DATE: April 12, 2002
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
ROGER C. WESLEY
APPEARANCES
FOR GOVERNMENT
Kathryn A. Trowbridge, Department Counsel
FOR APPLICANT
Paul J. Buckley, Esq.
SYNOPSIS
Applicant who used illicit substances over recurrent periods, experienced alcohol-related arrests and underwent in-patient drug and alcohol counseling and treatment in 1994 following a failed urinalysis, falsified his security clearance application (SF-86) and failed to correct his omissions in prompt fashion when afforded the opportunity to do so in an ensuing Defense Security Service (DSS) interview, does not extenuate or mitigate his omissions sufficiently to demonstrate the requisite good judgment, reliability and trustworthiness to overcome raised judgment and reliability concerns arising under personal conduct guidelines to meet minimum security clearance eligibility requirements under the Adjudication Guidelines and the E.2.3 factors. Clearance is denied.
STATEMENT OF THE CASE
On December 26, 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 a Statement of Reasons (SOR) to 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 Applicant, and recommended referral to an administrative judge to determine whether clearance should be granted, continued, denied or revoked.
Applicant responded to the SOR on January 22, 2002, and requested a hearing. The case was assigned to this Administrative Judge on February 8, 2002, and on February 11, 2002, was scheduled for hearing. A hearing was convened on March 7, 2002, for the purpose of considering whether it would be clearly consistent with the national interest to grant, continue, deny or revoke Applicant's security clearance. At hearing, the Government's case consisted of three exhibits; Applicant relied on five witnesses (including himself) and three exhibits. The transcript (R.T.) of the proceedings was received on March 14, 2002.
Applicant is a 39-year old systems integrator employed by a defense contractor who seeks a security clearance.
Summary of Allegations and Responses
Applicant is alleged to have falsified his SF-86 executed in September 1999 by omitting: (a) omitting his two alcohol related arrests of 1980 and 1984 when responding no to question 24, (b) omitting his use of cocaine twice monthly from late 1992 to at least December 1983 when responding no to question 27, ©) omitting his testing positive for cocaine in an administered random urinalysis test as an employment condition of employment in a sensitive position when answering no to question 28 and (d) omitting his being previously diagnosed for cocaine addiction and alcohol abuser and undergoing in-patient drug and alcohol counseling and treatment in January 1994 when answering no to question 30. Additionally, Applicant is alleged to have concealed his past use of illegal drugs when questioned by a DSS agent in a March 2000 interview.
Based on his SF-86 and DSS interview omissions, Applicant is alleged to have committed criminal conduct by violating 18 U.S.C. Sec. 1001 (a felony).
For his response to the SOR, Applicant admits his omissions while denying any intent to falsify.
Relevant and Material Factual Findings
The allegations covered in the SOR and admitted to by Applicant are incorporated herein by reference adopted as relevant and material findings. Additional findings follow.
Applicant is intelligent and well educated, holding a bachelors degree in computer science from an accredited university. He has no identified disabilities of any kind that might impair his ability to understand Government security forms.
While employed by the Army (between 1981 and 1982), Applicant experimented with marijuana. Not until he moved out of his mother's home and into an apartment-sharing relationship with a roommate did he begin to snort cocaine: not habitually, but only recreationally about twice a month when socializing at parties. This recreational use of cocaine persisted for about a year before he recognized the harm it was causing and quit it altogether. During this time he purchased small amounts of the substance for his personal use.
Applicant was employed as a security officer and security supervisor with a prior civilian employer between 1984 and February 1995. As a condition of employment, he was required to submit to random urinalysis for detection of drugs. In an otherwise routine random urinalysis he submitted to in the Fall of 1993, he tested positive for cocaine (his first such positive test) and was given a company warning and suspended from work. Several months later (in December 1993) Applicant submitted to another random urinalysis, which once again produced a positive result. This brought another suspension from his employer, required entry into a drug abuse program, and demotion from his security supervisor position to the post of security officer (see ex. 3).
Beginning in January 1994, Applicant (acting on his prior employer's directions) entered into a two-week inpatient drug rehabilitation program, which he followed with recommended outpatient counseling for about a year. Applicant ensures he has not used any illegal drugs since his last positive test in 1993. After completing his treatment, he moved home to live with his mother and ceased associating with individuals who use illegal drugs. He has not used illegal drugs since he lasted tested positive for cocaine.
When asked to execute his SF-86 in September 1999, Applicant withheld information regarding his (a) two alcohol-related arrests, (b) prior use and purchases of illegal substances, (c) use of illegal substances while holding a sensitive position and his in-patient counseling, and (d) treatment for illegal substance abuse following his failed random urinalysis test in January 1994. Applicant sought no advice from anyone from his employer's security office about filling out his SF-86 (see R.T., at 37) and freely attributes each of his omissions to his concern at the time that disclosure would negatively impact upon his employment (see ex. 2).
In a follow-up interview conducted by a DSS agent in March 2000, Applicant was afforded an opportunity to disclose his prior drug use and alcohol-related arrests, but limited his disclosure to just his alcohol-related incidents. When specifically asked by the agent whether he had ever used illegal drugs, he answered in the negative.
Over six months later (in September 2000), the same DSS agent returned to interview Applicant about his drug use. Applicant acknowledges that the agent seemed to be armed with adverse information about covered areas of his SF-86 omissions. To this extent, he can be characterized as "tipped" about what he believed the agent had independently compiled about his use of drugs and alcohol (see R.T., at 40). Being tipped, though, is not enough to equate with confrontation. Before he could be directly confronted with the facts about his drug activity, Applicant fully disclosed his arrests, the extent of his prior involvement with illegal substances, and his in-patient counseling/treatment (see ex. 2). He also expressed remorse for the bad judgment he exhibited in failing to disclose his illegal substance abuse on his SF-86 and during his previous March 2000 DSS interview. Applicant's disclosures are accepted as truthful, albeit late.
Applicant is highly regarded by colleagues and supervisors with both his employer and National Guard command. All of his supervisors and colleagues accord him high marks for overall reliability and trustworthiness. And he has received excellent performance evaluations from his employer and command. Not all of his references, though, appear to have been made fully aware of his SF-86 and DSS interview omissions, however, and the value of their positive assessments must be discounted considerably when gauging Applicant's reliability and trustworthiness for meeting his fiducial responsibilities to the US Government (see R.T., at 65 (witness B), 74 (witness C), and 79 (witness D)).
The Adjudicative Guidelines of the Directive (Change 4) list "binding" policy considerations to be made by Judges in the decision making process covering DOHA cases. The term "binding," as interpreted by the DOHA Appeal Board, requires the Judge to consider all of the "Conditions that could raise a security concern and may be disqualifying" (Disqualifying Conditions), if any, and all of the "Mitigating Conditions," if any, before deciding whether or not a security clearance should be granted, continued or denied. The Guidelines do not require the Judge to assess these factors exclusively in arriving at a decision. In addition to the relevant Adjudicative Guidelines, judges must take into account the pertinent considerations for assessing extenuation and mitigation set forth in E.2.2 of the Adjudicative Process of Enclosure 2 of the Directive, which are intended to assist the judges in reaching a fair and impartial common sense decision.
Viewing the issues raised and evidence as a whole, the following adjudication policy factors are pertinent herein:
Basis: conduct involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.
Disqualifying Conditions:
DC 2 The deliberate omission, concealment, falsification or misrepresentation 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 status,
determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.
DC 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.
Mitigating conditions:
MC 2 The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily.
MC 3 The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts.
Disqualifying Conditions:
DC 1 Allegations or admission of criminal conduct.
DC 2 A single serious crime or multiple lesser offenses.
Mitigating Conditions:
MC 1 The criminal behavior was not recent.
MC 2 The crime was an isolated incident.
MC 6 There is clear evidence of successful rehabilitation.
By virtue of the precepts framed by the Directive, a decision to grant or continue an Applicant's request for security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest. Because the Directive requires Administrative Judges to make a common sense appraisal of the evidence accumulated in the record, the ultimate determination of an applicant's eligibility for a security clearance depends, in large part, on the relevance and materiality of that evidence. As with all adversary proceedings, the Judge may draw only those inferences which have a reasonable and logical basis from the evidence of record. Conversely, the Judge cannot draw factual inferences that are grounded on speculation or conjecture.
The Government's initial burden is twofold: (1) It must prove any controverted fact[s] alleged in the Statement of Reasons and (2) it must demonstrate that the facts proven have a nexus to the applicant's eligibility to obtain or maintain a security clearance. The required showing of nexus, however, does not require the Government to affirmatively demonstrate that the applicant has actually mishandled or abused classified information before it can deny or revoke a security clearance. Rather, consideration must take account of cognizable risks that an applicant may deliberately or inadvertently fail to safeguard classified information.
Once the Government meets its initial burden of proof of establishing admitted or controverted facts, the burden of persuasion shifts to the applicant for the purpose of establishing his or her security worthiness through evidence of refutation, extenuation or mitigation of the Government's case.
Applicant comes to these proceedings with a praiseworthy civilian and military record, but also with raised security concerns over his omission of alcohol-related arrests, illegal substance involvement and drug-related counseling/treatment in his executed SF-86 and ensuing DSS interview, that cloud the confidence in his judgment, reliability and trustworthiness required to access him to classified information.
Falsification issues
Potentially serious and difficult to reconcile with the trust and reliability requirements for holding a security clearance are the timing and circumstances of Applicant's respective SF-86 omissions of his alcohol-related arrests, illegal substance involvement, and in-patient counseling and treatment. So much trust is imposed on persons cleared to see classified information that deviation tolerances for incidents of trust betrayal are calibrated narrowly.
Applicant falsified his SF-86 in several material respects: omitting his two alcohol-related arrests, his past use and purchases of cocaine and his history of in-patient counseling and treatment for illegal substance abuse. He makes no claim of misunderstanding the questions, which were posed in a straightforward way in the questionnaire. Applicant attributes his omissions to concern about how disclosure of the adverse information would impact on his employment: understandable certainly, but historically considered by our Appeal Board to be insufficient to avert drawn conclusions of knowing and wilful concealment.
Motivation is the key here and provides the all too critical backdrop by which Applicant's omission explanations must be assessed, both in the way he approached his SF-86 and his ensuing first DSS interview (viz., the March 2000 interview). Even obvious omissions of material facts (to alcohol-related arrests, illegal drug involvement and in-patient counseling and treatment, as here) may be mitigated where circumstances indicate the declarant was under some mistaken impression or understanding when he executed a government form (such as an SF-86) or signed off on a deficient signed, sworn statement. Cf. Raybourne v. Gulf Atlantic Towing Corp., 276 F.2d 90, 92 (4th Cir. 1960). Disqualifying conditions (DC) 2 and 3 of the Directive's Change 4 amendments and relevant case authorities underscore the importance of motive and subjective intent considerations in gauging knowing and wilful behavior. Cf. United States v. Chapin, 515 F.2d 1274, 1283-84 (DC Cir. 1975); United States Steinhilber, 484 F.2d 386, 389-90 (8th Cir. 1973); United States v. Diogo, 320 F.2d 898, 905 (2d Cir. 1963).
But Applicant makes clear that he approached questions 24, 27, 28 and 30 of his SF-86 with the intent to withhold as much adverse information about his arrests, drug use and drug counseling/treatment as he could reasonably escape with. His omissions were knowing, deliberate and material to a determination about his clearance suitability. They invite application of Disqualifying Conditions (DC) for personal conduct of the Adjudicative Guidelines: DC 2 (falsification of a security questionnaire) and DC 3 (providing false information to an investigator).
Mitigation is difficult to credit Applicant with, since he failed to take advantage of the first obvious opportunity afforded him to correct his earlier SF-86 omissions in his initial DSS interview. Not only has our Appeal Board found the use of mitigating condition (MC) 2 of the Adjudicative Guidelines for personal conduct (isolated, corrected falsification) to be unavailable to applicants seeking mitigation by treating the omission as isolated, but it has denied applicants availability of MC 3 (prompt, good faith disclosure) as well in circumstances (as here) where the applicant has failed to take advantage of an earlier DSS interview opportunity. Compare ISCR Case No. 97-0289 (January 1998) with DISCR Case No. 93-1390 (January 1995).
Applicant in the present case is on record with bypassing his first afforded opportunity to correct his omissions and waiting until his second DSS interview months later (in September 2000) to come forward with the true facts about his covered actions. Our Appeal Board has been quite clear for a number of years now that an applicant cannot be credited with a prompt, good faith correction where he has tacitly repeated his omissions and waited over six months for another DSS interview before electing to come forward with corrections. See DISCR Case No. 93-1390 (January 1995). Applicant, accordingly, may not take advantage of either MC 2 (isolated omissions) or MC 3 (prompt, good faith correction of the falsification) of the Adjudicative Guidelines for personal conduct.
No question but that Applicant has inspired confidence and trust among his defense contractor colleagues and National Guard command (further reflected in his excellent performance appraisals). But in the face of his repeated acts of omission, his favorable character evidence alone is not enough to absorb security concerns extant with the Government over his failure to be truthful through both his SF-86 and initial DSS interview. Mitigation is further weakened by the qualifications expressed by most of his character witnesses: lack of awareness of Applicant's omissions of material information on his SF-86 and in his initial face-to-face DSS interview.
Considering all of the evidence produced in this record and the available guidelines in the Directive (inclusive of the E.2.2 factors), unfavorable conclusions warrant with respect to sub-paras. 1.a through 1.e of Guideline E.
Criminal coverage of falsification issues
That none of Applicant's SF-86 omissions resulted in formal charges and adjudication against Applicant does not mean that the falsification issues may not be raised and considered anew in a clearance proceeding such as the present. Our Appeal Board has repeatedly stated that the Government can prove applicant engagement in criminal conduct, even in the absence of a criminal conviction. Cf. ISCR Case No. 94-1213 (June 7, 1996). Applicant's ultimate coming forward with his full disclosure of his prior arrest and drug involvement in a second DSS interview, while insufficient to mitigate the security implication of his prior falsification under the personal conduct guidelines, is sufficient to mitigate any criminal implications that might be drawn from his SF-86 omissions. Enough time is passed on these covered allegations (almost three years) to mitigate this conduct under both MC 1 (criminal behavior not recent) and MC 2 (isolated conduct), and to a more limited extent on the strength of MC 6 (clear evidence of successful rehabilitation) by considering Applicant's overall trustworthiness he has demonstrated with his professional colleagues and National Guard command.
Based on a full review of the evidence and drawn inferences from the developed record, favorable conclusions warrant with respect to sub-para. 2.a of Guideline J.
In reaching my recommended decision, I have considered the evidence as a whole, including each of the factors set forth in the Procedures section (paragraph 6) of the Directive, as well as E.2.2 of the Adjudicative Process of Enclosure 2 of the same Directive.
In reviewing the allegations of the SOR and ensuing conclusions reached in the context of the FINDINGS OF FACT, CONCLUSIONS, CONDITIONS, and the factors listed above, this Administrative Judge makes the following FORMAL FINDINGS:
GUIDELINE E (PERSONAL CONDUCT): AGAINST APPLICANT
Sub-para. 3.a: AGAINST APPLICANT
Sub-para. 3.b: AGAINST APPLICANT
Sub-para. 3.c: AGAINST APPLICANT
Sub-para. 3.d: AGAINST APPLICANT
Sub-para. 3.e: AGAINST APPLICANT
GUIDELINE J (CRIMINAL CONDUCT): FOR APPLICANT
Sub-para. 4.a: FOR 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 Applicant's security clearance.