KEYWORD: Personal Conduct
DIGEST: For fifteen years Applicant violated local laws by illegally hiring prostitutes and engaging in prohibited gaming, and his honesty is questioned in light of false statements made to investigators during the security clearance process. However, Applicant presents persuasive evidence of reform, changed behavior and otherwise good character supporting a favorable conclusion as to his eligibility for clearance under the whole person concept. Clearance is granted.
CASE NO: 01-03132.h1
DATE: 01/31/2002
DATE: January 31, 2002
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 01-03132
DECISION OF ADMINISTRATIVE JUDGE
BURT SMITH
APPEARANCES
FOR GOVERNMENT
Matthew E. Malone, Esq., Department Counsel
FOR APPLICANT
August Bequai, Esq.
SYNOPSIS
For fifteen years Applicant violated local laws by illegally hiring prostitutes and engaging in prohibited gaming, and his honesty is questioned in light of false statements made to investigators during the security clearance process. However, Applicant presents persuasive evidence of reform, changed behavior and otherwise good character supporting a favorable conclusion as to his eligibility for clearance under the whole person concept. Clearance is granted.
STATEMENT OF THE CASE
On June 21, 2001 the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 "Safeguarding Classified Information Within Industry," dated February 20, 1960, as amended, and DoD Directive 5220.6 (Directive) dated January 2, 1992, as amended, issued a Statement of Reasons (SOR) to Applicant. The SOR detailed reasons why DOHA could not make a 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 a clearance should be granted, continued, denied or revoked.
The Applicant responded to the SOR in an undated answer received by DOHA on July 16, 2001 in which he requested a hearing. The case was originally assigned to another Administrative Judge, and it was transferred to the undersigned on October 4, 2001. On October 12, 2001, an Amended Notice of Hearing was issued scheduling the hearing on November 20, 2001.
FINDINGS OF FACT
The Applicant is forty-six years old and unmarried, and he is employed by a defense contractor as a procurement specialist. He seeks a DoD security clearance in connection with his employment in the civilian defense industry.
The Government opposes the Applicant's request for a security clearance on the basis of allegations set forth under Paragraph 1, Guideline E, of the Statement of Reasons. The following findings of fact are entered as to the allegations in Paragraph 1.
Paragraph 1, Guideline E (Personal Conduct). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has engaged in a pattern of off-duty misconduct involving illegal gambling and payment for sexual services from prostitutes. The Government also alleges Applicant engaged in these prohibited activities while holding a security clearance, and he was untruthful during official interviews with a DoD investigator.
According to Applicant's sworn statement furnished to a DoD investigator he began to use the services of prostitutes in 1984 at age twenty-nine. (Gov. Ex. 2, p4.) Generally, he encountered the prostitutes in various clubs and dance establishments in the greater metropolitan area where he lived. By 1994 Applicant was hiring prostitutes about six times per year. Applicant continued to hire prostitutes until November 1999 when he stopped.
As to monetary expense, Applicant paid the prostitutes approximately $200-$300 per occasion. Applicant was not financially burdened by this practice, and he was never arrested or charged for the illegal hiring of prostitutes. He continued to be an excellent worker on the job although on one occasion in August 1999 he called in sick when in reality he was with a prostitute.
Soon thereafter a senior co-worker learned of Applicant's misconduct with prostitutes and gave him a friendly warning that their mutual employer would view this type of activity with disfavor. Applicant heeded the warning, and three months later he stopped using prostitutes. Applicant has not hired prostitutes in more than two years, and he states credibly that he has no intent to hire them in the future.
Applicant also engaged in illegal betting in the past by placing wagers on football games. From 1993 to 1997 Applicant bet about $1500 to $2000 per year on these events as a recreational activity. He was not skilled or fortunate in this pursuit, and over the course of these four years he lost about a thousand dollars per year. During the next two years Applicant significantly reduced his football betting, and his losses diminished to about $250 per year. Applicant concedes his gambling losses caused him financial shortages during 1993-1997, but he overcame them. (Gov. Ex. 2, pp 4-5.)
Not having access to a bookmaker, Applicant placed his illegal bets through friends and sports acquaintances. He continued to engage in this activity after November 1999 when he received a DoD security clearance. Applicant last placed a football bet in 2000, and he states a credible intent to avoid this type of misconduct in the future.
In 2000, Applicant was twice interviewed by a DoD investigator as part of the security clearance process. During the first interview, in February 2000, Applicant was asked general questions pertaining to his personal background, to include the question "In the last seven years have you been involved in any type of illegal activity." (Tr. 12-14.) Applicant conceded he had been involved in several traffic-related incidents and made court appearances, but except for these infractions he replied he had not engaged in any illegal activities. The investigator then proceeded to interview Applicant's co-workers concerning their knowledge of him.
Upon interviewing one of Applicant's co-workers, the investigator was told of an office rumor that Applicant was involved with prostitutes, and he was required to make a court appearance. (The first part of the rumor was true; the last part was not.) Nevertheless, all of Applicant's co-workers strongly endorsed his application for clearance. In April 2000 Applicant was re-interviewed to pursue the rumor that he used prostitutes and made a court appearance in connection with this activity.
During the initial part of the second interview the investigator did not directly ask Applicant whether he had ever hired prostitutes in the past. Instead, he asked once again (as in the first interview) if Applicant had been involved in any illegal activity in the last seven years, and Applicant said "No". He then asked Applicant if any of his admitted court appearances for traffic violations were related to the hiring of prostitutes, and Applicant stated truthfully they were not. Finally, the investigator asked Applicant "[H]ave you hired prostitutes in the past?" and Applicant stated truthfully that he had. (Tr. 23-24.) Following this admission, Applicant then voluntarily told the agent he also placed bets on football games.
In view of Applicant's past illegal activities involving gambling and the use of prostitutes it is found that during his interviews in February and April 2000 his denials were false as to general questions asking whether he had been involved in any illegal activities in the previous seven years. In the second interview Applicant was truthful when asked a specific question about hiring prostitutes. His admission conceding he engaged in illegal gambling was also true, but this voluntary admission was not forthcoming until the second interview.
At the hearing Applicant testified that he hesitated to admit engaging in football bets and use of prostitutes because he was embarrassed. Furthermore, he testified he was unsure whether these activities, to him wrong but harmless, were actually unlawful acts the Government had an interest in investigating. (Tr. 54, 59.) For its part, the Government alleges Applicant knew these pursuits were illegal, and he was obligated to admit them in both interviews.
Upon a consideration of all the evidence, it is found that when Applicant was first interviewed he probably was not precisely clear in his mind that football bets and use of prostitutes was contemplated by the Government in it's broad, general question concerning any and all illegal acts in the last seven years. Nevertheless, it is found that by the time of the second interview Applicant realized the significant nature of his illegal acts, and he was obligated to admit them in response to the agent's generalized question about his past behavior.
Mitigation. In his behalf, Applicant presents approximately 24 letters of character reference from co-workers and friends, divided almost evenly between men and women. (App. Ex. A.) In each case the writers describe their knowledge of the Applicant and attest that the Applicant is a hard-working and honest person who is responsible and reliable on the job and in his off-duty hours as well.
As noted above, Applicant received a friendly word of advice from a senior co-worker who learned of Applicant's activities with prostitutes and urged him to discontinue this conduct. Applicant's character references contain a letter from this co-worker who states that Applicant is "an extremely honest, conscientious, ambitious and thoroughly dedicated employee." (App. Ex. A, p4.)
Another co-worker, a female who is aware of Applicant's involvement with prostitutes, states "There is [sic] very few people that I trust more than [the Applicant] both at work and after work." (App. Ex. A, p5.) A similar high opinion is offered by another female co-worker who states in a letter that the Applicant "has demonstrated his ability to be a trustworthy and hard working individual." (App. Ex. A, p19.)
In his off-duty hours Applicant enjoys a healthy, active social life that involves him in amateur team sports such as softball, bowling, basketball and flag football. Members of Applicant's various sports team speak highly of his participation, leadership, and responsible behavior. One member states that the Applicant is conscientious and trustworthy in his duties as secretary/treasurer of a bowling league, and he can be counted upon to handle the league's funds with care and honesty. (App. Ex. A, p7.) Another writer praises Applicant for his efforts to "organize a fundraiser draiser to benefit worthy causes." (App. Ex. A, p8.)
As an additional matter in mitigation, Applicant testified credibly that he makes no attempt to hide his past behavior involving gambling and prostitutes. (Tr. 67-68.) In his daily relations with friends and co-workers, Applicant has been forthcoming about these activities as well as problems he has encountered in maintaining his security clearance. Considering all the evidence, it is found that Applicant is not susceptible to blackmail or coercion.
POLICIES
Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. The guidelines are divided into those that may be considered in deciding whether to deny or revoke an Applicant's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's request for access to classified information (Mitigating Conditions).
In addition to these guidelines the Directive provides that under the "whole person concept" the Administrative Judge shall also consider (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 voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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.
Based upon a consideration of the entire record, I find the following adjudicative guidelines have application in this case
GUIDELINE E - Personal Conduct.]:
Conditions that could raise a security concern and may be disqualifying include:
1. Reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances;
3. Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other official representative in connection with a personnel security or trustworthiness determination;
4. Personal conduct or concealment of information that may increase an individual's vulnerability to coercion, exploitation or duress, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail;
6. Association with persons involved in criminal activity.
Conditions that could mitigate security concerns include:
5. The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress.
7. Association with persons involved in criminal activity has ceased.
CONCLUSIONS
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 reliable information indicates that an Applicant for clearance may be involved in repeated instances of personal misconduct, whether on duty or off, that demonstrates poor judgment, unreliability, or reckless behavior. These personal characteristics, if carried over to a security environment, might result in a loss of classified information through Applicant's neglect, indifference, or design.
Upon consideration of the entire record, I conclude the following as to each allegation set forth in the SOR:
Applicant is an excellent worker in the defense industry, and for many years he has maintained a good reputation for strong effort, quality production, and a drive to see that all assigned tasks are completed accurately and on time. In his private life he is heavily involved in activities that are wholesome and meaningful, and he voluntarily contributes his time and effort to the welfare of his community.
On the other hand, during the fifteen-year period between 1984 and 1999 Applicant engaged in the hiring of prostitutes on a repeated basis, violating municipal statutes and community standards of behavior as well. Additionally, from 1993 to 1997 Applicant placed illegal bets on football games during the autumn season of each year, channeling his wagers through friends and sports acquaintances. Applicant's losses cost him about $1,000 per year during this period, but during 1998-2000 he lost only about $250 per year. These financial setbacks caused Applicant some monetary shortages, but he overcame them.
During two interviews with DoD investigative agents Applicant was asked whether he engaged in any illegal activities during the last seven years, and Applicant answered "No", except for traffic infractions. Applicant states he was embarrassed and at the same time unsure whether his occasional hiring of prostitutes and making commonplace football bets were, in a real sense, illegal or prohibited activities.
To be sure, the agent's question was deliberately broad, with no qualifications or limitations, requiring the Applicant to meet an impossible burden of recall. (In a strict sense, jaywalking would be included.) However, the Applicant was afforded two months to contemplate the question and to recall salient events which might require his admission. As a consequence, Applicant was obligated in the second interview to admit to his involvement with prostitution and illegal gambling in response to the agent's general question.
In reaching an ultimate conclusion regarding Applicant's eligibility for clearance, consideration is given to the Directive's Disqualifying Conditions, Mitigating Conditions, and the whole person concept. Each of the disqualifying factors and mitigating factors expressed in the Directive have been reviewed and applied to the circumstances of this case.
Factors supporting a denial of clearance are Applicant's misconduct involving illegal gaming and the hiring of prostitutes; his association with persons involved in unlawful acts; and his willful failure to reveal material information to the Government. Factors in support of clearance are Applicant's reform from his past unfavorable activities, and his credible intent to leave them behind for good.
In this case the Directive's whole person concept is particularly applicable. With respect to Applicant's hiring of prostitutes and his failure to be candid about it, the Applicant showed poor judgment. He also showed questionable maturity in his repeated illegal wagers on football games. The nature of the conduct was serious, and Applicant placed himself in a position of vulnerability to outside pressures.
However, Applicant has not hired prostitutes for well over two years, and he states a credible intent to avoid them in the future. Similarly, Applicant last bet on a football game about two years ago, and he is not likely to repeat this behavior. Regarding his failure to provide full and accurate information to the Government's agent, Applicant has learned a lesson from his experience and there is no reason to believe he will be anything less than honest in the future.
As to other mitigating factors under the whole person concept, Applicant is a productive worker in the defense industry, and he is highly regarded by his fellow employees as a conscientious, honest person with an excellent reputation for reliability and achievement. Similarly, in Applicant's off-duty life he is involved in wholesome and productive activities, and his friends and acquaintances give him high praise for his responsible community involvement.
Upon a consideration of all the evidence, it is concluded that Applicant has reformed his behavior, and his past misconduct no longer poses an obstacle to his request for a DoD security clearance.
FORMAL FINDINGS
Paragraph 1. Guideline E: FOR THE APPLICANT
Subparas. 1.a.-1.e.: For the Applicant
DECISION
In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant's request for a security clearance.
Burt Smith
Administrative Judge