the investigator. AG ¶ 16 (b) applies. Applicant’s personal conduct involved several adjudicative issue security concerns, including alcohol consumption, drug use, and criminal conduct. Considered as a whole, the arrests for drunk driving, wrecking two cars in alcohol-involved driving incidents, marijuana use during a 13-year period and after receiving a security clearance in October 2009, and his habitual and excessive alcohol consumption for the past decade, all demonstrate his questionable judgment, unreliability, and unwillingness to comply with rules and regulations that indicate that Applicant may not properly safeguard protected information. AG ¶ 16 (c) applies. Applicant’s personal conduct regarding alcohol and marijuana creates a vulnerability to exploitation, manipulation, or duress because his activities may affect his personal, professional, or community standing. AG ¶ 16 (e) applies. AG ¶ 17 provides seven conditions that could mitigate security concerns: (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; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; (f) the information was unsubstantiated or from a source of questionable reliability; and, (g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. None of these mitigating conditions apply. Applicant did not make prompt good- faith efforts to correct his omissions on his security clearance application or after his October 2010 government background interview. His actions are major and continuous over a 13-year period. Applicant has not obtained counseling on his own initiative to change his behavior or taken other positive steps to alleviate his problems. The behavior is likely to continue without the professional evaluation and assistance needed. Finally, Applicant has not taken positive steps to reduce or eliminate vulnerability to exploitation, except allegedly stopping his marijuana use and alcohol consumption, which is supported only by his own testimony and no objective evaluation or observation. He stopped his alcohol use at the same time the SOR was issued. Guideline J, Criminal Conduct AG ¶ 30 expresses the security concern pertaining to criminal conduct: 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. AG ¶ 31 describes five conditions that could raise a security concern and may be disqualifying. Three conditions apply: (a) a single serious crime or multiple lesser offenses; (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; and (e) violation of parole or probation, or failure to complete a court-mandated rehabilitation program. Applicant has three arrests and convictions for alcohol-related driving offenses extending from 2004 to 2010. He admitted these offenses in his SOR answer and at the hearing. AG ¶ 31 (a) and (c) apply. Applicant used marijuana while on the court-ordered probation resulting from his 2010 alcohol-related driving offense. He admitted his use during the hearing. This use was a violation of his probation conditions that he not violate the law in any of its strictures. AG ¶ 31 (e) applies. AG ¶ 32 provides four conditions that could mitigate security concerns: (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; (b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person's life; (c) evidence that the person did not commit the offense; and (d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement. None of these mitigating conditions apply. His criminal behavior is recent. Applicant committed all these offenses of his own volition, so there was no outside pressure on him to commit them. Applicant admitted his criminal conduct. There is no evidence of successful rehabilitation because Applicant only ceased his alcohol consumption and marijuana use in 2011. He did not demonstrate a pattern of reform and professionally assisted rehabilitation. Applicant has been employed since 2006 and a supervisor wrote a character letter for him. These actions are not sufficient to overcome his past record of disqualifying 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 an 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. AG ¶ 2(c) requires each case must be judged on its own merits. 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. Applicant has three alcohol-related driving arrests and convictions during a six-year period while a young man. He wrecked two of his cars in two of the incidents. He admitted to drinking 20 beers before one arrest. Applicant drank heavily and continuously since he entered college, only stopping, by his own unverified account, in June 2011. Applicant used marijuana continuously between 1998 and 2011. Then, during the security clearance application process, he minimized his use on the initial form and admitted he lied to the government investigator. Applicant’s course of conduct was voluntary, frequent, and serious from 1998 to 2011. He did not present any persuasive evidence of professionally managed rehabilitation, relying instead on his karate activities to support his current sobriety. Applicant did not show any permanent changes in behavior are likely. The potential for pressure, coercion, exploitation, or duress continue to exist based on the pattern of past behavior by Applicant. The likelihood of continuation or recurrence of his past alcohol and drug ingestion behavior is high based on his history of such use. Overall, the record evidence leaves me with substantial questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant did not mitigate the security concerns arising from his alcohol consumption, drug use, personal conduct, and criminal conduct security concerns. I conclude the “whole-person” concept against Applicant. 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 G: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: Against Applicant Paragraph 2, Guideline H: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Subparagraph 2.b: Against Applicant Subparagraph 2.c: Against Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraph 3.a: Against Applicant Subparagraph 3.b: Against Applicant Subparagraph 3.c: Against Applicant Paragraph 4, Guideline J: AGAINST APPLICANT Subparagraph 4.a: Against Applicant Subparagraph 4.b: Against Applicant Subparagraph 4.c: 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 eligibility for a security clearance. Eligibility for access to classified information is denied. _________________ PHILIP S. HOWE Administrative Judge