1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-00406 ) Applicant for Security Clearance ) Appearances For Government: Carroll Connelley, Esq., Department Counsel For Applicant: Pro se __________ Decision __________ TUIDER, Robert J., Administrative Judge: Applicant failed to mitigate security concerns under Guidelines J (criminal conduct) and E (personal conduct). Clearance is denied. Statement of the Case On June 25, 2015, Applicant submitted a Questionnaire for National Security Positions (SF-86). On June 3, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to Applicant, pursuant to Exec. Or. 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended; and the adjudicative guidelines (AG), which became effective on September 1, 2006. The SOR alleged security concerns under Guidelines J and E. The SOR detailed reasons why the DOD CAF was unable to find that it is clearly consistent with the national interest to grant a security clearance for Applicant, and it recommended that his case be submitted to an administrative judge for a determination whether his clearance should be granted or denied. 2 On June 29, 2016, Applicant responded to the SOR. On August 8, 2016, Department Counsel was ready to proceed. On August 12, 2016, DOHA assigned Applicant’s case to me. On August 15, 2016, the Defense Office of Hearings and Appeals (DOHA) issued a hearing notice, setting the hearing for September 14, 2016. Applicant’s hearing was held as scheduled. At the hearing, Department Counsel offered Government Exhibits (GE) 1 through 5, which were received into evidence without objection. Applicant testified, did not call any witnesses, and offered Applicant Exhibits (AE) A through D, which were received into evidence without objection. On July 20, 2015, DOHA received the hearing transcript (Tr.). I held the record open until October 28, 2016 to afford the Applicant an opportunity to submit additional evidence. Applicant timely submitted AE, which was received into evidence without objection. Findings of Fact In his SOR answer, Applicant admitted all of the allegations. After a thorough review of the evidence, I make the following additional findings of fact. Background Information Applicant is a 32-year-old sales associate for a cell phone company. He has applied for a position as a test mechanic for a defense contractor and seeks a secret security clearance, which is a condition of employment. (GE 1; Tr. 11-13) Applicant graduated from high school in May 2003. He has attended several colleges and earned approximately “55 or 60” college credit hours. Applicant has never married and has no dependents. He served in the U.S. Navy from December 2004 to October 2009, and achieved the rank of machinist mate second class (pay grade E-5) (submarine service). He was discharged with an other than honorable (OTH) discharge, discussed below. (GE 1, GE 2: Tr. 13-20) Criminal Conduct/Personal Conduct In March 2009, Applicant was involved in a horrific accident. On his 24th birthday, he and two shipmates went out to celebrate and engaged in heavy drinking. After leaving a nearby casino in the early morning hours, Applicant drove the wrong way on an interstate and was involved in a head-on collision with a van with nine passengers inside. One of the passengers, a female college student, was killed, and the remaining eight passengers received non-life threatening injures. Applicant sustained a broken ankle along with cuts and abrasions. (GE 1, GE 2, GE 5; Tr. 20-21, 27, 29) Applicant was taken into custody at the scene, given a breathalyzer at the police station that registered a blood alcohol content of .13, and was transported to a local hospital and treated for his injuries. After being treated, Applicant was taken to a local correctional facility and remained there until his trial in June 2010. At his 3 trial, Applicant pleaded guilty to misdemeanor driving while intoxicated (DWI), felony assault with a motor vehicle, two counts of felony reckless endangerment, felony vehicular manslaughter, and driving the wrong way on a highway. Applicant was sentenced to 22½ years, to be suspended after serving 75 months, 5 years of supervised probation to begin upon release from prison, and completion of an alcohol education and awareness class upon his release from prison. Applicant was released from prison 7 months early as a result of good time in September 2014, after having served 67 months. (GE 2; Tr. 21, 30-34) Applicant was ordered to attend two Mothers Against Drunk Driving (MADD) victim impact panels for each of the five years he is on probation. The judge also ordered him to serve 90 hours of community service each year – 10 hours for each of the accident victims – and to perform nine speaking engagements about the costs of drunken driving to college or high school students. Applicant’s sentence also prohibited him from driving a vehicle that is not equipped with an ignition interlock device, prohibited him from consuming or possessing alcohol, and required him to undergo drug and alcohol evaluations. Applicant will not be eligible for early termination of his probation. (GE 5; Tr. 22-23, 29) Applicant has complied with or exceeded all terms of his probation. Although required to attend two MADD victim impact panels a year, in the 18 months following his release from prison, he had participated in over 35 events as well as serving as a general volunteer. (AE A; Tr. 23-25, 34) Applicant’s probation will not end until September 2019. (Tr. 25, 29) The victims of the accident ultimately sued the nightclub that overserved Applicant and received a $4.6 million settlement. (Tr. 26-27, 29, 34-35) While Applicant was in prison, the Navy separated him with an OTH discharge as a result of misconduct in October 2009. (GE 4; Tr. 27-29) Character Evidence Applicant submitted four reference letters: two from current work supervisors from his cell phone company, one from the local MADD program manager, and one from his probation officer. His work-related references describe Applicant in a very positive way and have no regrets about hiring him after his release from prison. Applicant’s MADD program manager described his participation in MADD-related programs and the positive impact he is making. His probation officer certified that he is current on all of the requirements of probation. (AE A – E) Policies The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no 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 4 his designee to grant applicant’s 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, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied 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, 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 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 “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), § 3.1. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It 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. 95-0611 at 2 (App. Bd. May 2, 1996). 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 ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue her security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 5 “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). Analysis Criminal Conduct AG ¶ 30 articulates the security concern concerning 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 Government established its case under Guideline J through Applicant’s admissions and the evidence presented. A review of the evidence supports application of three criminal conduct disqualifying conditions: AG ¶ 31(a) “a single serious crime or multiple lesser offenses”; AG ¶ 31(c) “allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted”; and AG ¶ 31(d) “individual is currently on parole or probation.” Four criminal conduct mitigating conditions under AG ¶¶ 32 are potentially applicable: (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. AG ¶ 32(d) is partially applicable. Applicant has done everything or exceeded all that could be expected since his release from prison except for completion of probation which will not occur until September 2019. Given the seriousness of Applicant’s conviction, none of the other mitigating conditions are fully applicable. Applicant demonstrated remorse during his hearing as well as by his actions. There is no doubt that if he could relive that night in March 2009, he would. Unfortunately, he cannot and is currently in the process of repaying his debt to society. 6 Personal Conduct The security concern relation to the Guideline for personal conduct is set out in AG ¶ 15: 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 Government established its case under Guideline E through Applicant’s admissions and the evidence presented. A review of the evidence supports application of AG ¶ 16 as a disqualifying condition that could raise a security concern: (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information 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. This includes but is not limited to consideration of: (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information . . . ; 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 three potential mitigating conditions: (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. 7 The discussion under criminal conduct is incorporated in this section. Personal conduct concerns were raised as a result of Applicant being given an OTH discharge from the Navy as a result of his conviction for offenses discussed. Partial application of AG ¶¶ 17(d) and 17(e) is warranted for reasons discussed under criminal conduct. However, full application is precluded as a result Applicant’s current probation status, and the seriousness of offense. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. 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. AG ¶ 2(c). The discussion in the Analysis section under Guidelines J and E is incorporated in this whole-person section. However, further comments are warranted. Applicant’s positive employment recommendations and letters from his MADD program manager and probation officer weigh in his favor. He is a law-abiding citizen, was a contributing member of the U.S. Navy until his 2009 arrest, and is doing everything within his ability to redeem himself from a most unfortunate and foolish decision that he recognizes and lives with every day of his life. Security clearance adjudications are aimed at evaluating an applicant’s judgment, reliability, and trustworthiness. Applicant’s 2009 felony arrest and subsequent conviction and current probationary status do not reflect favorably on Applicant. I recognize and applaud the efforts Applicant has made and encourage him to continue with his current course of action. However, further time is required to put the misconduct behind him, especially given the fact he is currently on probation. I take this position based on the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), my careful consideration of the whole-person factors and supporting evidence, my application of the pertinent factors under the adjudicative process, and my interpretation of my responsibilities under the adjudicative guidelines 8 Formal Findings Formal findings For or Against the 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: AGAINST APPLICANT Subparagraph 1.a: AGAINST APPLICANT Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraph 2.a: AGAINST APPLICANT Conclusion In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue Applicant’s eligibility for a security clearance. Clearance is denied. ____________________________ Robert J. Tuider Administrative Judge