DATE: March 29, 2002

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JOHN G. METZ, JR.

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Esquire, Department Counsel

FOR APPLICANT

Pro Se

STATEMENT OF THE CASE

On 18 October 2001, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, stating that DOHA could not make the preliminary affirmative finding ⁽¹⁾ that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On 5 November 2001, Applicant answered the SOR and requested an administrative decision on the record. Applicant did not respond to the Government's File of Relevant Material (FORM)--issued 29 January 2002. The record in this case closed 10 March 2002--the day the response was due at DOHA. The case was assigned to me on 27 March 2002; I received the case the next day to determine whether clearance should be granted, continued, denied, or revoked.

FINDINGS OF FACT

Applicant admitted the factual allegations of the SOR; accordingly, Applicant's admissions are incorporated as findings of fact.

Applicant--a 43-year old employee of a defense contractor--seeks to retain the access to classified information he has apparently held since 1981.

Between August 1992 and March 1999, Applicant had three run-ins with law enforcement officials. ⁽²⁾ On 13 August 1992, Applicant was arrested and charged with carrying a firearm without a license and carrying a firearm on public streets. Applicant was found guilty--contrary to his pleas--fined, and awarded eight months non-reporting probation (Item 10). The police report describes the circumstances of the arrest:

The above defendant was arrested after police arrived on the scene of a man with a gun call and observed the defendant getting into a vehicle which witnesses said contained a gun. After further investigation it was learned that the defendant had a .45 caliber pistol under his front seat. ⁽³⁾

On 31 March 1999, Applicant described this arrest in substantially different terms (Item 6):

In about August 1992, I was charged by the [city] Police Department with possession of a gun in a vehicle. This was a misdemeanor, not a felony, because the gun was registered. The .45 automatic gun was in the vehicle because I purchased it with the intent to keep it in the house, for protection, but with two small boys, my wife was concerned and demanded that the gun stay in the vehicle. I reside in [city] and due to the high crime, home protection is important. I was stopped for possibly running a stop sign. I did not receive a ticket, but was charged with possession of the gun in the vehicle. I did not have a permit to carry a gun. I appeared in court and I pled guilty to a misdemeanor. I was fined about $145.00 total, which I paid. I was on unsupervised probation for six months. (Emphasis added). ⁽⁴⁾

On 1 August 1998, Applicant was arrested for DUI at a vacation spot not far from his home. He was found guilty, fined, ordered to attend 12 hours of alcohol awareness class, and had his license suspended for six months. The alcohol influence report prepared a the time of arrest (Item 9), revealed that Applicant had a blood alcohol content of .15% on the two breathalyzer tests administered at the time of his arrest, and was observed to have an odor of alcohol on his breath, as well as bloodshot, watery eyes.

Applicant's sworn statement to the Defense Security Service on 31 March 1999 (Item 6) acknowledged his responsibility for the incident:

In August 1998, I was charged with Driving While Intoxicated (DWI), by the [vacation spot] Police Department. I was drinking beer, about 2-4 glasses, at a restaurant/bar in [vacation spot]. After I left, about 4 blocks away, I was stopped. I received a 1.01 Blood Alcohol on my alcohol related breath test. In about September 1998, I appeared in a [vacation spot] Municipal Court, was found guilty, fined $380.00, which I paid, and my drivers license was suspended for six months. Also I was required to complete the Intoxicated Driver's Resourse Center education class. I attended classes in [nearby city] which I successfully completed.

Yet, as with his Answer to the August 1992 arrest, Applicant's Answer to the August 1998 arrest moves away from accepting responsibility for the arrest:

. . . I was charged with D.U.I. while on vacation in [vacation spot] I feel to this day I should never have been stopped. I was given a road side test one block from my family vacation home I had on shorts and flip flops that my daughter made me were (sic) because I always whore (sic) shoes or sneaks and she wanted me to look cool she was six at the time. I asked one officer if I put on some real shoes that were in the trunk he said OK I opened the trunk and he said stop I stopped he said now we can search it since it's open. I started to laugh because as a man of color this has happen to me before in [vacation spot].

The officer said move to the pavement I slipped because of the flip flops I was wearing did not give me much support I waited there whil they searched, the trunk was full of kid's toys cloths for the family and food for two weeks. When they were done they told me I could repack it when I was done I thought that they would let me go. They said that I failed the test in was under arrest for D.U.I. because I slipped. I hired my brother who by this time had graduated from Harvard law school two months before. When we went to court it was like a joke to the police, DA and the judge they seem to all be friends. The DA said I could ask for a jury trial but right now I was only charged with a misdemeanor 12 hours of class over two days loss of license 6 months 497$ (sic) fine. He said that I was not being charged with reckless driving, reckless endangerment and failure to follow an officer's orders. I took the D.U.I. without a fight. I could not risk my children future on a small towns racism. I loss one kidney 38 years ago when I was 5 because I was hit by a drunk driver.

On 20 March 1999, Applicant was arrested and charged with simple assault and recklessly endangering another person as a result of a domestic incident with his wife on 23 February 1999. Prosecution was ultimately withdrawn when the complainant declined to pursue the case further; however, Applicant was ordered to attend aggression counseling with the understanding that if the counseling was completed successfully and Applicant was not involved in any further incidents in the next 90 days, the charges would be dismissed. The Affidavit of Probable Cause for Arrest Warrant (Item 8) described the incident (consistent with an incident report prepared on the day of the altercation):

On Tuesday, 2-23-99, the complainant, [named], had a verbal confrontation with her husband, the accused [named], who resides at [address]. The complainant arrived at that location to pick up their son, who was staying with his father while the complainant was at school. During the altercation, the accused [named] punched the complainant several times with his fists, causing contusions and bruises that the complainant received in her face area. This was observed by the assigned detective who took photos of the complainant's injuries. The complainant did not receive any hospitalization, but indicated that she was going to the hospital after the police interview.

Applicant volunteered this incident during his 31 March 1999 subject interview (Item 6):

I have had a recent incident that I would like to mention, that occurred after I completed my EPSQ, on 17 November 1998. In February 1999, about the 23d, I was charged with misdemeanor battery, after I hit my wife with my hand, on her face. We were arguing and my wife, [named], pushed me and I become mad. The reason we were arguing was because of problems in our relationship. A restraining order was issued that evening. I have to stay away from her for one year. . . My court date for the incident in 18 May 1999.

In his Answer, Applicant again attempted to vitiate the import of his conduct in this incident:

Me and my wife at the time were separated she left the family for someone she met in college at the time we had four chidden (sic) two in high school one 2 years old and the other seven I filed for divorce. I was told after the divorce that she wanted to get a domestic abuse charge on Me so that she could get custody of the kids and child support so she made it happen by starting a Fight we me she called the police they did not believe her she had to file with the DA. she (sic) told me that She would drop the charges if I gave up my kids and changed the divorce to no fault I did and she told the judge that it was partly her fault they dropped all charges and said that I should go to counseling I did. Now I am remarried and paying 986$ (sic) per month in child support.

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines to be considered in evaluating an individual's security eligibility. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. Each adjudicative decision must also assess the factors listed in Section F.3. and in Enclosure (2) of the Directive. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance, as the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc.

Considering the evidence as a whole, the following adjudication policy factors are most pertinent to this case:

E2.A10.1.1. The Concern: A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.

E2.A10.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A10.1.2.1. Allegations or admissions of criminal conduct, regardless of whether the person was formally charged;

E2.A10.1.2.2. A single serious crime or multiple lesser offenses.

E2.A10.1.3. Conditions that could mitigate security concerns include:

None.

Burden of Proof

Initially, the Government must prove controverted facts alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance. Assessment of an applicant's fitness for access to classified information requires evaluation of the whole person, and consideration of such factors as the recency and frequency of the disqualifying conduct, the likelihood of recurrence, and evidence of rehabilitation.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."

CONCLUSIONS

The Government has established its case under Guideline J. Although the Applicant's offenses are comparatively minor, they nevertheless constitute a pattern of misconduct which casts doubt on Applicant's judgement, reliability, and trustworthiness. The misconduct is recent (although I recognize that the most recent incident is three years old), not isolated, and there is no clear evidence of successful rehabilitation. The Government having established its case, Applicant has a heavy burden to establish evidence in extenuation, mitigation, or rehabilitation. Applicant has failed to meet this burden. Indeed, the significant differences between the official record descriptions of the three incidents and Applicant's descriptions of those same events suggest Applicant has not taken full responsibility for his actions. I find Guideline J. against Applicant.

Paragraph 1. Guideline J: AGAINST THE APPLICANT

Subparagraph a: Against the Applicant

Subparagraph b: Against the Applicant

Subparagraph c: Against the Applicant

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

1. Required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated January 2, 1992--and amended by Change 3 dated 16 February 1996, and by Change 4 dated 20 April 1999 (Directive).

2. Two of which he voluntarily reported on his 14 October 1998 Security Clearance Application (Item 5) and the last of which he voluntarily reported during his subject interview on 31 March 1999.

3. The police report also reflects that Applicant was originally charged with misdemeanor offenses. The court record also reflects that Applicant appeared with counsel.

4. Applicant's Answer (Item 4) provides further embellishment of the circumstances of this arrest. While reiterating his claim that he bought the gun legally, had it in the vehicle because of his wife's concern for his children, and had it discovered in a routine traffic stop, Applicant asserts for the first time that the disposition of the case was pursuant to a plea arrangement: "At the hearing the DA offer me two misdemeanors a $145 fine and 8 months non reporting probation. I talked to a lawyer who would take my case for 3000$ (sic) two up front and for that he would delay my case for up to a year he said the search was illegal and that I could win at trial. I was never in jail before in my life I was 34 years old with two young children. I did not have any money to fight the case So I took the DA's offer."