1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 16-00134 ) Applicant for Security Clearance ) Appearances For Government: Robert B. Blazewick, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guidelines J (Criminal Conduct) and E (Personal Conduct). Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a security clearance application on March 23, 2015. On June 15, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent her a Statement of Reasons (SOR) alleging security concerns under Guideline J and E. The DOD CAF acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006.1 1 Security Executive Agent Directive 4 (SEAD 4), was issued on December 10, 2016, revising the 2006 adjudicative guidelines for all adjudicative decisions issued on or after June 8, 2017. The changes resulting from issuance of SEAD 4 did not affect my decision in this case. 2 Applicant answered the SOR on August 11, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 17, 2016, and the case was assigned to me on April 7, 2017. On May 11, 2017, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for June 8, 2017. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 8 were admitted in evidence without objection. Applicant testified, and submitted Applicant’s Exhibits (AX) L and M,2 which were admitted without objection. DOHA received the transcript (Tr.) on June 16, 2017. Findings of Fact3 In her answer to the SOR, Applicant admitted the allegations in SOR ¶¶ 1.e, 1.f, and 2.a in part and denied all the other allegations. Her admissions in her answer and at the hearing are incorporated in my findings of fact. Applicant is a 43-year-old merchant mariner employed by a defense contractor since March 2001. She has worked for defense contractors as a merchant mariner since August 2000. She worked as a federal civilian employee from February 2000 to August 2000. Her application for a security clearance was denied in May 2007. Applicant took college classes from May 1995 to May 1997 but did not receive a degree. She married in August 2003 and has an adult stepchild. Her husband began serving as a merchant mariner about two years ago. (Tr. 30, 45.) Applicant’s mother was a single parent, who served 20 years on active duty in the Army and retired as a sergeant first class (pay grade E-7). After retiring from the Army, her mother was employed by a DOD agency, from which she is about to retire. (Tr. 29.) Applicant accompanied her mother on an overseas assignment from November 1993 to July 1995. (AX E.) She was employed by the post exchange at her mother’s place of duty and was awarded a “Certificate of Professional Achievement” in March 1994 for her performance as a sales associate. (AX H.) Applicant usually spends six or seven months a year at sea. She is at sea for three or four months, home for two or three months, and then back at sea for another three or four months. (Tr. 44.) Between May 2005 and June 2016, she completed ten tours of duty at sea. (AX J.) She testified that she is passionate about her job and strives to be a valuable asset to her employers. (Tr. 33.) Her most recent performance evaluation rated her as “excellent” (the highest rating) in all seven rating categories. (AX F.) A chief engineer, second mate, and several mariners who have sailed with her submitted letters of recommendation, describing her as a team player, knowledgeable, hardworking, polite, respectful, and eager to learn. One of her supervisors commented 2 Applicant’s answer to the SOR included Applicant’s Exhibits A through K. For simplicity, I continued the alphabetical lettering in the answer for the two documents submitted at the hearing. 3 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record. 3 that she is vivacious and “capable of lifting the mood of any room she enters.” She has a “contagious personality” and is an excellent mentor for new mariners. Several personal friends also submitted letters describing her as trustworthy, honest, dependable, reliable, and “an asset to any organization.” (AX G.) The SOR alleges eight incidents of criminal conduct in Guideline J and cross- alleges the same conduct under Guideline E. The evidence concerning each allegation is summarized below, in chronological order. SOR ¶ 1.h. In December 1993, when Applicant was a 20-year-old military family member assigned overseas, she was accused of striking another person at a dance in a military social facility. A DA Form 4833, “Commander’s Report of Disciplinary or Administrative Action,” reflected that an Army battalion commander ordered Applicant to perform 30 hours of community service for an assault consummated by a battery. (GX 7.)4 In her answer to the SOR, Applicant stated that she had no knowledge of this incident. SOR ¶ 1.g. Another DA Form 4833 reflects that, in July 1994, Applicant was accused of making a false official statement, apparently accusing her mother of assaulting her. No action was taken because of insufficient evidence. (GX 8.) In her answer to the SOR, Applicant stated that she had no knowledge of this incident. SOR ¶ 1.f. In December 1996, Applicant was charged with grand larceny, a felony. She and an old friend went to a department store so that Applicant could return an item she had purchased. While she was waiting in line to return the item, her friend stole some clothing. As they were both departing the store, Applicant was carrying the bag with the stolen clothing in it, and they were both charged with shoplifting. Applicant pleaded guilty to petty larceny, a misdemeanor, and was sentenced to a fine, community service, and restitution. (GX 5 at 2; GX 6; AX L at 6.) SOR ¶ 1.e. In March 1999, Applicant shoplifted some makeup from a drug store and was charged with petty larceny, a misdemeanor. She was convicted and sentenced to 75 hours of community service. (GX 5 at 1.) SOR ¶ 1.d. In February 2005, Applicant was charged with destruction of property by “keying” her husband’s ex-girlfriend’s car. (GX 4 at 2.) Applicant denied the charge, which she attributed to jealousy and vindictiveness. She testified that her husband and the ex-girlfriend had been together for eight years and had five children. About two months after Applicant’s husband and his then girlfriend broke up, Applicant and her now husband began dating, and they married eight months later. (Tr. 46-47, 54.) Applicant testified that she was convicted but not given any punishment. (Tr. 48-49, 56.) There is no documentary evidence of a conviction or sentence in the record. 4 Military commanders do not have authority to impose punishment on civilian family members and did not have such authority in 1993. It is likely that the commander used this document to reflect a counseling session with Applicant and her mother. 4 SOR ¶ 1.c. In July 2011, Applicant was charged with using threatening or vulgar language on the telephone. She denied the charge. She testified that her husband had an affair while she was at sea. She found out about it and told the woman’s boyfriend about the affair. The woman began harassing Applicant by telephone. Applicant told the woman that she would contact the police if she received any more harassing telephone calls. The woman accused Applicant of making threatening telephone calls, and a warrant was issued for Applicant’s arrest. Applicant was unaware of the warrant until she was arrested for driving under the influence (DUI) and driving on a suspended license, alleged in SOR ¶¶ 1.a and 1.b. (Tr. 43-44.) Applicant appeared in court with an attorney and was prepared to contest the charge, but her accuser failed to appear. The charge was dismissed. (AX D; AX L at 5.) SOR ¶¶ 1.a and 1.b. In December 2012, Applicant was charged with driving under the influence of alcohol (DUI) and driving on a suspended license. She pleaded not guilty to the DUI but was convicted. She pleaded nolo contendere (no contest) to driving on a suspended license. (GX 3.) At the hearing she testified that she was arrested while driving home from her employer’s Christmas party and did not believe she had consumed enough alcohol to be guilty of DUI. She passed the field sobriety test but not the breathalyzer. (Tr. 39-40.) Because of her frequent sea duty, she was unaware that her driver’s license had been suspended for nonpayment of fines. (Tr. 44- 46.) She was sentenced to jail for 12 months (suspended for 2 years), fined $300, and ordered to attend an alcohol-education class. Her driver’s license was suspended for one year and she was required to install an ignition interlock device on her car. (AX A.) She completed all the court-ordered requirements, and her driver’s license was reinstated in July 2014. (AX B; AX C.) Applicant testified that she initially did not take the alcohol-education class seriously, but she also testified: So, I’m in the class, like, okay. But as time goes on I started hearing about these stories, and everything that is going on with these DUI drivers. And I’m like, man this is really serious. Crazy thing about it, like, the last day of class one of my friends got killed by a DUI driver. So, you know, that was just like a real wake-up call to me. So I’m so remorseful, you know, for me driving like that, because now I see the seriousness of this, not only because I hurt myself, but I could have hurt someone else. So I would never, never do that again. (Tr. 41.) 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 5 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 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. 6 Analysis Guideline J, Criminal Conduct 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 admissions, testimony at the hearing, and the documentary evidence submitted by the parties establish 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 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 potentially relevant: AG ¶ 32(a): so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; AG ¶ 32(c): no reliable evidence to support that the individual committed the offense; and AG ¶ 32(d): there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. AG ¶¶ 32(a) and 32(d) are established. Applicant’s last arrest was in December 2012, almost five years ago. She has had no criminal or alcohol-related misconduct since her DUI arrest. She completed all the court-ordered requirements after her DUI conviction, and her driver’s license was reinstated more than three years ago. Her performance evaluation and the comments of her fellow employees and supervisors establish that she is a valuable and trusted mariner. AG ¶ 32(c) is established for the conduct alleged in SOR ¶ 1.g, because the military commander determined that there was insufficient evidence to establish it. It is established for the conduct alleged in SOR ¶ 1.c, because Applicant denied committing 7 it and the court dismissed the charge when her accuser failed to appear in court. This mitigating condition is not established for the other criminal conduct alleged in the SOR. 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 ability to protect classified or sensitive information. . . .” Applicant’s criminal history establishes the following disqualifying conditions under this guideline: AG ¶ (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; 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 . . . (2) any disruptive, violent, or other inappropriate behavior; [and] (3) a pattern of dishonesty or rule violations; and AG ¶ 16(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 . . . . The following mitigating conditions are potentially relevant: 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; AG ¶ 17(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 8 untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. All the above mitigating conditions are established. Applicant’s misconduct was almost five years ago. She completed the alcohol-education class, and, to her surprise, she found the experience sobering. She sincerely testified that her DUI will never happen again. She has been open and candid about her past, thereby reducing any vulnerability to exploitation, manipulation, or duress. Whole-Person Concept Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. In applying the whole- person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. An administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(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. I have incorporated my comments under Guidelines J and E in my whole-person analysis and applied the factors in AG ¶ 2(d). Applicant was candid, sincere, remorseful, and credible at the hearing. She is enthusiastic about her job and proud of the progress she has made. She is respected by her peers and her supervisors. After weighing the disqualifying and mitigating conditions under Guidelines J and E, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns raised by her criminal conduct and personal conduct. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline J (Criminal Conduct): FOR APPLICANT Subparagraphs 1.a-1.h: For Applicant 9 Paragraph 2, Guideline E (Personal Conduct): FOR APPLICANT Subparagraph 2.a: For Applicant 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