1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01829 ) Applicant for Security Clearance ) Appearances For Government: Bryan J. Olmos, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ LOUGHRAN, Edward W., Administrative Judge: Applicant did not mitigate the sexual behavior, personal conduct, and criminal conduct security concerns. Eligibility for access to classified information is denied. Statement of the Case On July 27, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines D (sexual behavior), E (personal conduct), and J (criminal conduct). Applicant responded to the SOR on August 16, 2016, and requested a hearing before an administrative judge. The case was assigned to me on January 18, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on March 1, 2017, scheduling the hearing for April 6, 2017. The hearing was convened as scheduled. Government Exhibits (GE) 1 through 6 were admitted in evidence without objection. Applicant testified, but he did not submit any documentary evidence. Post-hearing, he submitted documents that I have marked Applicant’s Exhibits (AE) A through C and admitted without objection. DOHA received the hearing transcript (Tr.) on April 19, 2017. 2 Findings of Fact Applicant is a 45-year-old employee of a defense contractor. He has worked for his current employer since 2015. He attended college for a period without earning a degree. His two marriages ended in divorce. He has five children.1 Applicant enlisted in the U.S. military in 1990, when he was 18 years old. He married his first wife in 1992, shortly before his 20th birthday. Applicant and his first wife had marital difficulties. On at least two occasions in late 1992, Applicant and his wife’s 15-year-old friend engaged in sexual activities, which included sexual intercourse. Applicant knew the girl was 15 years old.2 Applicant was charged in state court with the felony crime of third-degree rape, which is in essence statutory rape. He pleaded guilty in May 1993. He was sentenced to a $1,000 fine, plus court costs and restitution for the victim’s counseling costs; 180 days in the county jail; and probation for four years. The court order checked the block that indicated “Deferred Imposition of Sentence.” Applicant was ordered to be “remanded to the Sheriff to be incarcerated in jail July 12, 1993.” He served about five months in jail.3 Applicant receive an other than honorable discharge from the military because of his civilian charge. He moved to his current state of residence after he was released from jail. He was permitted to serve his probation in his current state. He is required by his state to annually register as a sex offender.4 Applicant was arrested in 2009 and charged with criminal damage and disorderly conduct-fighting. He stated that he and his second wife were arguing when he pulled the television out by the cord, breaking the television. Applicant attended anger- management classes, and the charges were dismissed as part of a deferred adjudication.5 Applicant believes that the third-degree rape conviction was dismissed after his probation as part of a “deferred imposition.” He submitted information from the state where he was convicted about judicial sealing and expungement.6 The information provides as follows: 1 Tr. at 23-25, 28, 43-44; GE 1, 2. 2 Tr. at 15-21; Applicant’s response to SOR; GE 1, 2, 5. 3 Tr. at 21; Applicant’s response to SOR; GE 2; AE B. 4 Tr. at 21, 33-43; Applicant’s response to SOR; GE 2-4, 6. 5 Tr. at 34; GE 2-4. This incident was not alleged in the SOR and will not be used for disqualification purposes. It may be considered in the application of mitigating conditions and in the whole-person analysis. 6 Tr. at 36; Applicant’s response to SOR; GE 2; AE A. 3 Under section [redacted] (felony) and [redacted] (misdemeanor) of the [State] Code, a court may suspend imposition of sentence and place on probation a person with no prior convictions. Upon successful completion of sentence, the person is discharged without an adjudication of guilt [redacted], and the court “shall order” that the records be sealed.7 It is unclear whether Applicant received a suspended imposition of sentence as addressed above, or his sentence was simply deferred until he was remanded to jail. The state statute cited in Applicant’s exhibit states: Upon completion of the observance of all conditions imposed pursuant to [redacted], the court services officer assigned to defendant’s case shall bring the matter to the attention of the court, whereupon the defendant shall be discharged by the court. A formal entry of such discharge shall be entered by the clerk of courts. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Applicant submitted his judgment and sentence record, but he did not submit any subsequent orders from the court. He testified that he had a letter from the judge stating that his rights were restored because of the deferred imposition, but he lost the letter in a fire. The FBI identification record not does report the third-degree rape arrest, charge, or conviction.8 Applicant does not believe he would have been required to register as a sex offender if he remained in the state where the crime occurred because of the deferred imposition. He stated that he is working with his local sheriff’s department and his state’s department of safety to show cause as to why he should not have to register as a sex offender.9 Applicant expressed appropriate remorse for his actions. He revealed his sex- offender status before he volunteered to coach in a youth league when his child was young. He was permitted to coach. His employer and his current girlfriend are aware of his status, but his two immediate supervisors are not.10 Policies This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 7 AE C. 8 Tr. at 36-37; GE 3. 9 Tr. at 20-22, 39-40; Applicant’s response to SOR; GE 2; AE A. 10 Tr. at 20-22, 27-28, 30; Applicant’s response to SOR. 4 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on June 8, 2017.11 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 to be 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, administrative judges apply the guidelines 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(a), 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 national security eligibility will be resolved in favor of the national security.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse 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). 11 The SOR was issued under the previous adjudicative guidelines. I have utilized the current adjudicative guidelines as required. However, my ultimate decision would be the same under either set of guidelines. 5 Analysis Guideline D, Sexual Behavior The security concern for sexual behavior is set out in AG ¶ 12: Sexual behavior that involves a criminal offense; reflects a lack of judgment or discretion; or may subject the individual to undue influence of coercion, exploitation, or duress. These issues, together or individually, may raise questions about an individual’s judgment, reliability, trustworthiness, and ability to protect classified or sensitive information. Sexual behavior includes conduct occurring in person or via audio, visual, electronic, or written transmission. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual. AG ¶ 13 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable: (a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted; (c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress; and (d) sexual behavior of a public nature and/or that reflects lack of discretion or judgment. Applicant committed the felony crime of third-degree rape. He is required by his state to annually register as a sex offender. His behavior reflected a severe lack of judgment and made him vulnerable to coercion, exploitation, and duress. The above disqualifying conditions have been established. Conditions that could mitigate sexual behavior security concerns are provided under AG ¶ 14. The following are potentially applicable: (b) the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and (c) the behavior no longer serves as a basis for coercion, exploitation, or duress. It has been almost 25 years since Applicant’s crime of third-degree rape. He stated that the charge was dismissed as part of a deferred imposition and that he would not have been required to register as a sex offender if he remained in the state where 6 the crime occurred. The FBI identification record is some evidence that the charge was dismissed, but it is not a substitute for the actual court records. In any event, Applicant is still required by his state to annually register as a sex offender. The conduct continues to cast doubt on Applicant’s current reliability, trustworthiness, and good judgment.12 AG ¶ 14(b) is not applicable. Applicant has lessened, but not eliminated, his vulnerability to coercion, exploitation, and duress. AG ¶ 14(c) is partially applicable. I find that sexual behavior concerns remain despite the presence of some mitigation. Guideline J, Criminal Conduct The security concern for criminal conduct is set out in AG ¶ 30: Criminal activity creates doubt about an Applicant’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 conditions that could raise a security concern and may be disqualifying. The following is potentially applicable: (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. Applicant committed the felony crime of third-degree rape. The above disqualifying condition is applicable. Conditions that could mitigate criminal conduct security concerns are provided under AG ¶ 32. The following 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; and (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. Applicant’s record has been reasonably, but not completely, clean since his criminal conduct almost 25 years ago. Nonetheless, I have unmitigated concerns under the same rationale discussed in the sexual behavior analysis. 12 See ISCR Case No. 09-03233 (App. Bd. Aug. 12, 2010). The Appeal Board determined that an applicant’s child molestation offense “even though it occurred long ago, impugn[ed] his trustworthiness and good judgment.” 7 Guideline E, Personal Conduct The security concern 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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during the national security investigative or adjudicative processes. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable: (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 (e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes: (1) engaging in activities which, if known, could affect the person’s personal, professional, or community standing. Applicant committed third-degree rape, which is in essence statutory rape. He carries the stigma of having to annually register as a sex offender. His conduct reflects questionable judgment and an unwillingness to comply with rules and regulations. It also created vulnerability to exploitation, manipulation, and duress. AG ¶ 16(e) is applicable. AG ¶ 16(c) is not perfectly applicable because Applicant’s conduct is sufficient for an adverse determination under the sexual behavior and criminal conduct guidelines. However, the general concerns about questionable judgment and an unwillingness to comply with rules and regulations contained in AG ¶¶ 15 and 16(c) are established. SOR ¶ 1.c alleges that Applicant is “currently a registered sexual offender due to [his] conviction as set forth in subparagraph 1.a, above.” SOR ¶ 1.b alleges that Applicant was discharged from the military under other than honorable conditions “due to [his] conviction as set forth in subparagraph 1.a, above.” SOR ¶¶ 1.a and 1.b do not allege any conduct that is not alleged in SOR ¶ 1.c. When the same conduct is alleged twice in the SOR under the same guideline, one of the duplicative allegations should be 8 resolved in Applicant’s favor. See ISCR Case No. 03-04704 (App. Bd. Sep. 21, 2005) at 3. SOR ¶¶ 1.a and 1.b are concluded for Applicant. AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable: (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 contributed to 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. Under the same rationale discussed above for sexual behavior and criminal conduct, I find that Applicant’s conduct continues to cast doubt on his current reliability, trustworthiness, and good judgment. I find that personal conduct concerns remain despite the presence of some mitigation. 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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): (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. 9 I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline, D, E, and J in my whole-person analysis. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the sexual behavior, personal conduct, and criminal conduct security concerns. 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 E: Against Applicant Subparagraphs 1.a-1.b: For Applicant Subparagraph 1.c: Against Applicant Paragraph 2, Guideline D: Against Applicant Subparagraph 2.a: Against Applicant Paragraph 3, Guideline J: Against Applicant Subparagraph 3.a: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Edward W. Loughran Administrative Judge