1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 14-01505 ) Applicant for Security Clearance ) Appearances For Government: Tara Karoian, Esq., Department Counsel For Applicant: Pro se ___________ Decision ___________ RIVERA, Juan J., Administrative Judge: Applicant has a history of unmitigated alcohol abuse and alcohol-related criminal misconduct. Moreover, he deliberately falsified his 2012 security clearance application (SCA) to hide his alcohol-related criminal misconduct and employment termination. Criminal conduct, alcohol consumption, and personal conduct security concerns are not mitigated. Access to classified information is denied. History of the Case Applicant submitted an SCA on October 11, 2012. After reviewing it and the information gathered during a background investigation, the Department of Defense (DOD) was unable to make an affirmative decision to grant Applicant’s eligibility for a clearance. On October 30, 2014, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued Applicant a Statement of Reasons (SOR) alleging security concerns under Guidelines G (alcohol consumption), J (criminal conduct), and E (personal conduct).1 1 DOD acted under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive) (January 2, 1992), as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), implemented by the DOD on September 1, 2006. 2 Applicant responded to the SOR on November 21, 2014. , Department Counsel was ready to proceed on July 2, 2015. The case was assigned to me on July 18, 2015. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on August 10, 2015, setting the hearing for September 29, 2015. Applicant’s hearing was held as scheduled. At the hearing, Department Counsel offered five exhibits (GE 1-5), and Applicant offered six exhibits (AE 1-6), all of which were admitted into evidence without objection. AE 2 is comprised of three summaries of Applicant’s Office of Personnel Management (OPM) interviews conducted in November 2012, November 2013, and December 2013. At the hearing, Applicant provided some corrections to the interviews, adopted his statements, and then they were admitted into evidence. (Tr. 36-49; GE 2) DOHA received a copy of the transcript of the hearing on October 7, 2015. Procedural Issue At the hearing, the Government moved to amend SOR ¶ 2.a to include the allegation in SOR ¶ 1.e as an additional allegation of criminal conduct under SOR ¶ 2.a. Applicant did not object and I granted the motion. (Tr. 14-15) Findings of Fact In Applicant’s SOR response, he admitted the factual allegations in SOR ¶¶ 1.a- 1.e. He denied the remaining SOR allegations. Applicant’s SOR and hearing admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence, and having observed Applicant’s demeanor while testifying, I make the following additional findings of fact: Applicant is a 50-year-old employee of a federal contractor, who has worked as a warehouse specialist since October 2012. He graduated from high school in 1983. He served on active duty in the U.S. Army from 1986 to 1990. He was discharged as a specialist, and received an honorable discharge. He then served 18 months in the Army National Guard. Applicant married in 1990, and divorced in 2000. He has a 25-year-old daughter from this marriage. Applicant married in 2008, and divorced in 2010. He married his current wife in August 2011. Applicant has three stepchildren from this relationship, ages 34, 28, and 24. Applicant’s employment history shows that he was unemployed between January and March 2009; employed as material handler from March 2009 to September 2010; unemployed between September 2010 and February 2012; employed as a fork lift operator from February to March 2012; and unemployed between February and October 2012. Applicant was hired by his current employer, a federal contractor, in October 2012. As part of his background investigation, Applicant was interviewed three times by government investigators. On his November 7, 2012 interview, Applicant disclosed that he made a false statement in his 2012 SCA. He failed to disclose that he was terminated from his job as a forklift operator in March 2012, because he was involved in 3 an accident. Applicant wrote on his 2012 SCA that in 2009 he left his forklift employment because of “forklift brake failure.” (GE 1 at 11) Applicant’s second interview was on November 25, 2013. During the interview, he disclosed that in June 11, 2013, he was arrested and charged with an alcohol– related second degree assault on his wife. She later refused to testify against him and the charge was dismissed. (Additional facts about this incident are outlined in page 4, infra.) Applicant told the investigator that there was no likelihood of a similar event reoccurring because he was voluntarily attending Alcoholic Anonymous (AA) meetings, a spouse abuse intervention program, marriage counseling at church, and he had been alcohol free for six months. Applicant informed the investigator that he was involved in a similar incident in September 2008 with his ex-wife. The charge was later expunged. (AE 5) Applicant described himself to the investigator as a functional drunk. Applicant’s third interview took place on December 31, 2013. During the interview, he was confronted with a February 24, 2006 arrest and conviction for driving while impaired (DWI) that he failed to disclose in his 2012 SCA. Applicant was placed on supervised probation for one year and required to attend substance abuse counseling. Applicant explained that he did not disclose his DWI conviction because it had been expunged. Applicant testified that he started drinking alcohol when he was 13 years old. (Tr. 46) In July 1986, his alcohol consumption increased and it became a problem. He believed he had some alcohol-related altercations prior to 2006. He had one arrest for driving under the influence of alcohol (DUI) in the 1986 to 1990 timeframe. (Tr. 46-61) In February 2006, Applicant was arrested and charged with DUI. In April 2006, he pleaded guilty to driving or attempting to drive while impaired by alcohol. He was sentenced to one year of probation before judgment and a $307 fine. (SOR ¶ 1.a) He did not remember whether he received any alcohol-related counseling or therapy after the 2006 DUI. In 2008, Applicant drank five to eight beers at his residence. He and his spouse were arguing, and his stepdaughter called the police. Applicant threw his wife on the bed, and he left “thumb prints on her.” Applicant was arrested for domestic violence and assault. The charges were later dismissed. In 2009, Applicant was arrested for DUI. He does not remember much about the DUI incident; however, it was dismissed when he went to court. The 2009 DUI and the pre-1990 DUI are not alleged on the SOR.2 2Applicant’s SOR does not allege that he had a DUI arrest before 1990 and one in 2009, and that he failed to disclose his 2009 DUI on his October 11, 2012 SCA. In ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006), the Appeal Board listed five circumstances in which conduct not alleged in an SOR may be considered stating: 4 In 2010, Applicant was arrested for disorderly conduct, fighting, harassment, and simple assault. Applicant consumed alcohol, and he passed out in his camper. He woke up; he observed his spouse with another man; and he “lost control.” He could not remember what happened. He pleaded guilty to disorderly conduct and paid a $287 fine. In June 2013, Applicant consumed 18 to 25 beers over an 8 to 10 hour period at his residence. He stated that he could not remember what happened. Applicant’s spouse was drinking alcohol with him. Applicant and his spouse engaged in a physical altercation with each other. She received a cut to her lip, and she called the police. Applicant’s wife stated to the police officer that Applicant threatened to shoot her with a rifle, and then himself, because she called the police. Applicant went to his basement and obtained his rifle. When the police arrived; Applicant put the rifle away; he surrendered to the police, and he was arrested and charged with assault. He spent three days in jail, and his spouse posted his $20,000 bond. She later refused to testify against Applicant and the charge was dismissed. (Tr. 70) In June 2013 after his arrest, Applicant began attending Alcoholics Anonymous (AA) meetings. Applicant was sober from June 2013 to March 2014. In March 2014, he drank five beers. Applicant claimed that he resumed his sobriety, and that at the time of his hearing, he had been sober for 18 months. He attends at least two AA meetings a week. (Applicant’s spouse also attends AA, and she has been sober for 15 months). Applicant has committed to remaining sober; he acknowledged the severe negative consequences for him of continued alcohol consumption; and he assured that now that he is sober he is a conscientious and reliable person. Applicant’s AA sponsor has known Applicant for about nine months. His sponsor has attended AA meetings for 25 years. He described Applicant as sincere and making progress in his maintenance of sobriety, in the 12 AA steps, and in his recovery. Section 13A of Applicant’s 2012 SCA asked whether in the last seven years of employment he had received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security policy. Applicant answered “no.” Section 13C asked Applicant whether in the last seven years he had been fired from a job. Applicant also responded “no” to the question. (a) to assess an applicant’s credibility; (b) to evaluate an applicant’s evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) to provide evidence for whole person analysis under Directive Section 6.3. Id. (citing ISCR Case No. 02-07218 at 3 (App. Bd. Mar. 15, 2004); ISCR Case No. 00-0633 at 3 (App. Bd. Oct. 24, 2003)). Applicant’s non-SOR conduct will not be considered for disqualification purposes, and consideration will be limited to the five circumstances outlined by the appeal board. 5 Applicant deliberately failed to disclose that he was fired from employment in the previous seven years. He admitted he lied on his SCA. (Tr. 59) Applicant lost three jobs because of alcohol abuse. (Tr. 64) In 2009, he was fired from his employment as a forklift operator because he was in jail for a DUI. (Tr. 60) He explained his false answer on his SCA as follows, “Oh, I probably lied about it.” (Tr. 59) Department Counsel responded, “So would it be fair to say that you lied a great deal while you were drinking?” Applicant conceded, “That’s all I know how to do, ma’am.” (Tr. 60) He attributed his poor decisions, such as false statements and arrests, to the effects on his life of his addiction to and consumption of alcohol. (Tr. 59-65, 71-75) Section 22 (Police Record) of Applicant’s 2012 SCA asked him to disclose whether in the last seven years he had been: issued a summons, citation, or ticket to appear in court in a criminal proceeding; arrested; charged, convicted, or sentenced of a crime; placed on probation or parole; and whether he was on trial or awaiting trial on criminal charges. In his response, Applicant answered “no,” and failed to disclose his arrests, charges, and conviction as outlined above. Applicant claimed he believed that he did not have to disclose his arrests on his 2012 SCA if he was not convicted. (Tr. 65) For the 2006 DUI arrest, which resulted in a conviction, he did not disclose it because he “didn’t think anybody would find out” about his conviction. (Tr. 66) Section 24 (Use of Alcohol) asked Applicant whether in the last seven years his use of alcohol had a negative impact on his work performance, professional or personal relationships, finances, or resulted in intervention by law enforcement personnel. It also asked him whether he ever had been ordered, asked to, or voluntarily sought counselling or treatment as a result of his use of alcohol. Applicant answered “no” to all the above questions. He deliberately failed to disclose his long history of alcohol abuse, alcohol-related misconduct, and the alcohol counseling he had received. The SOR did not allege that Applicant falsified Section 24 when he failed to disclose his alcohol-related history, criminal behavior, and counseling in his 2012 SCA. As explained in Footnote 2, supra, I considered this information solely for the purpose of assessing Applicant’s credibility and his claims of mistake, inadvertent behavior, or lack of intent to mislead the Government. Applicant’s human resource manager since October 2012, wrote a letter (dated August 5, 2013) recommending Applicant for employment and a security clearance. (AE 1) She described Applicant as an outstanding employee with unmatched energy, competence, flexibility, a calm demeanor, and an understanding of teamwork. (AE 1) Policies Eligibility for access to classified information may be granted “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. The U.S. Supreme Court has recognized the substantial discretion of the Executive 6 Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The AG list disqualifying and mitigating conditions for evaluating a person’s suitability for access to classified information. Any one disqualifying or mitigating condition is not, by itself, conclusive. However, the AG should be followed where a case can be measured against them, as they represent policy guidance governing access to classified information. Each decision must reflect a fair, impartial, and commonsense consideration of the whole person and the factors listed in AG ¶ 2(a). All available, reliable information about the person, past and present, favorable and unfavorable, must be considered. Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The applicant bears the heavy burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance. Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of those who must protect national interest as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; AG ¶ 2(b). Clearance decisions are not a determination of the loyalty of the applicant concerned. They are merely an indication that the applicant has or has not met the strict guidelines the Government has established for issuing a clearance. Analysis Alcohol Consumption AG ¶ 21 articulates the Government’s concern about alcohol consumption, “[e]xcessive 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(a) and 22(c) provide two alcohol consumption disqualifying conditions that could raise a security concern and may be disqualifying in this case: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or 7 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. AG ¶¶ 22(a) and 22(c) apply. Applicant has a long history of excessive alcohol consumption. He engaged in binge-alcohol consumption to the extent of impaired judgment.3 He was involved in four alcohol-related incidents involving law enforcement and the courts, which include a DUI conviction in 2006, a disorderly conduct conviction in 2010, and he was arrested, but not convicted, for alcohol-related assaults in 2008 and 2013. Four Alcohol Consumption Mitigating Conditions under AG ¶¶ 23(a)-23(d) are potentially applicable: (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. None of the mitigating conditions fully apply. The record establishes the four alcohol-related incidents involving the police and courts, and a history of excessive 3The term “binge” drinking is not defined in the Directive. The generally accepted definition of binge drinking for males is the consumption of five or more drinks in about two hours. It was approved by the National Institute on Alcohol Abuse and Alcoholism (NIAAA) National Advisory Council in February 2004. See U.S. Dept. of Health and Human Services, NIAAA Newsletter 3 (Winter 2004 No. 3), http://www.pubs.niaaa.nih.gov/publications/Newsletter/ winter2004/NewsletterNumber3.pdf. 8 alcohol consumption. Applicant had at least one additional DUI arrest, which was not included in the SOR. Applicant claimed that he attended and continues to attend an AA alcohol rehabilitation or counseling program. He also testified that he has abstained from alcohol consumption for 18 months. However, he failed to provide corroborating evidence to establish permanent lifestyle changes to ensure that similar behavior will not recur. Applicant received alcohol counseling in 2006 and 2008, and that did not help him to prevent subsequent alcohol-related misconduct. Applicant explained that in 2010 and 2013 he had very limited or no memories of what occurred before he was arrested for alcohol-related assaults and disorderly conduct. Applicant’s lack of memory could be caused by an alcohol-related blackout. During an alcohol-related blackout, a person may still engage in voluntary behavior and thought processes. They might make decisions, for example, to drive home from a bar, or engage in other activities which require complex cognitive abilities, but the individual might not remember the next day and might regret it. A person who consumes alcohol to a blacked-out state may not remember that they violated national security. While there is no evidence Applicant violated national security, the potential risk of such an occurrence is increased by excessive alcohol consumption, especially to the extent of a memory black out. After careful consideration of Applicant’s history of alcohol consumption, and his recent rehabilitation efforts, I have continuing doubts about the risk of his resumption of alcohol consumption. Considering the period during which Applicant has abused alcohol, the number of alcohol-related incidents, his prior alcohol counselling, and the lack of a favorable prognosis by a duly qualified medical professional, I find that it is too soon to conclude that Applicant has been rehabilitated and that further alcohol-related incidents are unlikely to recur. Not enough time has elapsed without alcohol consumption to eliminate doubt about Applicant’s current reliability, trustworthiness, and good judgment. Alcohol consumption concerns are not mitigated. 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.” The criminal conduct allegations cross-alleged the same facts and circumstances alleged under SOR ¶¶ 1.b through 1.e. AG ¶ 31 describes two conditions that could raise a security concern and may be disqualifying in this case, “(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.” 9 AG ¶¶ 31(a) and 31(c) apply. Applicant had a DUI conviction in 2006. He was found guilty of disorderly conduct in 2010. In 2008 and 2013, he was arrested, but not convicted of alcohol-related assaults. He admitted he was drunk and disorderly in 2008 and 2013. He lacked a complete memory of his behavior on those occasions. These four alcohol-related offenses are misdemeanor-level criminal conduct. AG ¶ 32 provides four conditions that could potentially 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 the mitigating conditions fully apply. For the reasons stated in the Guideline G discussion, incorporated herein, I find that more time without criminal conduct must elapse before criminal conduct concerns will be mitigated. 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 personal conduct security concerns are based, in part, on the same conduct that led to the alcohol consumption and criminal conduct security concerns. More importantly, Applicant deliberately omitted relevant and material information from his 2012 SCA when he failed to disclose in his response to Section 22 all the arrest and charges set forth in SOR ¶¶ 1.b through 1.d, and in Section 13C that he had been fired from a job. Applicant’s conduct triggers the applicability of the following disqualifying conditions under AG ¶ 16: 10 (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. AG ¶ 17 provides conditions that could mitigate security concerns including: (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 the mitigating conditions apply. Applicant admitted he lied on his 2012 SCA, and he attributed his false statement to the effects of his addiction to alcohol. The 11 protection of national security relies upon the honesty of security clearance holders, and their willingness to self-report information, even when disclosure reflects poorly on the security clearance holder. Personal conduct concerns are not mitigated. Whole-Person Concept I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, and under the whole-person concept. AG ¶ 2(c). I have incorporated my comments under Guidelines G, H, and J in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant provided some evidence supporting continuation of his security clearance. He is a 50-year-old employee of a defense contractor, who has worked as a warehouse specialist since October 2012. He served honorably in the Army on active duty for six years, and 18 months in the Army National Guard. Applicant’s manager from 2012 to 2013 described him as an outstanding employee with unmatched energy, competence, flexibility, calm demeanor, and an understanding of teamwork. He testified that he attends AA meetings. He claimed that he has abstained from alcohol consumption for 18 months, and he intends to continue to remain sober. The factors weighing against continuation of his security clearance are more substantial than the mitigating circumstances. Applicant has a history of consuming alcohol, at times to excess, that spans from 1981 to at least 2013. He had a DUI conviction in 2006. He had a DUI arrest in 2009; however, he was not convicted. He was found guilty of an alcohol-related disorderly conduct in 2010. In 2008 and 2013, he was arrested, but not convicted of alcohol-related assaults. In 2013, he consumed alcohol to excess and was involved in a serious incident with law enforcement, that included an injury to his spouse (a cut to her lip), and a threat with a firearm. Moreover, Applicant falsified his October 11, 2012 SCA when he failed to disclose his history of excessive alcohol consumption, alcohol-related criminal behavior, and employment terminations. Applicant knew the information he was providing to security officials was false. I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Alcohol consumption, criminal conduct, and personal conduct security concerns are not mitigated. 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 12 Subparagraphs 1.a-1.e: Against Applicant Paragraph 2, Guideline J: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraphs 3.a and 3.b: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national security to grant or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. _________________________ JUAN J. RIVERA Administrative Judge