DATE: December 4, 2001

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SSN: -----------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

APPEARANCES

FOR GOVERNMENT

Martin H. Mogul, Department Counsel

FOR APPLICANT

Pro Se

STATEMENT OF THE CASE

On February 28, 2001, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued the attached Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

The Applicant responded to the SOR in writing on June 20, 2001, and elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) to the Applicant on August 2, 2001. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on November 9, 2001, and he submitted no response.

The case was transferred to the undersigned for resolution on November 16, 2001.

The Applicant is 37 years old, and is employed by a defense contractor as a Systems Engineer. He is applying for a security clearance in connection with his employment.

The Government opposes the Applicant's request for a security clearance, based upon the allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR:

Paragraph 1 (Guideline J - Criminal Conduct). The Government alleges that the Applicant is ineligible for a clearance because of a history of criminal conduct.

The Applicant denies each of the subparagraphs under this guideline. The record evidence indicates, however, that beginning in 1987, and continuing until as least 1998, the Applicant engaged in criminal conduct resulting in numerous arrests. (See, Government Exhibits 3 through 7).

The Applicant was arrested in February 1987, and charged with (1) Assault with a Deadly Weapon, other than a firearm, Upon a Police Officer, a felony, (2) Evading a Police Officer Causing Injury/Death, and (3) Driving Under the Influence of Alcohol. The Applicant explained that he was a student in college, and had been drinking alcohol from a keg at a pre-graduation party. He drove away in his car when a police car attempted to pull him over. The Applicant did not stop, and attempted to evade the officers. The Applicant collided with a police car causing damage to the police vehicle. The Applicant was taken into custody and transported to a hospital where a blood test was administered. The blood test revealed that he was legally intoxicated. The Applicant was found guilty, and sentenced to nine months in jail, and placed on three years probation. He was fined $680.00. In his statement to Defense Security Service dated April 18, 2000, the Applicant states that following this arrest, he completely abstained from the use of alcohol until 1992. (Government Exhibit 5).

The Applicant was arrested in May 1987, and charged with (1) Sexual Battery, (2) Assault, (3) Battery, and (4) Disturbing the Peace. The Applicant stated that, as a college student, a complaint was filed against him by a female who had attended a dorm party, and who alleged that he had touched her breasts without permission. The Applicant did not recall whether he was convicted of any charges. The court records indicate that two females alleged that he wrongfully touched them without their consent. The Applicant pled not guilty to counts 1 and 2, and nolo contendere to counts 3 and 4. He was sentenced to 90 days in jail, which was stayed on the successful completion of electronic monitoring, and was placed on three years probation. Counts 1 and 2 were dismissed. There is no evidence in the record as to whether the Applicant was or had been consuming alcohol at the time of the incident. (Government Exhibit 7).

In August 1992, the Applicant was charged and cited with (1) Bow Riding, (2) No Extinguisher, and (3) No Registration Number. He pled guilty, and was fined $135.00. The police report indicates that the Applicant received a moving violation for allowing a passenger to sit on the bow of his pleasure craft while it was underway. (Government Exhibits 5 and 6).

The Applicant was arrested in July 1998, and charged with (1) Operation Under the Influence of Alcohol. He pled guilty and was sentenced to 48 hours in jail, ordered to pay a fine of $1,877.00, ordered to attend DUI First Offenders Program, and was placed on supervised probation for three years. The Applicant explained that he was on vacation, at a lake, when he was arrested while driving his jet ski while standing. The Applicant had consumed several beers and a mixed drink before the arrest.

(Government Exhibit 5).

Three months later, the Applicant was arrested in October 1998, and charged with Public Intoxication. The Applicant explained that he had consumed two to three beers before driving to pick up his son at school. He then illegally parked his car. A teacher smelled alcohol on the Applicant's breath, and called the police. The officer arrived, and asked the Applicant to move his car. The Applicant refused because he believed the officer was setting him up for a DUI. The officer then arrested the Applicant for being drunk in public. The Applicant stated that he pled guilty to the charge in order to avoid any further litigation. He was sentenced to ten days in jail, with one day credit served and nine days suspended, ordered to pay a fine of $250.00, and was placed on probation for three years. (Government Exhibit 5).

The Government alleges that the Applicant was also arrested in 1983, and charged with (1) Driving Under the Influence of Alcohol or Drugs, (2) Driving at 0.10 or above alcohol, and (3) Evading an Officer. There is no evidence in the record to support this allegation. Accordingly, allegation 1.a., is found for the Applicant.

Paragraph 2 (Guideline G - Alcohol Consumption). The Government alleges that the Applicant is ineligible for clearance because he abuses intoxicants.

The Applicant denies each of the subparagraphs under this guideline. The record evidence reveals, that at the time of all but one of the arrests, the Applicant was either under the influence of alcohol, or had been consuming alcohol.

The is no clear evidence in the record as to when the Applicant started drinking alcohol. The record does reveal that from at least February 1987 until at least October 1998, the Applicant consumed alcohol habitually to excess. His history of excessive drinking has resulted in numerous arrests.

In his statement to DSS the Applicant states that following his arrest in 1987, he stopped drinking, and abstained from alcohol until 1992, when he started drinking again. It is unclear whether he continues to drink. In his statement the Applicant states that he is a social drinker, occasionally consuming a beer or two at social events. (Government Exhibit 5). In his answer to the SOR, the Applicant states that he no longer consumes alcohol, and is maintaining his sobriety through a 12 step program. His answer further states that he believes he is now more mature, and can control his use of alcohol.

Paragraph 3 (Guideline E - Personal Conduct). The Government alleges that the Applicant is ineligible for clearance because his conduct involves questionable judgment, untrustworthiness and unreliability, or an unwillingness to comply with rules and regulations.

The Applicant denies each of the subparagraphs under this guideline. The record evidence reveals that the Applicant completed a Security Clearance Application (Standard Form 86) dated July 5, 1999. In response to question 21, which asked, "Have you ever been charged with or convicted of any felony offense? The Applicant answered "NO". (See, Government Exhibit 4,Question 21). This was a false answer. The Applicant was charged with a felony offense in February 1987.

The same questionnaire asked the Applicant if he had ever been charged with any offenses related to alcohol or drugs. The Applicant answered "Yes", and listed that he had been arrested in 1987, and twice in 1998. He did not list his arrest of 1983. (See, Government Exhibit 4, Question 24). I do not find that the Applicant deliberately failed to list his 1983, as there is no evidence in the record to support that he was ever arrested in 1983. Accordingly, allegation 3.b., is found for the Applicant.

The Government also alleges that the Applicant failed to reveal his 1983 arrest in his sworn statement to DSS dated April 18, 2000. Again, there is no evidence in the record to support the 1983 arrest. Accordingly, allegation 3.c., is found for the Applicant.

I find that the Applicant's response to question 21 on his security clearance application of July 5, 1999, was a deliberate attempt to conceal material information from the Government. The information provided by the Applicant was false, and the Applicant knew that it was false at the time he provided it on the application.

The record does not contain sufficient evidence in mitigation to overcome or outweigh the negative effects of the Applicant's false statements to DoD, which were provided under a certification of truth or a sworn oath.

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent guideline. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on own common sense. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

Conditions that could raise a security concern:

(1) any criminal conduct regardless of whether the person was formally charged;

(2) a single serious crime or multiple lesser offenses.

Conditions that could mitigate security concerns:

None.

Guideline G (Alcohol Consumption)

Conditions that could raise a security concern:

(1) alcohol related incidents away from work, such as driving while under the influence;

(4) habitual or binge consumption of alcohol to the point of impaired judgement.

Conditions that could mitigate security concerns:

None.

Guideline E (Personal Conduct)

Conditions that could raise a security concern:

(2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or statute, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

(5) a pattern of dishonesty or rule violations;

(6) association with persons involved in criminal activity.

Conditions that could mitigate security concerns:

None.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances

b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

I. The likelihood of continuation or recurrence.

The eligibility criteria established in the DOD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours a day. The Government is therefore appropriately concerned where available information indicates that an Applicant for clearance may be involved in criminal conduct, alcohol abuse and personal conduct which demonstrates poor judgment, untrustworthiness or unreliability.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination." The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order...shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in criminal and dishonest conduct, which demonstrates poor judgment or unreliability.

It is the Government's responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant's conduct and the continued holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go

forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or outweigh the Government's case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him or her a security clearance.

In this case the Government has met its initial burden of proving by evidence that the Applicant has engaged in criminal conduct (Guideline J), alcohol abuse (Guideline G), and dishonesty (Guideline E). This evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant.

Where an Applicant engages in criminal conduct, it can be presumed that he or she will not take a serious attitude toward the important matter of protecting classified information. Criminal Conduct reflects questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an Applicant has demonstrated a lack of respect for the law in his private affairs, there exists the possibility that he or she may demonstrate the same attitude towards security rules and regulations.

This Applicant has failed to introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case against him.

The record evidence establishes that the Applicant has engaged in a pattern of criminal conduct beginning in 1987, that has continued until his most recent arrest of 1998. His criminal offenses are numerous, serious, recent, and show immaturity and extreme poor judgment. As a result of his most recent arrest in 1998, he presently remains on probation. Furthermore, the criminal records are inconsistent with the Applicant's version of the incidents, and as such I do not find the Applicant to be candid or credible.

With respect to the Applicant's history of alcohol abuse, most of his arrests occurred when he was under the influence of alcohol. His most recent arrest occurred just 26 months ago, in October 1998. Although he states that he no longer consumes alcohol and maintains his sobriety through a 12 step program, given the serious extent of his past abusive drinking pattern, which occurred repeatedly over a period of 15 years, sufficient time in sobriety has not passed to ensure that he will not return to his old ways. Accordingly, Guideline G (Alcohol Abuse), is found against the Applicant.

Furthermore, the Applicant deliberately falsified his security clearance application by concealing the fact that he was charged with a felony offense in 1987. The Government relies heavily upon the integrity and honesty of clearance holders. It is a negative factor for security clearance purposes when an Applicant has deliberately provided false information about material aspects of his or her personal background. This Applicant cannot be considered trustworthy, and does not meet the eligibility requirements for access to classified information. Accordingly, I find against the Applicant under Guideline E, (Personal Conduct).

The Applicant has also failed to respond to the File of Relevant Material, which leaves the record silent on the issue of rehabilitation. The Applicant does not show remorse or sensitivity to his past wrong behavior. It is not clear that the Applicant has gained the necessary insight into the seriousness of his criminal conduct or personal conduct, or whether he is prepared to act responsibly in the future. I cannot say that he is unlikely to repeat his irresponsible conduct. I find that the Applicant's criminal conduct and alcohol consumption was not isolated, is recent, and could possibly recur in the future. Accordingly, Guideline J, (Criminal Conduct), and Guideline G, (Alcohol Consumption), are found against the Applicant.

On balance, it is concluded that the Applicant has failed to overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraph 1, 2, and 3 of the Government's Statement of Reasons.

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: Against the Applicant.

Subpara. 1.a.: For the Applicant.

Subpara. 1.b.: Against the Applicant.

Subpara. 1.c.: Against the Applicant.

Subpara. 1.d.: Against the Applicant.

Subpara. 1.e.: Against the Applicant.

Subpara. 1.f.: Against the Applicant.

Subpara. 1.g.: Against the Applicant.

Paragraph 2: Against the Applicant.

Subpara. 2.a.: Against the Applicant.

Subpara. 2.b.: Against the Applicant.

Paragraph 3: Against the Applicant.

Subpara. 3.a.: Against the Applicant.

Subpara. 3.b.: For the Applicant.

Subpara. 3.c.: For the Applicant.

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant.

DARLENE LOKEY-ANDERSON

Administrative Judge