1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 10-01944 ) Applicant for Security Clearance ) Appearances For Government: Ray Blank, Jr., Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ HENRY, Mary E., Administrative Judge: Based upon a review of the pleadings, exhibits, and testimony, Applicant’s eligibility for access to classified information is granted. Statement of the Case Applicant completed and certified an Electronic Questionnaire for Investigations Processing (e-QIP) on November 12, 2009. The Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) on June 21, 2012, detailing security concerns under Guideline J, Criminal Conduct, 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 Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines For Determining Eligibility for Access to Classified Information (AG) implemented on September 1, 2006. AE A relates to Applicant’s 1998 arrest warrant and court finding (4 pages); AE B is a Motion to Set Aside1 Information in the 1998 case with court dates (7 pages); AE C relates to the 2005 arrest warrant (3 pages); AE D is the court disposition documents for the 2005 arrest (2 pages); and AE E is an email from Applicant and a certified criminal record check document (2 pages). 2 Applicant received the SOR on June 27, 2012, which he answered on July 2, 2012. Applicant requested a hearing before an administrative judge with the Defense Office of Hearings and Appeals (DOHA). DOHA received the request, and Department Counsel was prepared to proceed on October 4, 2012. DOHA assigned the case to me on October 15, 2012. DOHA issued a Notice of Hearing on October 31, 2012, and I convened the hearing as scheduled on November 14, 2012. The Government offered exhibits (GE) marked as GE 1 through GE 5, which were received and admitted into evidence without objection. Applicant testified. He did not submitted any exhibits at the hearing. DOHA received the hearing transcript (Tr.) on November 26, 2012. I held the record open until November 28, 2012, for Applicant to submit additional matters. Applicant timely submitted five exhibits (AE) marked as AE A through AE E, which were received and admitted into evidence without objection. The record closed on November1 28, 2012. Procedural Rulings Notice Applicant received the notice of the date, time, and place of the hearing on November 5, 2012, less than 15 days before the hearing. I advised Applicant of his right under ¶ E3.1.8 of the Directive to receive the notice 15 days before the hearing. Applicant affirmatively waived this right under the directive. (Tr. 8.) Motion At the hearing, Department Counsel requested, by motion, to correct clerical errors in the SOR. Under Guideline E, allegations 2.a, 2.b, and 2.c reference questions 23b, 23d, and 23e, instead of 22b, 22d, and 22e, which are the correct question numbers in his November 2009 e-QIP. The motion to correct the SOR was granted, and the SOR is corrected to reflect the correct question numbers. (Tr. 31-32) Findings of Fact In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a - 1.d, and 1.f. For ¶¶ 2.a -2.c of the SOR, he admitted the underlying factual allegations, but denied intentional falsification of his answers. His admissions are incorporated herein as findings of fact. He denied the factual allegations in ¶¶ 1.e and 2.d of the W hen SOR allegations are controverted, the Government bears the burden of producing evidence sufficient2 to prove controverted allegations. Directive, ¶ E3.1.14. “That burden has two components. First, the Government must establish by substantial evidence that the facts and events alleged in the SOR indeed took place. Second, the Government must establish a nexus between the existence of the established facts and events and a legitimate security concern.” See ISCR Case No. 07-18525 at 4 (App. Bd. Feb. 18, 2009), (concurring and dissenting, in part) (citations omitted). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 08-06605 at 3 (App. Bd. Feb. 4, 2010); ISCR Case No. 08-07290 at 2 (App. Bd. Nov. 17, 2009). GE 1; Tr. 20-21.3 GE 1; Tr. 20-21.4 GE 3; Tr. 22-24, 47-48.5 3 SOR. He also denied any deliberate intent to falsify his e-QIP. After a complete and2 thorough review of the evidence of record, I make the following findings of fact. Applicant, who is 47 years old, works in parts control and production support for a DOD contractor. He began his current employment four years ago. He previously worked in the construction industry and as a machinist.3 Applicant graduated from high school in 1984. He and his wife married in 1985. They have three children, a 27-year-old son and two daughters, ages 25 and 16. 4 In June 1997, Applicant moved from one residence to another residence. During the process of moving his personal and household belongings, Applicant transported a semiautomatic (9 millimeter) hand gun. He placed the gun on the front seat of his car. The gun did not have any bullets in it. While transporting the gun, the police stopped him. He told the police about his gun when asked. The police arrested and charged him with unlawful carrying of a weapon, a misdemeanor. Appellant appeared in court on July 29, 1998, where the court dismissed the charge. 5 In 1998, Appellant worked for the teamsters as a job representative. He asked several workers about joining the union. In July 1998, two workers, who were private investigators hired by Applicant’s employer, filed allegations stating that union members were creating a hostile working environment and using threatening conduct with the police. These criminal allegations are misdemeanor offenses under the state law. When Applicant learned about the charges and an October 1998 warrant, he spoke with the union officials, who recommended he turn himself in to the police. Applicant followed their advice. On December 27, 1998, the prosecutor recommended a stay-away order and anger counseling. In February 1999, Applicant’s counsel filed a Motion to Set Aside Information, and the court scheduled a hearing on the motion for April 30, 1999. The result of this hearing is not known. The court did not require Applicant to attend this GE 3; GE 5; AE A; AE B; Tr. 24-25.6 GE 2; GE 3; GE 5; AE C; AE D; Tr. 26-27, 45-46.7 GE 3; GE 5; AE E; Tr. 27-30, 45.8 Tr. 27-30, 45.9 4 hearing. To his knowledge, the union lawyer resolved this legal matter. There is no evidence that this matter is still open.6 On January 7, 2005, while at a repair garage, a male, unknown to Applicant, asked for a ride home. Applicant agreed to give him a ride. During the trip, the police stopped Applicant for a light problem on his truck and erratic driving. The police officer searched his truck and found three marijuana cigarettes under the passenger seat in the vehicle. Applicant denied any knowledge of the marijuana cigarettes. Because he owned the vehicle, the police arrested and charged him with possession of marijuana. The police also arrested the passenger. On January 12, 2005, an arrest warrant was issued for Applicant. Applicant was unaware of the warrant until 2011. He contacted the court and learned that his case was still pending. Applicant hired a lawyer, who resolved this matter for him in May 2011. Applicant entered a plea of guilty. The court records do not show a sentence or fine. Applicant no longer goes to this garage or associates with the individuals at the garage. He changed his friends and associates after this incident.7 City police stopped Applicant while he was driving in July 2007. After Applicant presented his driver’s license, the police determined that it was invalid and cited him for driving while license invalid, a misdemeanor criminal offense, and gave him a citation. The police did not arrest him for this offense. The state criminal records document reflects that the prosecutor rejected this charge without a pre-trial diversion on July 27, 2007, eight days after the citation was issued. These records also state that there is no court data available. Applicant contacted this city about a criminal record for him. The City clerk certified that the city did not have any court records for Applicant.8 After receiving the citation, Applicant stopped driving. He has not driven for several years, because when he tried to renew his driver’s license, he learned that he had a number of unresolved traffic citations and the outstanding warrant. Applicant has slowly paid his outstanding fines on his citations. He paid the last fine one week before the hearing and planned on applying for his driver’s license in the near future. During this time period, his wife has driven him to work and wherever he needs to go. Applicant’s lawyer has also worked with him to resolve his fines and tickets.9 The general instructions on the e-QIP direct an applicant to provide information for the last seven years unless it is a single scope background investigation (SSBI). This same instruction is throughout the e-QIP. Some of the above events appear to be within seven years. When Applicant completed his e-QIP on November 12, 2009, he answered “no” to the following questions, which are alleged in the SOR as a falsification of his e-QIP: Although not at issue in this case, Applicant also answered “no” to all the questions in Section 26, which10 inquire about his finances, then he noted 1 debt in 2002. He did not list numerous other debts, which are not an issue in this case. Likewise, he answered “no” the questions in Section 13C, which inquire about negative issues in his employment history. At the hearing, Applicant acknowledged, on cross-examination, that he had been fired from a job, which he did not list on his e-QIP. His response reflected that he had just recalled his unfavorable job termination. See GE 1; Tr. 43-44. GE 1.11 Response to SOR; Tr. 33-34, 46-54.12 5 Section 22: Police Record b. Have you been arrested by any police office, sheriff, marshal, or any other type of law enforcement officer? d. Have you EVER been charged with a firearms or explosives offense? e. Have you EVER been charged with any offense(s) related to alcohol or drugs? Applicant also answered “no” to subsections a and c which are not at issue in this case. The instructions for this section direct an applicant to respond to the questions in10 subsection a and b using the last seven years as a time frame.11 Applicant denies intentionally falsifying his answers on the e-QIP, although he acknowledges he knew that he had been arrested. When questioned about his reasons for not listing his arrests, Applicant explained that he was not good with dates and that he did not review the dates of his arrest before completing his e-QIP. His wife helped him with dates on his employment, but not with his arrest dates. He thought his arrests were outside the seven-year time frame. He did not list the firearms-related arrest because the charges were dismissed and because it was more than seven years earlier. He did not list the marijuana arrest because he did not possess the marijuana. He overlooked the instruction to include dismissed charges, and he indicated that he did not recognize the change from seven years to “EVER”. Finally, because he thought the warrant issue had been resolved, he answered “no”. He acknowledged at the hearing that he should have answered “yes” to each of these questions. He testified that at the time he completed the e-QIP, he answered the questions to the best of his ability. In looking at the questions now, it was obvious he did not read the questions carefully, and he did not understand some of the questions.12 Applicant indicated that after his wife threatened to leave him and he talked with his mother before her death, he realized he needed to change his conduct. He now GE 2 - Personal subject interview.13 6 attends church and is an active member of his church and his local community. His downward spiral of bad behavior has stopped.13 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. 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. . . .” An applicant has the ultimate burden of persuasion for 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 an applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. 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 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 the disqualifying conditions that could raise security concerns. I have considered all the conditions, and the following are potentially applicable: (a) a single serious crime or multiple lesser offenses; and (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted. Applicant has been arrested and charged with misdemeanor offenses on three occasions and was cited for a traffic violation in 2007 which could result in criminal misdemeanor charges. There appears to be an active warrant related to his 2005 arrest. The above disqualifying conditions apply. AG ¶ 32 provides conditions that could mitigate security concerns. I have considered all the mitigating conditions, and especially the following: (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; (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. Applicant’s weapons arrest occurred over 15 years ago, and his insulting and threatening language arrest is more than 14 years old. Both incidents occurred under unusual circumstances. Specifically, the police stopped Applicant for a motor vehicle infraction, which led to the firearms-related charge. Applicant was moving the pistol from 8 one residence to another. He told the police about the firearm, which was not loaded with ammunition. When he appeared in court a year later, the court dismissed the charges against him. Applicant has not been arrested on a firearm charge since this time. The November 1998 incident arose out of union activity and a claim of misconduct by private investigators, which may not be valid. Applicant strongly denies that he threatened anyone. Given the assignment of these private investigators, who were nonunion individuals, to find negative union conduct, Applicant credibly asserted that he did not threaten these individuals. The court resolved this incident with a stay-away order, and no additional incidents have occurred. In 2005, Applicant’s kindness to a stranger resulted in his arrest for possession of marijuana because, unknown to Applicant, the passenger hid three marijuana cigarettes under the passenger seat in Applicant’s truck during a traffic stop. Applicant had no control over his passenger’s conduct. The record lacks any other evidence of marijuana possession or use by Applicant. For some reason, the warrant issued in January 2005 remained unresolved until 2011. When Applicant became aware of the warrant, he hired an attorney to resolve the matter, which was done in May 2011. Since 2005, Applicant stopped visiting the garage where he picked up his passenger, and he has changed his friends and associates. Applicant is now involved in his church and community, which provides a source of friends and social contacts. Applicant’s marijuana, firearm, and insulting language arrests occurred under unusual circumstances and have not recurred. Thus, AG ¶¶ 20(a) and 20(d) apply to these individual incidents. The court dismissed the firearm charged against Applicant. AG ¶ 20(c) also applies to SOR allegation 1.a. The 2007 incident concerns a motor vehicle violation for which Applicant received a citation. The violation had the potential for a misdemeanor criminal charge, but that did not occur in this case. The prosecutor refused to proceed with the charge, and the city court records do not reflect any criminal charges against Applicant. Applicant knew he should not drive with an invalid driver’s license, but did so. While Applicant violated the motor vehicle code by this conduct, this is a minor offense that has not reoccurred. After this incident, Applicant stopped driving because he could not renew his driver’s license until he paid his overdue tickets. Over the last five years, Applicant, with the help of his wife, has paid his tickets and not driven. He understands that he needed to change his behavior, and he did. AG ¶ 32(d) applies. Given that the SOR raises four criminal incidents by Applicant, I must consider whether these incidents indicate a pattern of conduct which raises questions about his judgment and possibly his honesty. Given the circumstances surrounding the 1998 and 2005 incidents, Applicant’s judgment is not in question. He did not have knowledge about the marijuana in his passenger’s possession. He has made sure that he is not placed in this situation again by staying away from the garage where he met his passenger and by changing his friends. He worked on behalf of his union to recruit new union members, which is not illegal. A decision to work for or on behalf of a union is a personal decision and does not reflect poor judgment. The 1998 incident is directly 9 related to his union activity and is not indicative of a combative personality. There is some concern about the method he chose to move the unloaded firearm, but his forthrightness with the police officer about the presence of the firearm shows he had no intent to hide information from the police and mitigates any concerns about his judgment on this issue. His decision to drive his car while his license was invalid reflects poor judgment. However, five years ago he stopped driving until he could pay his traffic fines. He has yet to receive a new driver’s license. Overall, in viewing all these incidents as a whole, the evidence of record does not reflect a planned pattern of criminal conduct under these circumstances. He has mitigated the security concerns under Guideline J. 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. AG ¶ 16 describes the disqualifying conditions that could raise security concerns. I have considered all the conditions, and the following are potentially applicable: (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; and (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. For AG ¶ 16(a) to apply, Applicant’s omission must be deliberate. The Government established that Applicant omitted material facts from his November 2009 e-QIP, when he failed to acknowledge his past arrests. This information is material to the evaluation of Applicant’s trustworthiness and honesty. In his response and at the hearing, he denied that he intentionally falsified his answers on his e-QIP or that he had an intent to hide his criminal arrests from the Government. When the allegation of falsification is controverted, the Government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-2313314 at 5 (App. Bd. Jun. 9, 2004)). 10 mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant’s intent or state of mind at the time the omission occurred.14 Applicant’s failure to list a citation in 2007 for driving with an invalid driver’s license is not an intentional falsification because he reasonably believed that the receipt of a traffic citation is not the same as being handcuffed, taken to the police station, photographed, fingerprinted, and placed in a cell. In compliance with the e-QIP instructions, Applicant focused on seven years when he completed the e-QIP. His focus on seven years was an erroneous mistake, but an understandable mistake given the majority of instructions throughout the e-QIP indicate a seven-year time frame, not a different time frame unless an applicant was being investigated for an SSBI type clearance. With this focus, his failure to list the 1998 arrest was not intentional nor with an intent to devceive because this arrest occurred more than seven years earlier. The seven-year focus, his careless reading of the instructions for each specific question, his poor memory for dates, and his failure to list the 1997 and 2005 arrests do not amount to intentional falsification. He readily acknowledged he should have answered yes to these questions at the hearing. Applicant answered “no” to financial questions, but acknowledged debt, which shows his carelessness in answering the questions. The Government has not established intentional falsification by Applicant. However, the Government established a security concern under AG ¶ 16(e) because Applicant’s unintentional, but careless, concealment of information about his past criminal conduct creates the potential for his vulnerability to exploitation, manipulation, or duress. AG ¶ 17 provides conditions that could mitigate security concerns. I have considered all the mitigating conditions, and especially the following: (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. Applicant acknowledged his mistake at the hearing. His past arrests are known to others and do not raise a security concern because this conduct occurred sometime ago and under unusual circumstances. He is no longer involved with the union, and he has acted responsibly with his firearm as he has not been arrested for a firearm incident since 1997. He stopped going to the garage where he picked up his passenger, and he has changed his friends. He is involved with his community and church, which provides social contacts and friends. He has mitigated the security concerns under AG ¶ 17(e) and Guideline E. 11 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 relevant 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. The decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern. The evidence in support of granting a security clearance to Applicant under the whole-person concept is more substantial than the evidence in support of denial. In reaching a conclusion, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant married young and started a family soon after. For many years, he did not act responsibly as a father and husband. He eventually matured and decided to change his behavior. He is now able to support his family and has assumed responsibility for his past conduct. While he drove on a suspended license in the past, he stopped this behavior in 2007. For the last five years, his wife has driven him to work and to where he needed to go because he needed this much time to slowly pay his accumulated traffic fines. His arrests occurred as a result of unusual circumstances and immaturity, not a pattern of criminal conduct. His judgment has improved over the years, leading to changes in his conduct and friends. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his criminal conduct and personal conduct under Guidelines J and E. 12 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: 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 Paragraph 2, Guideline E: FOR APPLICANT Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant Subparagraph 2.c: For Applicant Subparagraph 2.d: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. MARY E. HENRY Administrative Judge