1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 16-00307 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guidelines J (Criminal Conduct) and G (Alcohol Consumption). Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a security clearance application on June 11, 2015. On June 9, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines J and G. The DOD CAF acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. The adjudicative guidelines are codified in 32 C.F.R. § 154, Appendix H (2006), and they replace the guidelines in Enclosure 2 to the Directive. Applicant answered the SOR on July 1, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on August 3, 2016, 2 and the case was assigned to me on September 7, 2016. On September 9 2016, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for September 27, 2016. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 4 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AX) A through N, which were admitted without objection. I kept the record open until October 7, 2016, to enable Department Counsel to determine if there was a third page for GX 4, showing disposition of the charges alleged in SOR ¶ 1.a. She timely submitted a third page, which has been added to GX 4. DOHA received the transcript (Tr.) on October 5, 2016. Findings of Fact1 In his answer to the SOR, Applicant admitted all the allegations. His admissions in his answer and at the hearing are incorporated in my findings of fact. Applicant is a 55-year-old production foreman employed by a defense contractor since July 1980. He began working for his current employer immediately after graduating from high school in 1980, and he received a security clearance shortly thereafter. (Tr. 32.) Applicant married in March 1987, separated in 1991 or 1992, and divorced in September 1993. He remarried in February 2007. He has a nine-year-old daughter and four adult step-children, ages 31, 29, 28, and 26. Applicant has an extensive criminal record. It is summarized below in chronological order and in reverse order of the allegations in the SOR. SOR ¶ 1.h. In July 1985, Applicant was convicted of driving under the influence (DUI). He was fined and given a suspended jail sentence. SOR ¶ 1.g. In February 1993, Applicant was arrested for misdemeanor domestic assault, destroying private property, and misdemeanor assault. The domestic assault and destruction of property charges were dismissed, and he was convicted of the misdemeanor assault. (GX 3.) The charges arose from mutual fistfight between Applicant and his estranged wife’s boyfriend. (GX 4 at 2; Tr. 44.) SOR ¶ 1.f. In May 1993, Applicant was arrested for misdemeanor possession of marijuana. The charges were dismissed. SOR ¶ 1.e. In June 1995, Applicant was arrested for DUI (2nd offense). He was convicted, fined $1,000 ($750 suspended), sentenced to 12 months in jail (all but four 1 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record. 3 days suspended), placed on unsupervised probation for three years, and required to attend alcohol education classes. (GX 1 at 28; GX 4 at 2.) SOR ¶ 1.d. In August 1997, Applicant was arrested for felony obstruction of justice, after he refused to answer the door for police who wanted to serve a warrant on a guest in his house. (Tr. 52.) A nolle prosequi was entered. (GX 3 at 2; GX 4 at 3.) SOR ¶ 1.c. In May 2001, Applicant was charged with DUI (3rd offense) and refusal to submit to a breath-alcohol test. He was sentenced to 12 months in jail (suspended) and a fine for the DUI. A nolle prosequi was entered for the breath-alcohol test refusal. (GX 3 at 2; GX 4 at 3.) SOR ¶ 1.b. In October 2007, Applicant was charged with misdemeanor assault on a family member. The incident occurred when Applicant wanted to put his daughter, then one month old, in a bassinet to sleep. His 29-year-old stepdaughter (then 21 years old) insisted sleeping in bed with the baby. His stepdaughter was holding the baby tightly in her arms and refused to let Applicant take the baby. After a scuffle and some argument, his stepdaughter relinquished the baby. Applicant then picked up his stepdaughter in a bear hug and removed her from the home, with the stepdaughter punching and scratching him as she was being ejected. The police arrived as Applicant was ejecting her. (GX 2 at 11-12; Tr. 35-36.) The prosecutor entered a nolle prosequi after Applicant’s stepdaughter failed to appear at his trial. (GX 3 at 2; Tr. 56.) SOR ¶ 1.a. In May 2015, Applicant was again charged with misdemeanor assault on a family member. This incident arose when Applicant’s wife and his stepdaughter returned home after a concert. Both were intoxicated, and Applicant asked his wife who had driven, because he knew his stepdaughter did not have a driver’s license. His stepdaughter interrupted the conversation between Applicant and his wife, and Applicant asked her to leave. His stepdaughter began screaming and trying to hit Applicant. He retreated to another part of the house and called the police. His stepdaughter followed him and continued to punch and slap him. Applicant’s seven- year-old daughter attempted to intervene, and his stepdaughter pushed her away and knocked her to the ground. Applicant grabbed his stepdaughter and began to drag her out of the house. He let her go when she promised to leave peacefully, but she then threw a toy baby stroller at him and attempted to strike him again. He picked her up in a bear hug and dragged her out the door. She began to walk away as the police arrived. (GX 2 at 4; Tr. 36-38.) Applicant’s stepdaughter was charged with assault on a family member. During the affray, Applicant’s wife had fallen to the floor. She did not believe she was injured, but she discovered the next day that she had broken ribs, apparently from falling on the arm of a sofa. Applicant’s stepdaughter filed a complaint against Applicant for assaulting his wife. He was arrested and held in jail for three days until he could make bail. The charge of assaulting his wife was dismissed, but he was convicted of assaulting his stepdaughter by placing his hands on her after she agreed to leave the house. (GX 2 at 4 5-7; Tr. 38-39, 62.) He testified that the charges were dismissed on appeal. (Tr. 63.) The court records recite, “Disposition not received.” (GX 4 at 3.) In a personal subject interview (PSI) by a security investigator in September 2015, Applicant told the investigator that he believes his stepdaughter is bipolar and on medication. He has physically removed her from his home four times since 2007, and she has been arrested several times by the police. (GX 2 at 12.) She has moved to another state far away, and Applicant has had no contact with her since the May 2015 incident. (Tr. 64-65.) The allegations in SOR ¶¶ 1.c-1.h were previously alleged in an SOR dated April 19, 2006, considered by an administrative judge, and resolved in Applicant’s favor. (GX 4; ISCR Case No. 05-15659 (AJ Williams, Dec. 28, 2006).) After Applicant’s DUI conviction in May 2001, he stopped consuming alcohol until Christmas 2004, when he had two or three beers at a party. At the hearing, he testified that he has not consumed alcohol since Christmas 2004. He attended Alcoholics Anonymous meetings and received counseling until 2007. (GX 2 at 9; Tr. 64.) Applicant’s general foreman has known Applicant for 22 years. He states that Applicant has always exceeded job expectations and can be trusted to take on any task and make the outcome successful. He considered Applicant a very engaged husband and father and a good friend. (AX A.) Another supervisor has known Applicant since the early 1980s and considers him a hard worker who takes great pride in his work, trains his crew well, and has earned the respect of his subordinates. (AX B.) A co-worker who has known Applicant for 10 years describes him as an organized and conscientious supervisor. (AX C.) One of Applicant’s subordinates considers him an honest and hardworking supervisor who treats his subordinates fairly and professionally. (AX D.) Another co-worker who has known Applicant for 10 years considers him a dependable and intelligent co-worker who has shown “great leadership” as a supervisor. Applicant has received numerous awards and commendations for excellent performance (AX F through L.) His most recent performance evaluation rated him as a “3” on a 4-point scale (1 = below expectations; 2 = meets expectations; 3 = exceeds expectations; 4 = far exceeds expectations). (AX M.) Policies “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2. 5 Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 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. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). 6 Analysis Guideline J, Criminal Conduct The concern raised by criminal conduct is set out in AG ¶ 30: “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.” Applicant’s admissions and the documentary evidence of his record of arrests and convictions establish two disqualifying conditions under this guideline: AG ¶ 31(a) (“a single serious crime or multiple lesser offenses”) and AG ¶ 31(c) (“allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted, or convicted”). The following mitigating conditions under this guideline are potentially relevant: AG ¶ 32(a): so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; AG ¶ 32(c): evidence that the person did not commit the offense; and AG ¶ 32(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. AG ¶ 32(a) is established. The conduct alleged in SOR ¶ 1.b.-1.h happened long ago. Applicant has not consumed alcohol or had any alcohol-related incidents since Christmas 2004. The May 2015 incident was unusual in that his stepdaughter chased him when he attempted to retreat and continued to attack him until he physically subdued her. His combative stepdaughter no longer resides near his home and he has had no contact with her since the May 2015 incident. The conduct that occurred in May 2015 is unlikely to recur and does not cast doubt on his current reliability, trustworthiness, or good judgment. AG ¶ 32(c) is established for the May 2015 incident alleged in SOR ¶ 1.a. Applicant’s testimony at the hearing was consistent with his September 2015 PSI. His testimony reflects that he was a victim of his stepdaughter’s violence, that he attempted to retreat, and that he resorted to physically restraining her as a last resort. However, this mitigating condition is not established for the incident alleged in SOR ¶ 1.b, because Applicant admitted that he reinitiated the altercation after the earlier scuffle ended, and he physically ejected his stepdaughter from the home. 7 AG 32(d) is established for the offenses alleged in SOR ¶ 1.b-1.h, based on the passage of time without recurrence of criminal activity and Applicant’s excellent employment record. Guideline G, Alcohol Consumption The SOR cross-alleges the DUI convictions alleged in SOR ¶¶ 1.c, 1.e, and 1.h under this guideline. The concern is set out in AG ¶ 21: “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.” Applicant’s record of DUI convictions establishes the disqualifying condition in AG ¶ 22(a): “alcohol- related incidents away from work, such as driving while under the influence . . . .” No other disqualifying conditions under this guideline are established. There is no evidence of alcohol-related incidents at work, binge drinking, a diagnosis of alcohol dependence or alcohol abuse, or relapse after completion of an alcohol rehabilitation program. Applicant was required to attend alcohol safety education classes after several of his DUI convictions, but these classes are not a rehabilitation program within the meaning of this guideline. Applicant’s last DUI conviction was in May 2001. The security concerns raised by his alcohol consumption are mitigated under AG 23(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.” Whole-Person Concept 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. In applying the whole- person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. An administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. 8 I have incorporated my comments under Guideline J and G in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant has worked for his current employer and held a security clearance for all of his adult life. He was candid, sincere, and credible at the personal appearance. He has overcome his problems with alcohol. He enjoys an excellent reputation among his co-workers and supervisors. After weighing the disqualifying and mitigating conditions under Guidelines J and G, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns raised by his criminal record and alcohol consumption. Accordingly, I conclude he has carried his burden of showing that it is clearly consistent with the national interest to continue his eligibility for access to classified information. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline J (Criminal Conduct): FOR APPLICANT Subparagraphs 1.a-1.h: For Applicant Paragraph 2, Guideline G (Alcohol Consumption): FOR APPLICANT Subparagraph 2.a: For Applicant Conclusion I conclude that it is clearly consistent with the national interest to continue Applicant’s eligibility for access to classified information. Clearance is granted. LeRoy F. Foreman Administrative Judge