1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-03771 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Richard L. Morris, Esq. ______________ Decision ______________ MURPHY, Braden M., Administrative Judge: Applicant mitigated the security concerns under Guideline J, criminal conduct, and Guideline E, personal conduct. He established that it is clearly consistent with the interests of national security that he be granted access to classified information. Applicant’s eligibility for access to classified information is granted. Statement of the Case On January 18, 2017, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline J, criminal conduct, and Guideline E, personal conduct. The action was taken 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 effective within the DoD on September 1, 2006. 2 On December 10, 2016, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, National Security Adjudicative Guidelines (AG). The new AGs became effective on June 8, 2017, for all adjudicative decisions on or after that date.1 Any changes resulting from the implementation of the new AGs did not affect my decision in this case. Applicant initially answered the SOR on February 14, 2017, but his answer was not complete. He answered the SOR again on March 13, 2017, and requested a hearing. The Government indicated it was ready to proceed on April 3, 2017. On May 11, 2017, the assigned administrative judge scheduled the hearing for June 7, 2017. On May 26, 2017, Applicant’s counsel entered appearance and requested a continuance, which was granted on May 31, 2017. The case was then transferred to me. On June 19, 2017, a Notice of Hearing was issued scheduling the hearing for August 2, 2017. The hearing convened as scheduled. At the hearing, Department Counsel submitted Government’s Exhibits (GE) 1 through 7. Applicant submitted Applicant’s Exhibits (AE) A through R. All exhibits were admitted without objection. Applicant testified and called three witnesses. Findings of Fact Applicant admitted SOR ¶¶ 1.b, 2.a, and 2.b.2 For SOR ¶¶ 1a, 1.c, 1.d, and 1.e, he admitted the allegations but denied that he was guilty.3 He denied ¶ 2.c. He did not answer ¶ 2.d, a cross-allegation. His admissions are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact. Applicant is 29 years old. He has never married and has no children. He works in information technology (IT) support for a defense contractor on a U.S. military base. He has worked in the field since May 2011, and has worked in the position, for different employers, since February 2013. Applicant provides IT support for general officers and high-level defense department civilians. He submitted a security clearance application (SCA) in November 2015. (Tr. 36, 44-46, 94; GE 1). Applicant enlisted in the United States Marine Corps at age 17. He served on active duty from September 2005 to September 2009 (ages 18-22). He has held a security clearance since 2006. His military service record includes six counselling warnings and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ). (Tr. 25; 61-65; 89-93; GE 5, 6, 7; AE R) 1 Applicant’s counsel confirmed that he received the new AGs before the hearing. (Transcript (Tr.) 8-9)). 2 For SOR ¶ 2.a, Applicant wrote, “Statement is true but it is a result of false NJPs.” 3 For these allegations, Applicant wrote, “Statement is true but I deny guilt.” 3 In December 2006, Applicant received NJP for disrespectful language and attitude towards a noncommissioned officer (NCO), failure to obey a lawful order, and making a false official statement (UCMJ Articles 91, 92 & 107). (SOR ¶ 1.e) His rank was reduced to private (E-1) and he forfeited $646 in pay for two months. His punishment was suspended for six months and later vacated. (Tr. 89-91; GE 5, 7) In April 2007, and again in August 2007, Applicant received NJP for disrespectful language and attitude towards a non-commissioned officer. (UCMJ Article 91) (SOR ¶¶ 1.c, 1.d) He forfeited pay and was given restriction and extra duty. (Tr. 89-91; GE 5, 6). Applicant ultimately attained the rank of corporal (E-4). He testified that he received substandard conduct marks which were below what was required to be eligible for reenlistment. In September 2009, Applicant received a general discharge under honorable conditions. (Tr. 64-65, 79-80; GE 1, 4) In 2011, Applicant sought to upgrade his discharge with the Department of the Navy. He asserted that poor leadership and hazing by NCOs in his unit contributed to his misconduct.4 He also contended that his proficiency and conduct marks were unjustifiably low and unfair. The Department of the Navy’s discharge review board considered the evidence before it, including Applicant’s service record, and disagreed. They declined to upgrade his discharge to honorable. (Tr. 83, GE 7) In November 2011, Applicant exchanged words with another driver as they both attempted to pull out of a parking lot onto a street clogged with congested traffic. Applicant testified that the other driver used profanity towards him. He also revved the engine and Applicant thought the other driver was going to ram him. Applicant showed the other driver that he had a firearm and said, “Don’t mess with me” before putting the firearm in the glove compartment. (Tr. 65-66) The other driver then pursued Applicant onto the road and followed him to his destination. Applicant was arrested and charged with brandishing a firearm, a misdemeanor. He spent the night at the police station and his parents bailed him out the next day. He later pleaded guilty to the charge. He received a 60-day suspended jail sentence, two years of unsupervised probation, and he was fined $100. (SOR ¶¶ 1.b, 2.a) Applicant acknowledged that he made a “stupid mistake” and testified he would never do it again. He also said he had never done anything like that before, or since. (Tr. 65-67, 73-75, 95; GE 1; GE 2; GE 7) In September 2014, Applicant was pulled over for having a defective license plate light. He told the police officer that he was carrying a firearm. He raised his arms and the officer saw that that the weapon was in a holster on Applicant’s waist. The officer charged Applicant with carrying a concealed firearm without a permit. He was tried, found guilty and fined $250. (SOR ¶¶ 1.a, 2.a) Applicant testified that he was 4 Applicant offered similar testimony at his hearing. (Tr. 78-82; 89-92) Applicant also offered statements from other Marines in his unit, including NCOs and staff NCOs, in an effort to corroborate his assertions about the atmosphere in his unit. (AE M – AE Q) 4 unaware that his state permit to carry a concealed weapon had been suspended as a result of the brandishing charge. He stated that he never received notice of the suspension in the mail because he moved. (Tr. 67-71, 75, 95-99; GE 1; GE 2; GE 7) Applicant is a self-described firearms enthusiast. He first purchased a firearm on his 21st birthday. He continues to own firearms, and does not need a permit to do so under his state’s law. However, as a result of the second charge, Applicant has to wait until 2019 (five years after the offense), to reapply for a concealed weapons permit. (Tr. 71-72, 76-77, 98-99) In November 2011, Applicant was terminated from his employment with a defense contractor after he failed to report to work or call to report he would be absent. (SOR ¶ 2.b) Applicant testified that he had a medical incident requiring hospitalization. His cell phone was not working because he was behind in making payments, so he was not able to call in sick. He was a temporary employee, so he was terminated the next day. (Tr. 83-84; GE 1; 7) In December 2012, Applicant was terminated by another employer for failing to wear a proper uniform. (SOR ¶ 2.c) He testified that after having surgery on his foot, he was unable to wear dress shoes, as required, because it was too painful. Instead, he had to wear a loose-fitting tennis shoe. He testified that his supervisor initially allowed him to wear different shoes, but did not support him when the issue came up with management. Applicant was again a temporary employee, and was terminated. (Tr. 83- 85; GE 1, 7) A co-worker of Applicant’s testified that he is trustworthy and reliable, and possesses very good judgment. He is also polite and peaceful. The co-worker is not aware that Applicant has had any problems with authority, with following rules or regulations, or with handling classified information. They have worked together for a year, and have daily professional interaction. (Tr. 35-40) Applicant’s next-level supervisor has known him professionally since she hired him two-and-a-half years ago. She testified that he was chosen over ten other applicants for his position. She spoke highly of his trustworthiness, judgment, reliability and professionalism. Applicant has received several positive accolades from supervisors and clients he assists at work. She considers him to be in the top five percent of her 100 employees. (Tr. 43-59) Applicant’s mother is an employee of a local defense contractor. She testified that her son is more mature and responsible than he was before he enlisted in the Marine Corps as a teenager. She testified that he helps care for his young nieces and picks them up from school when their mother is not able to. He assists his mother in her family responsibilities. (Tr. 27-29) 5 Applicant submitted several letters of recommendation from supervisors who know him professionally. They attested to his honesty, reliability, professionalism, and value to the organization. (AE G, AE H, AE I) The records of the city where Applicant lived until recently show that he has no criminal record there. He has a driver’s license and a motorcycle license, both valid. (AE A, AE B) Policies It is well established that no one has a right to a security clearance. As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security determinations should err, if they must, on the side of denials.”13 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 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, these guidelines are applied 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.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have not drawn inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel and 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 13 Department of Navy v. Egan, 484 U.S. 518, 531 (1988). 6 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. Analysis Guideline J: Criminal Conduct: AG ¶ 30 expresses the security concern for personal conduct: Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules, and regulations. AG ¶ 31 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable: (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 (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. During his four years in the Marine Corps, Applicant received three nonjudicial punishments under the UCMJ, all between November 2006 and August 2007. Applicant acknowledged that the SOR allegations about his NJPs were true, but he denied guilt. As he asserted before the discharge board, he testified that they were unjustified. I decline, however, to reexamine the validity of Applicant’s nonjudicial punishments here, especially since the Department of the Navy reviewed his service record and declined to upgrade his discharge. In 2011, Applicant was convicted of misdemeanor brandishing a firearm, during a “road rage” incident. His permit to carry a concealed firearm was suspended as a result, though he did not realize it. In 2014, after a traffic stop, he was convicted of carrying a concealed firearm without a permit (a misdemeanor). AG ¶¶ 31(a) and (b) apply to his NJPs and to his civilian offenses. AG ¶ 32 sets forth the applicable mitigating conditions under Guideline J: 7 (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 served in the Marine Corps between ages 18 and 22. He was young and immature and did not adjust well to military life. He was counselled numerous times and received three NJPs in the space of a year. Ultimately, he received a general discharge under honorable conditions in September 2009. As he acknowledged more than once at hearing, Applicant made a “stupid mistake” when he brandished a firearm at another driver in 2011. He was not aware that his concealed weapon permit was suspended as a result. His 2011 and 2014 offenses were both misdemeanors. He has not had any arrests or charges since. He still owns firearms, but is now aware that he is not allowed under state law to apply for a concealed weapon permit until 2019. Applicant is now 29 years old. He has been out of the Marine Corps for almost eight years. But for the offense at SOR ¶ 1.a, he has not had any trouble with the law for almost six years. He is highly regarded by both co-workers and supervisors. He has earned their trust and the significant responsibility he has to the clientele he serves. He also has matured and has learned to exercise better judgment and to control his impulses. AG ¶¶ 32(c) and (d) apply. Guideline E, Personal Conduct AG ¶ 15 expresses the security concern for 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. . . . 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, 8 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 (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; (3) a pattern of dishonesty or rule violations. Applicant had several NJPs while serving in the Marine Corps, and he received a general discharge under honorable conditions. He has two more recent misdemeanor convictions. He has a pattern of rule violations and inappropriate behavior. AG ¶¶ 16(c) and 16(d)(2) and (3) apply. With respect to SOR ¶¶ 2.b and 2.c, I find that Applicant gave reasonable explanations for his actions that led to the terminations. I do not question the reasonableness of his employers’ decisions to terminate him. However, I find that, given his explanations, Applicant’s underlying actions do not constitute disqualifying conduct. Alternatively, I find that that these SOR allegations are mitigated by the passage of time, especially when balanced against Applicant’s excellent track record at his current position. AG ¶ 17 sets forth the applicable mitigating conditions under Guideline E: (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; and (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. The above mitigating conditions fully apply for the same reasons set forth under Guideline J, above. 9 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. 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 Guidelines J and E in my whole-person analysis. I found Applicant a credible witness. He has matured, not only since his days in the Marine Corps, but in the years since. He has learned from the serious mistake he made in 2011, and I do not believe he will act that way again. I was particularly impressed by the testimony of Applicant’s supervisor, who stressed that he is quite highly regarded at his job, and has earned the professional trust he has been given. Overall, the record evidence leaves me with no questions or doubts as to Applicant’s eligibility for access to classified information. 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 J: FOR APPLICANT Subparagraphs 1.a - 1.e: For Applicant Paragraph 2: Guideline E: FOR APPLICANT Subparagraphs 2.a - 2.d: For Applicant 10 Conclusion In light of all of the circumstances, presented by the record in this case, it is clearly consistent with the interests of national security to grant Applicant’s access to classified information. Eligibility for access to classified information is granted. _____________________________ Braden M. Murphy Administrative Judge