1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01179 ) 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 E (Personal Conduct) and J (Criminal Conduct). Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a security clearance application on August 21, 2015. On July 30, 2016, the Department of Defense (DOD) sent him a Statement of Reasons (SOR), alleging security concerns under Guidelines E and J. The DOD acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006. 1 1 Security Executive Agent Directive 4 (SEAD 4), was issued on December 10, 2016, revising the 2006 adjudicative guidelines. The SEAD 4 guidelines apply to all adjudicative decisions issued on or after June 2 Applicant answered the SOR on August 19, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 13, 2016, and the case was assigned to me on March 2, 2017. On March 3, 2017, the Defense Office of Hearings and Appeals notified Applicant that his hearing was scheduled for March 21, 2017. I conducted the hearing as scheduled. Department Counsel submitted Government Exhibits (GX) 1 through 7 and Applicant submitted Applicant’s Exhibits (AX) A and B. All exhibits were admitted without objection. DOHA received the hearing transcript on March 31, 2017. Findings of Fact2 In Applicant’s answer to the SOR, he admitted all the allegations. His admissions in his answer and at the hearing are incorporated in my findings of facts Applicant is a 36-year-old aircraft mechanic employed by a defense contractor. He received an associate’s degree from a college of aviation technology in February 2008. He worked as an intern mechanic for two months, and worked in various entry-level, non- aviation jobs until April 2011, when he found work as an aviation mechanic in the private sector. He began working for his current employer in June 2015. He was deployed to a combat area for about six months, and he held an interim clearance while deployed. (Tr. 37-38.) He has never been granted a final clearance. (Tr. 8.) Applicant married in July 2000 and divorced in October 2002. He has a 16-year- old daughter from this marriage, for whom he pays child support. He resided with a cohabitant from March 2008 to July 2016, when they married. They have an infant daughter, and Applicant adopted his wife’s son. (Tr. 50.) The SOR alleges 16 incidents involving criminal conduct. The incidents are alleged under Guideline E and cross-alleged under Guideline J. Applicant admitted all the incidents. The evidence regarding them is summarized below. SOR ¶ 1.a. In October 1998, Applicant was charged with felony burglary and misdemeanor petit theft for stealing a pack of cigarettes from a grocery store. He was convicted of petit theft and sentenced to jail for 11 months and 28 days, probation for two years and a fine. (GX 3 at 15.) SOR ¶¶ 1.b and 1.c. In November 1998 and February 1999, Applicant was convicted of underage alcohol possession, and he was fined each time. (GX 3 at 13-14.) SOR ¶ 1.d. In August 2000, Applicant was convicted of failure to provide proof of insurance and driving without a license. He was fined for the insurance violation and 8, 2017. My decision is based on the guidelines in SEAD 4, referred to in this decision as “AG.” The changes resulting from issuance of SEAD 4 did not affect my decision in this case. 2 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record. 3 sentenced to 30 days in jail, with 28 days suspended for driving without a license. (GX 3 at 12.) SOR ¶ 1.e. In October 2002, Applicant was convicted of a hit-and-run violation and failure to provide proof of insurance. He was sentenced to 30 days in jail, with 28 days suspended. On the same day, he also was charged with a probation violation, and in July 2003 he was fined for the violation.3 (GX 3 at 8-9.) SOR ¶ 1.f. In December 2002, Applicant was charged with failure to provide proof of insurance and driving without a license. The insurance charge was dismissed and he was sentenced to five days in jail for driving without a license.4 (GX 3 at 7.) The SOR also alleges that a warrant was issued in April 2003 when he failed to report for jail, but there is no documentary evidence supporting this allegation. SOR ¶ 1.g. In March 2003, Applicant was convicted of failure to provide proof of insurance and driving with an expired driver’s license and was fined. (GX 3 at 6.) SOR ¶ 1.h. In July 2003, Applicant was convicted of an open-container violation and was fined. (GX 3 at 6.) SOR ¶ 1.i. In February 2004, Applicant was convicted of driving without a license and failure to provide proof of insurance. He was sentenced to 90 days in jail for driving without a license, with 88 days suspended. A warrant was issued in June 2004 when he failed to report for jail. (GX 3 at 5.) SOR ¶ 1.j. In October 2004, Applicant was convicted of driving under the influence (DUI), driving without a license (2nd offense), driving with fictitious license plates, and a probation violation. He was sentenced to 90 days in jail with 88 days suspended for the DUI, 365 days in jail with 345 suspended for driving without a license, and 30 days in jail for the probation violation. A warrant was issued for a probation violation. (GX 3 at 2-4.) SOR ¶ 1.k. In November 2004, Applicant was convicted of driving without a license and without insurance. He was sentenced to 180 days in jail with 160 days suspended. (GX 3 at 1-2.) SOR ¶ 1.l. The SOR alleges that, in February 2008, Applicant was charged with failure to appear in court. There is no documentary evidence supporting this allegation. SOR ¶ 1.m. In April 2009, Applicant was charged with driving on a suspended license. Adjudication was withheld. (GX 4.) 3 SOR ¶ 1.e alleges that Applicant was charged with the probation violation in July 2003 and sentenced to five days in jail. I amended SOR ¶ 1.e to conform to the evidence. 4 SOR ¶ 1.f erroneously alleges that he was convicted of the insurance offense, which was dismissed. 4 SOR ¶ 1.n. In July 2009, Applicant was charged with possession of cocaine. Court records reflect a felony arrest but do not reflect the underlying offense. (GX 5.) Applicant testified that he asked a friend for a ride home, the friend made a cocaine purchase on the way home, and the friend dropped the bag of cocaine into his lap when a police officer approached the car. He was required to undergo drug tests for 30 days and drug counseling, after which the charges were dismissed. (Tr. 61-62; GX 2 at 7.) SOR ¶ 1.o. In March 2011, Applicant was convicted of driving with a suspended license. Court records do not reflect the sentence. (GX 6.) SOR ¶ 1.p. In January 2013, Applicant was charged with driving without a license. Adjudication was withheld. (GX 7.) In November 2016, Applicant hired a lawyer to help him clear the outstanding warrants from his driving record. All show-cause orders were vacated and the bench warrants were quashed for the offenses alleged in SOR ¶¶ 1.f, 1.l, and 1.j. Applicant has held a valid driver’s license since April 2012. (AX A; AX B; Tr. 57.) Applicant testified that his multiple arrests and convictions for driving without a driver’s license and proof of insurance arose because he needed transportation to attend school and go to work. (Tr. 34-36.) His problem was compounded because he could not afford to pay his fines and his driver’s license remained suspended for failure to pay fines. (Tr. 46.) He estimated that he incurred between $5,000 and $6,000 in fines that he could not afford to pay. (Tr. 48.) He did not earn enough money to buy insurance until around 2010. (Tr. 44.) Two of Applicant’s site supervisors from his deployment to Afghanistan submitted letters supporting his application for a clearance. They regard him as responsible, mature, skilled, and dedicated. A former employer, for whom he worked as an aircraft technician, describes him as intelligent, caring, conscientious, and a strong leader. 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. 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, 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 5 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). Analysis Guideline E, Personal Conduct The concern under this guideline 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 6 ability to protect classified or sensitive information. . . .” The following disqualifying conditions are established by Applicant’s record of arrests and convictions: AG ¶ 16 (c): credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information; and AG ¶ 16(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 individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of: . . . a pattern of dishonesty or rule violations. The relevant mitigating condition under this guideline is AG ¶ 17(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.” Most of Applicant’s offenses were minor traffic offenses, but they were numerous and did not occur under unique circumstances. Applicant’s last arrest was in January 2012, more than five years ago. Since that arrest, he has held a steady and responsible job, deployed to a combat zone for six months, held an interim security clearance while deployed, earned the respect of his supervisors, married, and resolved all his outstanding arrest warrants and fines. I conclude that AG ¶ 17(c) is established. Guideline J, Criminal Conduct The SOR cross-alleges the conduct discussed above. The concern under this guideline 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 record of arrests and convictions establishes the following disqualifying conditions: AG ¶ 31(a): a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness; and 7 AG ¶ 31(b): evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted. The following mitigating conditions are established, for the reasons set out in the above discussion of Guideline E: 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; and AG ¶ 32(d): there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. Whole-Person Concept At the hearing, Applicant was candid, sincere, credible and remorseful for his irresponsible past. He has matured and outgrown his irresponsible youth. He is enthusiastic about his work. Under AG ¶¶ 2(a), 2(c), and 2(d), 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. After weighing the disqualifying and mitigating conditions under Guidelines E and J, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns raised by his personal conduct and criminal conduct. Accordingly, I conclude he has carried his burden of showing that it is clearly consistent with the national security interests of the United States to grant him eligibility for access to classified information. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline E (Personal Conduct): FOR APPLICANT Subparagraphs 1.a-1.p: For Applicant Paragraph 2, Guideline J (Criminal Conduct): FOR APPLICANT Subparagraph 2.a: For Applicant 8 Conclusion I conclude that it is clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is granted. LeRoy F. Foreman Administrative Judge