1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Named Redacted] ) ISCR Case No. 15-08246 ) ) Applicant for Security Clearance ) Appearances For Government: Chris Morin, Esquire, Department Counsel For Applicant: Alan V. Edmunds, Esquire ______________ Decision ______________ HOGAN, Erin C., Administrative Judge: On November 16, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline B, Foreign Influence, and Guideline E, Personal Conduct. The action was initially taken under Executive Order 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 within the Department of Defense on September 1, 2006. On June 8, 2017, the AGs were updated and cancelled the AGs effective September 1, 2006. This decision will be decided based on the new AGs effective on June 8, 2017. If I were to consider this case under the AGs effective September 1, 2006, it would result in the same outcome. On December 19, 2016, Applicant timely answered the SOR and requested a hearing before an administrative judge. Department Counsel was ready to proceed on January 30, 2017. The case was assigned to another administrative judge on March 21, 2017, and transferred to me on May 17, 2017. On May 17, 2017, a Notice of Hearing was issued, scheduling the hearing for June 20, 2017. The hearing was held as scheduled. During the hearing, the Government offered six exhibits, which were admitted without objection as Government (Gov) Exhibits 1 - 6. Applicant offered 13 2 exhibits, which were admitted as Applicant Exhibits (AE) A - M, without objection. The Government requested administrative notice be taken of certain facts regarding the country of Pakistan. The administrative notice document was marked as Administrative Notice Document (Admin Not) I. Applicant did not object to the administrative notice documents. The transcript was received on June 28, 2017. Based upon a review of the case file, pleadings, and exhibits, eligibility for access to classified information is denied. Administrative Notice – Pakistan The facts administratively noticed are limited to matters of general knowledge and matters not subject to reasonable dispute. Pakistan continues to have serious human rights problems including extrajudicial and targeted killings, disappearances, torture, lack of rule of law (including lack of due process, poor implementation and enforcement of laws, frequent mob violence and vigilante justice, and sectarian violence). Government and police corruption as well as rape, domestic violence, sexual harassment, honor crimes, and discrimination against women and girls remain serious problems. Lack of government accountability is a problem. Abuses often went unpunished fostering a culture of impunity. Authorities seldom punish government officials for human rights violations. (Admin Not 1) In 2015, an assortment of terrorist groups attempted to hide or operate from portions of Pakistan’s Federally Administered Tribal Areas, a mountainous region along Pakistan’s northwest border with Afghanistan. Pakistan launched military operations to eradicate terrorist safe havens, although their impact was uneven. As of February 2015, the U.S. State Department warned U.S. citizens to defer all non-essential travel to Pakistan, because the presence of several foreign and indigenous terrorist groups poses a potential danger to U.S. citizens throughout Pakistan. Further concerns about Pakistan include the potential for weapons of mass destruction, trafficking, and proliferation. (Admin Not 1) Findings of Fact In his answer to the SOR, Applicant partially admits the allegations in SOR ¶¶ 1.a, 2.a, and 2.c. He partially admits the allegation in SOR ¶ 1.b, and denies the allegations in SOR ¶¶ 1.c and 2.b. Applicant is a 25-year-old linguist who is a potential employee of a Department of Defense contractor and is reapplying for a security clearance. His employment is contingent on receiving a security clearance. He is working on his general equivalency degree (GED). He is married and has two daughters, ages four and six months. (Note: The facts in this decision do not specifically describe employment, names of witnesses, or locations in order to protect Applicant and his family’s privacy. The cited sources contain more specific information.) 3 Foreign Influence Applicant was born in Pakistan. In 1995, at the age of three, Applicant moved to the United States with his siblings to live with his father who was already in the United States. He became a United States citizen in April 2000 by virtue of his father’s naturalization. He has a U.S. passport. He does not have a Pakistani passport. All of his immediate family members are United States citizens with the exception of his mother and wife. His mother and wife are citizens of Pakistan and are permanent residents in the United States. His wife is in the process of applying for citizenship. She has lived in the U.S. since 2012. His two daughters are citizens of and reside in the United States. (Tr. 21-26, 36, AE H, AE I) Applicant’s mother-in-law is a citizen and resident of Pakistan. His father-in-law is a citizen of Pakistan, who works and resides in Sweden. He speaks to his in-laws about once a year. They do not know what he does for a living. His wife talks to her mother about once or twice a month by telephone. The last time she saw her mother was in 2013 when she traveled to Pakistan to visit her. His wife talks to her father about once a year. Neither Applicant or his wife own any property in Pakistan. They also do not have any open bank or financial accounts in Pakistan. (Tr. 23, 25, 27, 36-39) In addition to her mother, Applicant’s wife has four sisters and a brother who are citizens and residents of Pakistan. Applicant also has two brothers-in-law and two friends who are citizens and residents of Pakistan. He has two friends who are citizens and residents of Pakistan. Applicant indicated that he had quarterly contact with his wife’s relatives and friends in Pakistan when he completed his most recent security clearance application in September 2015. During the hearing and in response to the SOR, Applicant claimed that he no longer has frequent contact with any of his wife’s relatives or his friends who are citizens and residents of Pakistan. (Tr. 40-46; Gov 1; Answer to SOR) Personal Conduct The SOR alleges that Applicant falsified substantive facts on his June 27, 2011, July 6, 2011, and October 3, 2013 security clearance applications by failing to list an arrest in response to Section 22: Police Record. He failed to list a 2008 arrest for possession of a weapon (a knife) in a school zone in 2008. (SOR ¶¶ 1.f, 1.h, 1.i: Gov 2 at 3; Gov 3 at 26; Gov 4 at 30) Applicant was a teenager at the time. He and a friend skipped school and were hanging out near another school. They were approached by a police officer who asked them why they were not in school during school hours. Applicant testified it was a school security officer. A search was conducted and a knife was found on Applicant’s person. The security officer drove Applicant home. Applicant did not attend a court hearing. His father attended a meeting on his behalf. Applicant is not sure that he was arrested. (Tr. 29-31, 49) In his Response to the SOR, Applicant admitted that he omitted his 2008 arrest for possession of a weapon (knife) in a school zone. He states: 4 I admit that I did put “No” when I should have put “yes”. This incident happened in 2008, and I didn’t think I had to disclose that information since I was a minor. I was arrested because I had a small pocket knife in my pocket. I again was young and scared that this would hurt my career. At the time of filling out the SF-86, I did not fully understand this process, and did not think that this would be used against me. I regret making a decision to falsify the document, however, this happened over three years ago and I will not make this mistake in the future.” (Response to SOR, paragraphs 2.f, 2.h, and 2.i) The SOR also alleged that Applicant intentionally lied about the details related to his 2008 arrest for possession of a weapon (knife) in a school zone during two separate screening interviews, which occurred in July 2011 and October 2013. (SOR ¶¶ 2.b, 2.c: Gov 5; Gov 6) In his response to the SOR, Applicant denied that he lied about the details of his 2008 arrest during his 2013 interview. (SOR ¶ 2.b) He claims he told the interviewer about the arrest. A summary of the interview corroborates that he disclosed the 2008 arrest during the 2013 interview. During the interview, Applicant could not recall the specific details. I do not find the faulty details he provided during the interview to be material. He told the Government about his 2008 arrest. SOR ¶ 2.b is found for Applicant. (See Gov 5. I also note that Gov 5 is an unsworn summary of what took place during the interview. For this reason, I give it less weight.) Applicant admits to intentionally omitting the 2008 arrest during his July 2011 security screening interview. (SOR ¶ 2.c) He states: In 2011 I was young and very new to this security clearance process. I did not fully understand my actions would affect my security clearance. During the interview I was very scared to tell the truth. I was immature, and did not understand the seriousness of this situation. I truly regret that I lied about this. Now that I am fully aware of this process, this behavior will not recur in the future. (Response to SOR, paragraph 2.c) From July 2011 to February 2012, Applicant worked for a DOD contractor as a linguist in Afghanistan. He testified that he had a security clearance at the time. In February 2012, Applicant was fired after failing a drug test. He claims he borrowed a cigarette from one of his fellow linguists, which, unbeknownst to him was laced with an illegal drug, possibly hashish. Several days later, Applicant’s company had all employees undergo a drug test. Applicant’s urine tested positive for illegal drugs and he was sent home and his security clearance was suspended. (SOR ¶ 2.a: Tr. 28-29, 46; Gov 1, section 13A(4)) Applicant is alleged to have deliberately falsified material facts on a security clearance application, dated October 3, 2013, in response to questions in Section 13A – Employment Activities. (SOR ¶¶ 2.d, 2.e) In response to the statement: “Provide the reason for leaving the employment activity.” Applicant stated that he “. . . had worked for awhile and needed to come back to my family.” He deliberately failed to disclose that he was fired by his employer for failing a drug test. He also failed to disclose this information in response to the additional questions under Section 13A, “For this 5 employment have any of the following happened to you in the last seven (7) years? Fired. Quit a job after being told you were fired . . . .” (Gov 2 at 11) Applicant also deliberately falsified his October 3, 2013 security clearance application in response to Section 23: Illegal Use of Drugs or Drug Activity: Have you EVER illegally used or otherwise been involved with a drug or controlled substance while possessing a security clearance other than previously listed?” Applicant answered, “No” and omitted his 2012 positive drug test which occurred while he possessed a security clearance. (SOR ¶ 2.g: Gov 2, section 23) In his response to the SOR, Applicant admitted to the allegations in SOR ¶¶ 2.d, 2.e and 2.g, pertaining to his deliberate omission of his termination as a linguist in Afghanistan after a positive drug test. He indicates that he was concerned about his future so he did not disclose the fact that he was fired and that he “involuntarily” used drugs. He regrets not being fully truthful and states that this behavior will not recur in the future. He is a very honest man who truly regrets the mistake he made. (Response to SOR ¶¶ 2.d, 2.e, and 2.g) During the hearing, Applicant testified that while he was working in Afghanistan, another linguist gave him a cigarette. The cigarette had some sort of controlled substance in it, possibly hashish. The next day Applicant’s company had a company drug test. Applicant tested positive for illegal drugs, was fired, and sent back to the United States. Applicant was 19 at the time. He has not used any illegal drugs since that time. (Tr. 28-29, 47) When asked why he failed to list that he was fired for failing a drug test on his October 2013 security clearance applications, Applicant initially claimed that he made a mistake. He found completing the e-QIP to be overwhelming. He also testified: “I’m sorry. I made a mistake. I was thinking it might harm my situation.” (Tr. 33) Under cross- examination, he testified: “All right. So, that was the only reason. And also, I was scared that I might lose my job.” (Tr. 48) “I was actually also hurt by the mistake I made in my life. And I was really ashamed to put it in my records, on my SF-86.” (Tr. 52) Applicant said that his conduct will never happen again. It is noted that he listed that he was fired because he failed a drug test in February 2012, on his most recent security clearance application dated September 22, 2015. (Gov 1, Section 13 A.4) Whole-person Factors Applicant provided several letters of recommendation. A U.S. Army Warrant Officer writes that Applicant was assigned to his special operations team from mid 2011 to early 2012. Applicant served as an interpreter supporting U.S. Special Forces operations alongside Afghan commandos and Afghan local police. He states Applicant was one of the best interpreters he worked with in Afghanistan. Applicant was competent in several languages and was committed to the mission. He recommends him for any interpreter position. (AE D) A Sergeant First Class states Applicant performed his duties in an excellent and professional manner. Applicant’s unique language skills and knowledge of the area 6 were essential to mission success. Applicant supported multiple operations in remote and dangerous locations. He displayed good tactical sense and ability while operating in a physically challenging and dangerous terrain. The Sergeant First Class states Applicant’s ability to accurately translate from the target language to English enabled the special forces team to pass time-sensitive information related to force protection and early warning to the ground force commander. He highly recommends Applicant, stating that he would be an asset to any team. (AE D) Mr. A. has been a personal friend with Applicant since 2011. They get together several times a year to play sports. Applicant has invited him over to his home several times and he has gotten to know other members of Applicant’s family. He is impressed with Applicant’s maturity and honesty. He states Applicant’s family and friends are important to him. He believes Applicant has a strong character and he would recommend him for any role. Another fellow cricket player, his current supervisor, and a former supervisor provided favorable recommendations about Applicant’s work ethic, trustworthiness, and character. (AE D; AE M) Applicant provided numerous photos of his family as well as his sports teams. He is an avid cricket player. (AE E; AE L) Applicant took a urinalysis on May 19, 2017. The results were negative for amphetamines, marijuana, phencyclidine, cocaine and opiates. (AE F) He also provided a notarized statement of intent to never use illegal drugs in the future. (AE J) Applicant provided a copy of his U.S. passport (AE H), and his wife’s permanent resident card. (AE I) He also provided a notarized statement of intent to never obtain a foreign passport or foreign citizenship. He also pledges to have minimal or no contact with foreign contacts outside of his official duties. (AE K) Applicant also attempted to obtain a copy of the records related to his 2008 arrest. The Court did not find any records because all juvenile records are destroyed when the juvenile turns 18. (AE G) Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over arching 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. 7 The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access for national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. 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 applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion as to obtaining 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 that the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order (EO) 10865 provides that 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). Analysis GUIDELINE B: Foreign Influence AG ¶ 6 explains the Government’s concern under Foreign Influence: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism. AG ¶ 7 lists conditions that could raise a security concern and may be disqualifying. The following are applicable to Applicant’s case: 8 (a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology. In Applicant’s case, AG ¶ 7(a) and AG ¶ 7(b) apply. The mere possession of close family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B. However, if only one relative lives in a foreign country and an applicant has contacts with that relative, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001). Applicant’s parents-in-law and sisters- in-law are citizens and residents of Pakistan. His relationship with his wife’s family creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion because Pakistan is a known haven for terrorist groups and has serious human rights problems. Applicant’s contacts with his in-laws in Pakistan also create a potential conflict of interest between his obligation to protect classified information and his desire to help his family members by providing that information. The Government produced substantial evidence of disqualifying conditions AG ¶¶ 7(a) and 7(b) as a result of Applicant’s admissions and evidence presented. The burden shifted to Applicant to produce evidence and prove a mitigating condition. The burden of disproving a mitigating condition never shifts to the Government. AG ¶ 8 lists conditions that could mitigate security concerns. The following mitigating conditions potentially apply: (a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States; (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; and 9 (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; I find AG ¶ 8(a) and AG ¶ 8(b) apply to Applicant’s case. It is clear that Applicant’s wife has ties of affection and obligation to her siblings who reside in Pakistan. However, it is unlikely Applicant will have to choose between the interests of his in-laws and the interests of the United States. Applicant is not close to his in-laws. He speaks with them about once a year. All of his immediate family members reside in the United States and are all U.S. citizens with exception of his wife and mother. Both are permanent residents of the U.S. and his wife is in the process of applying for U.S. citizenship. Applicant’s immediate family members (his wife and two daughters) reside with him in the United States. All of their assets are in the United States. AG ¶ 8(b) applies because Applicant has deep and longstanding ties in the United States. Applicant has lived in the United States since 1995 when he immigrated at the age of three with his family. He became a U.S. citizen in 2000. His professional life has been in the United States with the exception of his six-month deployment to Afghanistan. Two U.S. Army personnel who worked with Applicant said he did an excellent job as an interpreter and worked along-side them in dangerous conditions. Applicant can be expected to resolve any conflict in favor of U.S. interests based on his longstanding ties in the United States. Security concerns under Foreign Influence are mitigated. GUIDELINE E: Personal Conduct AG ¶ 15 explains the Government’s concern under 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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The following will normally result in an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility: (a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, cooperation with medical or psychological evaluation, or polygraph examination, if authorized and required; and (b) refusal to provide full, frank, and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination. 10 AG ¶16 lists conditions that could raise a security concern and may be disqualifying. The following apply to Applicant’s case: (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 national security eligibility or trustworthiness, or award fiduciary responsibilities; (b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative; (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; (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: (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information; (2) any disruptive, violent, or other inappropriate behavior; (3) a pattern of dishonesty or rule violations; and (4) evidence of significant misuse of Government or other employer's time or resources; and (e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress by a 11 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; (2) while in another country, engaging in any activity that is illegal in that country; (3) while in another country, engaging in any activity that, while legal there, is illegal in the United States. AG ¶ 16(a) applies to Applicant’s deliberate omission of relevant facts on his security clearance applications completed on June 27, 2011, July 6, 2011, and October 3, 2013, pertaining to his arrest history, wherein he failed to list his 2008 arrest for possession of a weapon (knife) in a school zone, as well his deliberate failure to disclose on his October 2013 security clearance application that he was fired in March 2012 from a DOD Contractor position as a linguist for failing a drug test, as well his use of said illegal drug while holding a security clearance. Applicant admits that he deliberately provided false information on his security clearance applications. He claims he was not familiar with the security clearance process but admits he was concerned about his future, so he deliberately left off the adverse information on his security clearance applications. AG ¶ 16(b) applies with regards to Applicant’s intentional omission of his 2008 arrest for possession of a weapon (knife) ins a school zone during his 2011 security clearance screening interview. (SOR ¶ 2.c) In his response to the SOR, Applicant states he was young and very new to the security clearance process and did not understand how his actions would affect his security clearance. He was immature and very afraid to tell the truth. He regrets that he lied and claims the behavior will not recur in the future. I find SOR ¶ 2.b for Applicant. He admitted to the arrest during his 2013 security clearance screening interview. He did not recall the details, but I find his initial incorrect assertions to be immaterial. AG ¶ 16(c) applies with response to Applicant’s illegal drug use while possessing a security clearance. (SOR ¶ 2.a) Applicant was employed as a linguist in a deployed location when he tested positive for illegal drugs in 2012. Although more than five years have passed since the incident, it still raises questions about Applicant’s judgment, trustworthiness and reliability. It is also demonstrates an unwillingness to comply with rules and regulations and raises questions about Applicant’s ability to safeguard classified information. AG ¶ 16(d) applies because Applicant’s multiple falsifications during his security clearance process shows “a pattern of dishonesty or rule violations.” AG ¶ 16(e)(1) and AG ¶ 16(e)(3) apply because Applicant’s illegal drug use and his subsequent attempted concealment about his illegal drug use and termination makes him vulnerable to exploitation, manipulation, or duress by a foreign intelligence entity or other individual groups. 12 Applicant has the burden to present mitigating evidence. AG ¶ 17 lists conditions that could mitigate security concerns under Personal Conduct. The mitigating factors that apply to Applicant’s case include: (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 advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. 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 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. Of the mitigating factors under Personal Conduct, only AG ¶ 17(e) applies because Applicant admits his past conduct and subsequent deliberate falsifications. He also listed the 2012 firing for testing positive for illegal drug use on his most recent security clearance application in September 2015. However, Applicant’s admissions and disclosures do not fully mitigate his past conduct to include deliberate falsifications. Applicant lied repeatedly about the circumstances related to his 2008 arrest for possession of a weapon in a school zone and about his termination from his linguist position overseas after failing a drug test. This was an issue that could be readily discovered during his background investigation, but Applicant lied about it repeatedly on his October 2013 security clearance application. Questions about Applicant’s reliability, trustworthiness, and judgment remain. None of the other mitigating conditions apply. 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): 13 (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. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I considered Applicant moved to the United States at the age of three with his family. He became a citizen in 2000. His wife and mother are permanent U.S. residents. The rest of Applicant’s immediate family members are citizens and residents of the United States. His wife and two children reside in the United States. His wife is in the process of applying for U.S. citizenship. He mitigated foreign influence concerns because he has limited contact with his wife’s in- laws who are citizens of and reside in Pakistan and Sweden. I considered Applicant’s favorable character references. In particular, the references of two U.S. Army Special Forces Team members who attested to Applicant’s interpreter skills and the value he provided to the mission, sometimes under dangerous conditions. Several of Applicant’s supervisors and friends have attested to his good character and work ethic. The photos indicate that Applicant is a dedicated father and family man. However, Applicant’s unfavorable factors outweigh his favorable factors. He chose to use illegal drugs while in Afghanistan, which cost him his job after testing positive for illegal drugs. He possessed a security clearance at the time of his illegal drug use. He then deliberately lied about this incident on a subsequent security clearance application in 2013. Applicant had previously lied about his 2008 arrest for possession of a weapon in a school zone on previous security clearance applications and during his background interview in 2011. The 2008 incident itself did not raise much concern, it was the deliberate and repeated lies about it that raised concerns about Applicant’s trustworthiness and reliability. Applicant’s decision to use illegal drugs while working as a linguist in Afghanistan and his deliberate falsifications about it on his 2013 security clearance application continues to raise questions about his judgment, trustworthiness, and reliability. Security concerns remain under Personal Conduct. 14 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 B: FOR APPLICANT Subparagraphs 1.a -1.c: For Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraph 2.a, 2.c- 2.i: Against Applicant Subparagraph 2.b: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. _________________ ERIN C. HOGAN Administrative Judge