1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) -------------------------------------- ) ISCR Case No. 16-01397 ) Applicant for Security Clearance ) Appearances For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ LEONARD, Michael H., Administrative Judge: Applicant contests the Defense Department’s intent to deny or revoke his eligibility for access to classified information. He did not present sufficient evidence to explain, extenuate, or mitigate the security concern stemming from an ingrained pattern of failure to conform his behavior to the law, as shown by multiple arrests and charges for driving under the influence of alcohol (DUI) from 1979 to 2015. Accordingly, this case is decided against Applicant. Statement of the Case Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 format) on September 16, 2015.1 This document is commonly known as a security clearance application. Thereafter, on June 29, 2016, after reviewing the application and the information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, Fort Meade, Maryland, sent 1 Exhibit 3. 2 Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant him eligibility for access to classified information. The SOR is similar to a complaint. It detailed the factual reasons for the action under the security guidelines known as Guideline G for alcohol consumption, Guideline J for criminal conduct, and Guideline E for personal conduct. Applicant answered the SOR on August 2, 2016. He requested a decision based on the written record in lieu of a hearing. His response consisted of handwritten responses on a copy of the SOR in which he admitted most of the allegations and several enclosures. On September 22, 2016, Department Counsel submitted all relevant and material information that could be adduced at a hearing. The file of relevant material (FORM) consists of Department Counsel’s written brief and supporting documentation, some of which are identified as evidentiary exhibits in this decision. The FORM was mailed to Applicant, who received it January 12, 2017. He did not reply to the FORM within 30 days of receipt of the FORM. The case was assigned to me October 1, 2017. Procedural Matters In the FORM, Department Counsel withdrew the allegations found at SOR ¶¶ 1.d (concerning a 1993 DUI arrest and charge) and 3.b (concerning a false statement during a December 2015 background investigation). Those allegations will be decided accordingly. Department Counsel’s FORM includes Exhibit 6, which are reports of investigation (ROI) summarizing Applicant’s interviews that took place during background investigations in August 2010, November 2010, and December 2015. The ROI are not authenticated by a witness, as required under ¶ E3.1.20 of the Directive.2 Likewise, Section 5(a) of Executive Order 10865 prohibits receipt and consideration of “investigative reports” without authenticating witnesses. The Directive provides no exception to the authentication requirement. Indeed, the authentication requirement is the exception to the general rule that prohibits consideration of an ROI. Department Counsel’s written brief includes a footnote advising Applicant that the ROI was not authenticated and that failure to object may constitute a “waiver” of the authentication requirement. In my view, Department Counsel is conflating or confusing the terms waiver and forfeiture.3 In the law of evidence, errors are preserved by timely objections, and relief on appeal is granted from a preserved error unless it is harmless (the harmless-error doctrine). Waiver is the voluntary relinquishment or abandonment of 2 See generally ISCR Case No. 12-10933 (App. Bd. Jun. 29, 2016) (In a concurring opinion, Judge Ra’anan notes the historical concern about reports of investigation in that they were considered by some to present a heightened problem in providing due process in security clearance cases. Judge Ra’anan raises a number of pertinent questions about using an unauthenticated ROI in a non-hearing case with a pro se applicant.). 3 See United States v. Olano, 507 U.S. 725 (1993) (in this opinion, the Supreme Court distinguishes between forfeiture and waiver). 3 a legal right or advantage. With a waiver, there is no error to correct on appeal and no relief to grant. On the other hand, failure to make a timely objection usually forfeits any error, and relief on appeal is appropriate from a forfeited error only upon a showing that the error was plain, obvious, and prejudicial (the plain-error doctrine). The written record does not demonstrate that Applicant, who has not replied to the FORM, understood the concepts of authentication, waiver, and admissibility. It also does not demonstrate that he understood the implications of waiving an objection. Accordingly, given the lack of an authenticating witness, I have not considered the ROI in reaching my decision. Findings of Fact Applicant is a 57-year-old employee who requires a security clearance for his job as an assembly technician for a federal contractor. He has been so employed since November 2000. His educational background includes associate’s degrees awarded in 2006 and 2009. He is twice divorced and has an adult son. The SOR alleges and Applicant admits a history of alcohol-related incidents from 1979 to 2015; namely, arrests and charges for DUI. He admits, or the written record establishes, arrests and charges for DUI in 1979, 1989, 1992, and 2000. In 2003, another administrative judge made an unfavorable clearance decision against Applicant, and that decision was affirmed in 2004 by the Appeal Board.4 The unfavorable decision was based on four arrests between 1989 and 2000, three for alcohol-related offenses; the use and purchase of cocaine during 1994-1998; a $36,000 child-support arrearage; and the deliberate falsification of answers to four questions on his April 2000 security clearance application. Applicant was also arrested and charged with DUI in 2014 and 2015. For the 2015 incident, court records show that in August 2015 he pleaded no contest to driving under the influence while his blood alcohol level was 0.08% or more while the actual DUI offense was dismissed via a plea negotiation; he received a conditional sentence for a term of three years, 90 days jail, was ordered to attend and complete a three- month level 1 alcohol program; and was ordered to pay $853 in fees and costs.5 Court records also indicate that that he was non-compliant with a court mandate in October 2015 following the conviction.6 In Applicant’s September 2015 security clearance application, he answered “No” to a question about his police record as follows: “Have you ever been charged with any offense(s) related to drugs and alcohol. In his answer to the SOR, he explained that he 4 Exhibits 12 and 13. 5 Exhibit 9. A conditional sentence means “[a] sentence of confinement if the convicted criminal fails to perform the conditions of probation.” Black’s Law Dictionary 1485 (Bryan A. Garner ed., 9th ed., West 2009). 6 Exhibit 10. 4 did not disclose his multiple DUI arrests and charges because he had notified his employer’s security office of those matters, and he knew that the Defense Department had access to such information. After considering all the evidence, including his previous unfavorable clearance decision, I find insufficient evidence for a determination that Applicant intentionally falsified his September 2015 security clearance application when he failed to disclose his history of DUI arrests and charges. Accordingly, given that finding, the falsification allegation under Guideline E is not discussed further herein. Law and Policies This case is adjudicated under Executive Order (E.O.) 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 National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AG), effective June 8, 2017.7 It is well-established law that no one has a right to a security clearance.8 As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”9 Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security. In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of evidence.10 The Appeal Board has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.11 A favorable clearance decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information.12 An unfavorable clearance decision (1) denies any application, (2) revokes any existing security clearance, and (3) prevents access to classified information at any level.13 7 The 2017 AG are available at http://ogc.osd.mil/doha. 8 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a security clearance). 9 484 U.S. at 531. 10 484 U.S. at 531. 11 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). 12 Directive, ¶ 3.2. 13 Directive, ¶ 3.2. 5 There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information.14 The Government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted.15 An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven.16 In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.17 Discussion The alcohol consumption and criminal conduct matters are discussed together because they based largely on the same set of facts and circumstances. In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions as most pertinent under Guidelines G and J, respectively: AG ¶ 22(a) alcohol-related incidents away from work, such as driving under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder; AG ¶ 22(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder; AG ¶ 31(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness; 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; and AG ¶ 31(c) the individual is currently on parole or probation. The evidence supports a conclusion that Applicant has a history of alcohol- related incidents away from work ending with criminal arrests and charges. His history includes multiple incidents dating back to 1979 and as recent as 2015, a period of more than 30 years. He is currently under a conditional sentence for three years until August 14 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). 15 Directive, Enclosure 3, ¶ E3.1.14. 16 Directive, Enclosure 3, ¶ E3.1.15. 17 Directive, Enclosure 3, ¶ E3.1.15. 6 2018 for his 2015 alcohol-related conviction. Taken together, his history of alcohol- related incidents constitutes an ingrained pattern of failure to conform his behavior to the law, which suggests he is not a good candidate for eligibility for access to classified information. Turning next to mitigation, I recited no mitigating conditions above because none are applicable. Applicant has a serious problem with alcohol. This is readily established by his multiple arrests and charges for DUI over a period of many years. In other words, this was not an isolated incident, and this wasn’t a problem for a limited period of time. Moreover, what is missing here is reliable evidence of reform and rehabilitation. Without such evidence, I can only presume that Applicant will continue to drink and drive, resulting in yet another arrest and charge for DUI or some other alcohol-related offense. Applicant’s long-standing history of alcohol-related incidents away from work creates serious doubt about his reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also considered the whole-person concept. Accordingly, I conclude that he did not meet his ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant his eligibility for access to classified information. Formal Findings The formal findings on the SOR allegations are: Paragraph 1, Guideline G: Against Applicant Subparagraphs 1.a-1.c: Against Applicant Subparagraph 1.d: Withdrawn Subparagraphs 1.e-1.i: Against Applicant Paragraph 2, Guideline J: Against Applicant Subparagraph 2.a: Against Applicant Paragraph 3, Guideline E For Applicant Subparagraph 3.a: For Applicant Subparagraph 3.b: Withdrawn Conclusion In light of the record as a whole, it is not clearly consistent with the national interest to grant Applicant access to classified information. Michael H. Leonard Administrative Judge