1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01149 ) Applicant for Security Clearance ) Appearances For Government: Pamela Benson, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ CERVI, Gregg A., Administrative Judge This case involves security concerns raised under Guideline K (Handling Protected Information) and Guideline E (Personal Conduct). Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a security clearance application (SCA) on April 15, 2015. On June 27, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines K and E.1 Applicant answered the SOR on July 13, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written brief with 1 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. 2 supporting documents, known as the File of Relevant Material (FORM) dated October 6, 2016, was submitted by Department Counsel. A complete copy of the FORM was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on October 18, 2016. He submitted a response to the FORM, marked as Applicant Exhibit (AE) A. The Government’s exhibits included in the FORM (Items 1 to 3) and AE A are admitted into evidence. The case was assigned to me on July 3, 2017. Findings of Fact Applicant is a 59-year-old senior program manager for a defense contractor, employed since 1981. He was awarded a bachelor’s degree in 1981 and a master’s degree in 1995. He is currently married but separated, and is living in the same residence with his spouse while his son attends college. He has held a security clearance since 2001. The SOR alleges Applicant had various security violations. In 2012 he took a cell phone into a secure sensitive compartmented information facility (SCIF) and was verbally warned; in 2014 he allowed a colleague into the SCIF to shred computer parts without proper authorization and was verbally warned; in 2015 he took an electronic personal fitness device into the SCIF and was verbally warned; and in 2015 he escorted an employee into a classified meeting in which the employee did not have the appropriate clearance. Applicant was given a written reprimand. The same allegations were cross- alleged under Guideline E, and Applicant is also alleged to have intentionally falsified his April 2015 security clearance reapplication by not reporting his past verbal warnings as under section 13C (Employment Record) of the SCA. SOR ¶ 2.b should have alleged the falsification allegations under SCA section 13A, where Applicant listed his current employment, rather than section 13C, which applies to employment activities not previously listed. Both sections request applicant’s to report whether they have received a “written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as violation of a security policy.” Applicant admitted the SOR allegations under Guideline K, but denied the allegations under Guideline E. Applicant explained in his answer to the SOR, that in 2012, he mistakenly entered the SCIF with a cell phone; and in early 2015, he entered the SCIF wearing a personal fitness bracelet. He noted that the fitness bracelet was a new item and he was unaware that it was prohibited in the SCIF. He received verbal warnings on each occasion from his facility security officer (FSO). He noted that he now double-checks himself for any electronic devices before entering the SCIF. In 2014, Applicant allowed another employee into the SCIF without the proper security access, to use a specialized shredder to grind computer parts as required by a government contract. This shredder was the only one available for the type of shredding necessary. He noted that the employee did not view any classified information in the 3 space, but that he should have obtained prior permission from the FSO so that the space could be cleared and its use could be properly coordinated. He received a verbal warning from the FSO. In June 2015, Applicant escorted another employee, into the SCIF to attend a classified customer meeting in place of another engineer that regularly attended the meeting. Applicant assumed the employee had the proper security clearance, but was later informed by the FSO that his clearance was “in process” at the time, and that Applicant should have required the employee to verify his clearance before entering the meeting. Applicant received a written reprimand. The written reprimand was not entered into the record herein. When Applicant completed his April 2015 SCA, he did not report the verbal security violation warnings he received in 2012, 2014, and early 2015 in sections 13A or 13C. Applicant noted that when he completed section 13 of the SCA, he did not believe the question required him to report “verbal warnings” as he did not interpret them to fall within the requirement to report “written warnings” or “official reprimands.” During his personal subject interview (PSI) by a government investigator, he disclosed and discussed each of the verbal warnings. He has since acknowledged his misunderstanding and noted that he had no intent to withhold disclosure of the events in his clearance application.2 Applicant acknowledged his security violations, is current on all security training, and vowed to remain incident free by thoroughly checking himself for electronic devices before entering the SCIF and using proper entry procedures. He stated that he has a positive attitude about security, and has not had any further incidents since 2015. Law and Policies The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, effective on June 8, 2017. My ultimate decision would be the same under either set of adjudicative guidelines. “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2. National security eligibility 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 2 The June 2015 incident resulting in a written reprimand occurred after he completed the April 2015 SCA. 4 judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider a person’s stability, trustworthiness, reliability, discretion, character, honesty, and judgment. AG ¶ 1(b). The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 1(d). 5 Analysis Guideline K: Handling Protected Information AG ¶ 33 expresses the handling protected information security concern: Deliberate or negligent failure to comply with rules and regulations for handling protected information-which includes classified and other sensitive government information, and proprietary information-raises doubt about an individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard such information, and is a serious security concern. Relevant conditions that could raise a security concern under AG ¶ 34 and may be disqualifying include: (a) deliberate or negligent disclosure of protected information to unauthorized persons, including, but not limited to, personal or business contacts, the media, or persons present at seminars, meetings, or conferences; (g) any failure to comply with rules for the protection of classified or sensitive information; and (h) negligence or lax security practices that persist despite counseling by management. The Applicant’s security violations are sufficient to implicate disqualifying security concerns under AG ¶¶ 34 (a), (g), and (h). Relevant conditions that could mitigate security concerns under AG ¶ 35 include: (a) so much time has elapsed since the behavior, or it has happened 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; (b) the individual responded favorably to counseling or remedial security training and now demonstrates a positive attitude toward the discharge of security responsibilities; (c) the security violations were due to improper or inadequate training or unclear instructions; and (d) the violation was inadvertent, it was promptly reported, there is no evidence of compromise, and it does not suggest a pattern. 6 Applicant has been employed with the same defense contractor since 1981, and has held a security clearance since 2001. He has had four security incidents during that time. Two of which were relatively minor; mistakenly taking a cell phone and fitness bracelet into a SCIF. He also did not follow proper procedures to allow employees without the proper clearance access to the SCIF. Three of these events in 2012, 2014 and 2015, resulted in verbal warnings, but not more serious written warnings, official reprimands, or disciplinary action. The June 2015 incident where a substitute employee without the proper access was allowed to attend a classified meeting resulted in the only written reprimand that Applicant has received. Applicant acknowledged his security lapses and vowed to check himself more thoroughly for electronic devices before entering the SCIF. He also vowed to ensure anyone he escorts into the secured facility has the proper access. He has completed all required security training, has a positive attitude about security, and there have been no further security incidents since 2015. AG ¶¶ 35 (a), (b), and (d) apply. Guideline E; Personal Conduct AG ¶ 15 expresses the personal conduct security concern: 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. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying in this case. The following disqualifying condition are potentially applicable: (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; (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 person may not properly safeguard protected information. This includes but is not limited to consideration of: 7 (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information: . . . (3) a pattern of dishonesty or rule violations; 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; . . . The allegations alleged under Guideline K that are cross-alleged under Guideline E (SOR ¶ 2.a) are specifically covered under Guideline K, and therefore AG ¶ 16(d) is not applicable. However, the conduct may implicate AG ¶ 16(e). Applicant did not intentionally falsify his SCA by not disclosing verbal security warnings under section 13C, as alleged, or under section 13A as it should have been alleged. The relevant questions are ambiguous with regard to verbal warnings, and Applicant’s belief that the warnings did not rise to the level of “written warnings” or an “official reprimand” is plausible. I find that he did not intentionally falsify his SCA, however both Guideline E allegations have been mitigated. Guideline E includes conditions that could mitigate security concerns arising from personal conduct. I have considered all of the mitigating conditions under AG ¶ 17 and found the following relevant: (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. Applicant has been employed with the same defense contractor since 1981, and has held a security clearance since 2001. He has had four security incidents during that time. Two of which were relatively minor and two involved not following proper procedures to allow employees into a classified space. Applicant acknowledged his security lapses, 8 and vowed to check himself more thoroughly for electronic devices before entering the SCIF. He also vowed to ensure anyone he escorts into the secured facility has the proper access. With regard to completing his SCA, Applicant now acknowledges that he should have disclosed the security warnings in his SCA, but did not intend to withhold information from the government but that he will address the matter differently in the future. Additionally, he fully disclosed and discussed the incidents in his PSI with a government investigator. He has completed all required security training, has a positive attitude about security, and there have been no further security incidents since 2015. AG ¶ 17(c) and (d) apply. Whole-Person Concept Under AG ¶¶ 2(a), 2(c), and 2(d), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the guidelines and the 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). Although adverse information concerning a single criterion may not be sufficient for an unfavorable eligibility determination, the individual may be found ineligible if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or unstable behavior. AG ¶ 2(e). I considered all of the potentially disqualifying and mitigating conditions in light of the facts and circumstances surrounding this case. I have incorporated my findings of fact and comments under Guidelines K and E in my whole-person analysis. Applicant is a mature employee with many years of handling classified information in sensitive spaces, and his work has contributed to the national defense. He has acknowledged his security lapses and understands how he should complete his SCA going forward. He has taken appropriate steps to ensure that he has no further security incidents, completed required security training, takes extra effort to ensure he has complied with all security rules and procedures, and has a positive attitude. He has not had an additional incident since 2015. The favorable record evidence is sufficient to fully mitigate the security concerns raised in the SOR, and the personal conduct concerns are mitigated or are not applicable as discussed above. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility for continued access to classified information. Accordingly, I conclude Applicant has carried his burden of showing that it is clearly consistent with the national security interests of the United States to continue his 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: 9 Paragraph 1, Guideline K: For Applicant Subparagraphs 1.a – 1.d: For Applicant Paragraph 2, Guideline E: For Applicant Subparagraphs 1.a and 1.b: For Applicant Conclusion I conclude that it is clearly consistent with the national security to grant continued eligibility for access to classified information. Applicant’s request for a security clearance is granted. _______________________ Gregg A. Cervi Administrative Judge