DATE: February 24, 2003

-----------------------

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

APPEARANCES

FOR GOVERNMENT

Jennifer I. Campbell, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

The Applicant's intentional falsifications on his security clearance application and during his interview with a Special Agent from the Defense Security Service have not been mitigated by sufficient evidence of reform and rehabilitation. Clearance is denied.

STATEMENT OF THE CASE

On July 30, 2002, 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 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 a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on September 30, 2002, notarized on October 2, 2002, and requested a hearing before a DOHA Administrative Judge. This case was assigned to the undersigned on November 26, 2002. A notice of hearing was issued on December 10, 2002, scheduling the hearing for January 29, 2003. At the hearing the Government presented eight exhibits and called one witness. The Applicant presented nine exhibits and testified on his own behalf. The official transcript (Tr.) was received on February 13, 2003.

The Applicant is 39 years old, he has a high school diploma and some college. He is employed as a Computer Operations Analyst for a defense contractor. He is applying for a security clearance in connection with his employment.

The Government opposes the Applicant's request for a security clearance, on the basis of 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 E - Personal Conduct). The Government alleges that the Applicant is ineligible for clearance because he intentionally falsified material aspects of his personal background during the clearance screening process.

The Applicant completed a Security Clearance Application (Standard Form 86) dated July 17, 2002 that was electronically transmitted. In response to question 24, which asked, "Have you ever been charged with or convicted or any offense(s) related to alcohol or drugs ?" The Applicant answered "No". (See, Government Exhibit 1). This was not a truthful statement. The truth is that the Applicant was arrested on December 10, 1995, and charged with (1) Driving Under the Influence of Alcohol and/or drugs, (2) Driving while .08% or More blood alcohol content. The charges were reduced, and the Applicant was found guilty of Reckless Driving on Highway, with a finding by the court that alcohol and/or drugs were involved. The Applicant was also arrested on October 31, 1997, and charged with (1) Driving Under the Influence of Alcohol and/or Drug, and (2) Possession of Less than one ounce of Marijuana in vehicle. The charges were reduced, and the Applicant was found guilty of Wet Reckless Driving/No Injury.

The Applicant testified that this was the first time he had ever used an electronic form when updating his security information on his security clearance application and he experienced many problems. He stated that the entire process was extremely poor and confusing. It was never fully explained what the new process was, nor was he given any instructions on the new process of reporting. He stated that a global e-mail was sent to everyone in the department instructing them to fill out security documents by a certain date. Upon reflection, the Applicant believes that he did not give the time to each section that it warranted and he did not read every question before answering it. He further stated that the new format for reporting information did not save data correctly, he had to re-input data that he had previously entered, possibly overlooking areas that were missed, the process did not allow him to review and sign the document before sending it, and there was no privacy in which to fill out the forms. His department was required to use a common PC for the whole group, which sits in the middle of the work area.

As a result, the Applicant contends that nothing was done deliberately. He states that he did not deliberately omit any information. He realizes that he should have paid more attention to what he was doing. He states that he just filled out the form wrong and made a terrible mistake.

When questioned as to whether he knew he was filling out a security clearance application when he was inputting information on the computer, the Applicant initially indicated that he was not sure what he was filling out. The Applicant later testified that when he was inputting the information on the computer, he referred to a copy of his old security clearance application for addresses and other information. He also admitted that the entire process took time, was not a slam dunk and occurred over a two week period. (Tr. pp. 117-118).

The same security clearance application, at question 30, asked him "In the last seven years has your use of alcoholic beverages resulted in alcohol related treatment or counseling?" The Applicant responded "NO". This was a false answer. The Applicant failed to disclose that he received alcohol education counseling for three to four months in 1996, and that he has attended both court ordered and voluntary Alcoholics Anonymous meetings. The Applicant explained that he did not disclose his attendance at Alcohol Anonymous because he did not think that information was traceable and he believed it to be anonymous. (Tr. p. 98).

During an interview with a Special Agent from the Defense Security Service (DSS) on March 8, 2001, the Applicant was asked to explain his unlisted alcohol arrest in October 1997. He was then asked if he had any other Driving Under the Influence arrests. The Special Agent who conducted the interview of the Applicant testified that the Applicant initially responded "No". He later recanted and admitted an arrest in 1989 or 1990, but gave false and misleading information concerning the arrest. (See, Government Exhibits 7 and 8). The Applicant also stated that he had not been driving the vehicle at the time, but that he had a designated male driver. This information again, was not true. The Applicant simply lied. The police report of the incident indicates that the arrest actually took place on December 10, 1995, and that he had been stopped for Driving Under the Influence of Alcohol while driving his vehicle. (See, Government Exhibit 5).

During the same interview with the same Special Agent from DSS the Applicant was asked if he had any drug related arrests to which he replied "NO". This was a false answer. The Applicant had in fact been charged with a drug related offense during his arrest on October 31, 1997, after marijuana had been recovered from his pants pocket. The Applicant explained that he did not tell the Special Agent about the marijuana that was found in his pants because it was not his, and the charge had been dropped. (Tr. pp. 108-109).

Paragraph 2 (Guideline J - Criminal Conduct). The Government alleges that the Applicant is ineligible for clearance because he violated Title 18, United States Code, Section 1001, a felony by falsifying his security clearance application of July 17, 2000, and by providing false information to a DSS Special Agent on arch 8, 2001, during his background investigation. The facts are set forth under paragraph 1, above.

Enclosure 2 of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case:

Guideline E (Personal Conduct)

Condition 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;

Conditions that could mitigate security concerns:

None.

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.

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.

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 instances of dishonesty 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 a security clearance.

In this case the Government has met its initial burden of proving that the Applicant intentionally falsified material facts in his security clearance application and during an interview with a Special Agent from DSS (Guideline E). This evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility.

Considering all of the evidence, the Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case.

Admittedly, the electronic Personnel Security Questionnaire has created problems for some people who are not familiar with the process. However, in this case, the Applicant has blamed the electronic Personnel Security Questionnaire for his own attempt to conceal material information from the Government. This blame is not justified. The Applicant has not been frank and truthful with the Government concerning answers to questions about his arrests in December 1995 and October 1997. I have heard the Applicant's excuses for not providing truthful information to the Government on his application, and to the Special Agent during his background interview, and I do not find them credible.

With respect to his 1995 arrest, the Applicant has provided several versions of the facts. He provided different information to the Special Agent during his background interview from that information that is contained in the police records of the incident. Furthermore, his testimony at the hearing did not conform with the information contained in the police records. Under the circumstances I have no choice other than to find against the Applicant concerning his attempt to conceal information from the Government during his interview with DSS.

Concerning his 1997 arrest, I also find that the Applicant intentionally omitted the Driving Under the Influence and marijuana charges from his security clearance application with the intent to deceive the Government. The fact that the marijuana was not his, and the charge was ultimately dismissed, has no bearing on whether he should reveal it to the Government. Furthermore, the Applicant was given adequate time to complete the application, over a period of two weeks. If he did not spend the time on it that he should have, only he is to blame.

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 personal background. This Applicant has not demonstrated that he is trustworthy, and does not meet the eligibility requirements for access to classified information. Accordingly, I find against the Applicant under Guideline E (Personal Conduct).

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 Paragraphs 1 and 2 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.: Against the Applicant.

Subpara. 1.b.: Against the Applicant.

Subpara. 1.c.: Against the Applicant.

Subpara. 1.d.: Against the Applicant.

Paragraph 2: Against the Applicant.

Subpara. 2.a.: 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 the Applicant.

Darlene Lokey Anderson

Administrative Judge