DATE: December 30, 2002

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

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JOHN R. ERCK

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Prior to completing her SF 86 (Security Clearance Application) in early January 1999, Applicant, who has lived in the United States since only November 1989 and who speaks English as a second language, had been suspended from employment for misconduct by her previous employer, and had been named a defendant in a complaint and judgment arising from litigation over an automobile accident involving a vehicle stolen from her in July 1997. She answered "no" to questions 20 and 40--that asked her about employment termination under unfavorable circumstances and her involvement in pending civil actions--and credibly testified she had not been terminated by her former employer under adverse circumstances when she completed the SF 86, nor was she aware of the complaint and judgment filed against her. The misconduct for which her previous employer suspended and later fired her has been mitigated; it was an isolated event that occurred 4 years ago, and there is evidence of Applicant's successful rehabilitation. Clearance is granted.

On May 1, 2002, 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 modified, and Department of Defense Directive 5220.6, "Defense Industrial Personal Security Clearance Review Program" (Directive), dated January 1, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant which detailed reasons why DOHA could not make the preliminary finding under the Directive that it is clearly consistent with the national interest to grant a security clearance for Applicant and recommended referral to an Administrative Judge to determine whether a security clearance should be granted.

Applicant answered the SOR on May 31, 2002, and requested a hearing before a DOHA Administrative Judge. The case was assigned to me on August 19, 2002. On September 24, 2002, a hearing was convened for the purpose of considering whether it is clearly consistent with the national interest to grant Applicant's security clearance. The Government's case consisted of three exhibits. Applicant relied on four exhibit, her own testimony, and the testimony of one other witness. A transcript (Tr.) of the proceeding was received on October 3, 2002.

The SOR alleges security concerns are raised by Applicant's conviction of a 4^th degree misdemeanor offense, and by her falsification of material facts on a security questionnaire she completed in January 1999. In her SOR answer, Applicant admitted she had pleaded guilty to a reduced charge of "Unauthorized Use of Property", but denied the remaining SOR allegations. I accept Applicant's admission, and after a complete and thorough review of the evidence of record, and upon due consideration of the same, I make the following additional findings of fact:

Applicant is 34-year-old foreign-born employee of a DoD contractor--for whom she has worked since December 1998. She testified she is currently "a technician who works with animals" (Tr. 65). She emigrated to the United States (from Panama) in November 1989 after meeting and marrying her husband (a member of the U.S. Armed Forces) in her native country in October 1989. She became a U.S. citizen in April 1997. She and her husband divorced in January 1996; she is now a single parent of two children ages 12 and 11. English is her second language and she continues to work on improving her proficiency (Tr. 26)

A concern has arisen about Applicant's suitability to be granted a security clearance ⁽¹⁾ because of her "involvement" in two events, one occurring in approximately July 1997, the other occurring in November 1998. The first event commenced with her purchase of a 1981 automobile for reasons she has not satisfactorily explained--since she was/is a single person who already owned a much newer vehicle (Tr.63). She had this vehicle licensed, but did not purchase insurance for it (Tr. 62-63). Shortly after purchasing it, she decided to sell it. Before she could resell the car, it was stolen and involved in an accident (on July 10, 1997) that caused damage to another vehicle (SOR Answer). Applicant went to the police station shortly after the accident and signed the car over to the police since the car was not driveable, and she did not have the money to get the car out of the impound lot. At the time, she did not realize she needed to file a stolen car report. Several months later (November 1997), Applicant's driver's license was suspended by the State Bureau of Motor Vehicles (SBMV) because a car licensed to her and uninsured, had been involved in an accident. Applicant succeeded in having her license restored by persuading the SBMV she had liability insurance and had not been involved in the accident in which her 1981 automobile damaged another vehicle (SOR Answer). Applicant filed a stolen car report incident to the suspension of her driver's license. She credibly claims she did not hear anything more about the car or the accident until January 1999 (after she had completed the SF 86) when she learned the insurer of one the vehicles had obtained a judgment ⁽²⁾ against her (Tr. 59). At one time, the Post Office had notified her of a registered letter; however, when she went to pick it up, the Post Office would not give her the letter because it bore not her name, but the name of her ex-husband's current wife (SOR Answer). As a consequence of not knowing a complaint had been filed and a judgment entered against her, Applicant answered "no" to question 40 ⁽³⁾ on the SF 86 she completed on January 5, 1999.

The insurance company obtained and sustained a default judgment against Applicant by persuading the Court she had been properly notified of their complaint, that she lied about the vehicle being stolen, and by arguing through innuendo and suggestion, she had been driving the 1981 vehicle or was somehow involved in the accident (Gov. Exh. 3). The record evidence does not support a finding Applicant was involved in the accident, nor is there any evidence to contradict her testimony the vehicle was stolen. Even if the insurance company persuaded the Court Applicant knew or should have known a complaint had been filed against her, the Court's conclusion is not binding on the question of whether Applicant's failure to list this litigation in response to question 40 was a knowing and willful falsification. The Court did not hear Applicant's testimony; the Court did not have an opportunity to observe her demeanor and appearance. I had that opportunity and I found her testimony denying knowledge of a complaint being filed against her or a judgment being entered against her (Tr. 58-59), to be credible and truthful.

The second event in which Applicant was involved occurred around Thanksgiving 1998. For six years preceding that date, she had been employed by Company A, a large department store in the metropolitan area where she has resided since emigrating to the United States. On that date while working at the cash register, she undercharged one customer--from the same ethnic background--approximately $100.00 on several items of merchandise. While Applicant had some discretion to discount items at the cash register, her discounts of that day far exceeded her authority. Store security caught her undercharge and immediately escorted her to the office of the "store director," (Gov. Exh. 2), where she was informed she was being suspended for two weeks. She was told Company A would call her in two weeks with "a decision as to what they were going to do" (Gov. Exh 2). Two months later, Applicant received a summons from the county municipal court informing her that Company A had filed a complaint against her charging her with "accomplice to theft." With the assistance of a public defender, Applicant pled no contest to a reduced charge of "unauthorized use of property." No evidence of any court proceedings was presented at the hearing. Applicant testified she did not receive a paycheck for the last two weeks of work (Tr 73), and only about one-fourth of her retirement contributions were returned to her (Tr. 73-74).

At the time she was suspended, Applicant had already applied for employment with her current employer. During her suspension she was offered a position and began working on December 16, 1998. Although she had been suspended from employment by Company A, Applicant did not change jobs because she had been suspended or terminated. She accepted a position with her current employer because it offered more pay and more opportunity (Tr. 40). On January 5, 1999, she was asked to complete an SF 86 (Security Clearance Application). She answered "no" to question 20 which asked: Has any of the following happened to you in the last 10 years?

- Fired from a job

- Quit a job after being told you'd be fired

- Left a job by mutual agreement following allegations of misconduct

- Left a job by mutual agreement following allegations of unsatisfactory performance

- Left a job for other reason under unfavorable circumstances

It is now obvious Applicant was terminated by her former employer because she undercharged a customer approximately $100.00; what is not obvious is when Company A made the decision to fire Applicant, nor is it obvious when Applicant was informed of this decision. There is no evidence of a termination notice or a termination date. Applicant has stated she did not know she had been fired until she appeared in court and was told to stay away from Company A for one year (Gov. Exh. 2).

Although Applicant was culpable of a serious breach of trust in undercharging a customer by the alleged and admitted amount, this was apparently her only infraction in six years of employment. She was a trained and trusted employee (at least until this incident) with six years experience in an industry with a high rate of employee turnover. There is no persuasive evidence Applicant knew at the time of her suspension, or on January 5, 1999 (the date she completed her SF 86) that all employees who undercharged customers were terminated, or that her isolated misconduct would result in her being fired from a job she had held for six years. The facts of this case allow for considerable speculation that the decision to terminate Applicant and file a complaint against her was made after January 5, 1999, when it was clear she was not interested in continuing her employment with Company A. It is possible, indeed likely, the decision to terminate Applicant may have been motivated by a company policy which allowed Company A to retain a portion of the employee's retirement contribution in the event of a termination for cause (Tr. 73-74).

Applicant's testimony concerning her understanding of the circumstances of her departure from Company A (at the time she completed the SF 86) was corroborated by Ms. X, Applicant's ex-mother-in-law, an employee of the same company. Ms. X had assisted her former daughter-in-law by filling out the form on the computer in Applicant's presence. Ms. X knew Applicant had been suspended by Company A, but did not know she was terminated when she helped her complete the form. She thought Applicant might continue to work part time for Company A (Tr. 81-82).

In the four years Applicant has worked for her current employer, she has earned an excellent reputation as a conscientious and dedicated employee. Four individuals in supervisory positions have written strong letters of support, each recommending Applicant be granted a security clearance. According to them, Applicant has worked her way up to increased levels of responsibility and is currently the primary care giver to large groups of nonhuman primates on "GLP and non-GLP studies." She has developed "an admirable level of trust with these animals and is very in tune to their different and unique temperaments and personalities" (Applicant Exh. B). Her fellow employees know when Applicant is assigned a task, 'the job will get done and get done right"(Applicant's Exh. A). During her first two and one-half years, she worked the weekend shift and did not miss a single weekend. She has been an excellent employee from the time she began working for her current employer. She is a reliable, hard working individual with high moral values (Applicant Exh. D).

The Adjudicative Guidelines of the Directive are not a set of inflexible rules of procedure. Instead, they are to be applied by Administrative Judges on a case by case basis with an eye toward making decisions with reasonable consistency which are clearly consistent with the national interest. In making these overall common sense determinations, Administrative Judges must consider, assess, and analyze the evidence of record, both favorable and unfavorable, not only with respect to the relevant Adjudicative Guidelines, but also in the context of the factors set forth in Section 6.3 of the Directive. In that vein, the Government not only has the burden of proving any controverted fact(s) alleged in the SOR, it must also demonstrate the facts proven have a nexus to Applicant's lack of security worthiness.

The following Adjudicative Guidelines are deemed applicable to the instant matter:

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

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:

Conditions that could mitigate security concerns include:

E2.A10.1.3.1. The criminal behavior was not recent;

E2.A10.1.3.2. The criminal behavior was an isolated incident;

E2.A10.1.3.6. There is clear evidence of successful rehabilation.

The Concern: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

Conditions that could raise a security concern and may be disqualifying also include:

E2.A5.1.2.2. 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 status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

Conditions that could mitigate security concerns include:

E2.A5.1.3.1. The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability,

The Government has the burden of proving any controverted facts alleged in the SOR. If the Government established its case, the burden of persuasion shift to Applicant to establish his security suitability through evidence which refutes, mitigates, or extenuates the disqualifying conduct and demonstrates it is clearly consistent with the national interest to grant or continue his security clearance.

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

Having considered the record evidence in accordance with appropriate legal precepts and factors, this Administrative Judge concludes the Government has established its case under Guideline J. In reaching my decision, I have considered the evidence as a whole, including each of the factors enumerated in Section E2.2 dealing with Adjudicative Process.

A security concern is raised by Applicant's conviction of "Unauthorized use of Property," a 4^th degree misdemeanor. ⁽⁴⁾ A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.

Applicant clearly demonstrated very poor judgment by undercharging a customer approximately $100.00 and in so doing, betraying the trust of her employer. While the charge against her was reduced to a 4^th degree misdemeanor, the reduced charge cannot conceal the seriousness of her misconduct--violating the trust reposed in her by her employer. It is especially serious and relevant to this proceeding because the trust an employer places in an employee who has access to, and is responsible for handling money, is similar to the trust the Government places in an employee who has access to, and is responsible for handling classified information. Both the private employer and the U.S. Government must be confident the individual whom they have placed in a position of trust--whether it is for safeguarding money or classified information--is honest and trustworthy.

Because of her unblemished record, Applicant was allowed to plead to a substantially reduced charge. Applicant had an unblemished record in 1998, and except for this incident, she continues to have an unblemished record. The 1998 overcharging event was an isolated incident that occurred four years ago. Since that event, she has done everything within her power to establish her reputation as a responsible, hardworking, law abiding citizen. She is a dedicated employee who has been promoted by her current employer. One of her supervisors has described her as "a very caring, trustworthy, honest and loyal person,...one of the hardest workers...very self motivated,...a perfect example of the American Dream." Another supervisor expressed "utmost confidence in her capabilities to respond correctly to any potential security or safety situation." Still another supervisor characterizes her as "a reliable hard worker, with excellent attendance and punctuality. If the undercharging event had occurred six months or one year ago, insufficient time would have passed for Applicant to demonstrate successful rehabilitation. But because, it happened four years ago, Applicant has had time to show the undercharging incident was an aberration that was not representative of her true nature and character. Guideline J is concluded for Applicant.

The record evidence does not support a finding Applicant deliberately falsified her SF 86 when she answered "no" to questions 20 and 40. She has credibly testified that she was not aware of the fact she had been fired by her former employer (Company A) at the time she completed the SF 86. Similarly, she has credibly testified she did not know a complaint and been filed against her and a judgment obtained when she completed the questionnaire. Guideline E is concluded for Applicant.

Formal findings as required by Section 3, paragraph 7, of Enclosure 1 of the Directive, are hereby rendered as follows:

Paragraph 1 (Guideline J) FOR THE APPLICANT

Subparagraph 1.a. For the Applicant

Subparagraph 1.b. For the Applicant

Paragraph 2. (Guideline E) FOR THE APPLICANT

Subparagraph 2.a. For the Applicant

Subparagraph 2.b. For the Applicant

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 security clearance.

1. Although Applicant testified she had been granted an interim clearance by her current employer (Tr. 64), which was recently suspended, there is no information in the file to corroborate or refute her testimony.

2. This judgement in the amount of $4,257.19 has been paid by Applicant.

3. Question 40 asks an applicant for security clearance: "In the last 7 years, have you been a party to any public record civil court actions not listed elsewhere on this form?"

4. The record does not establish that Applicant willfully falsified her SF 86 in violation of 18 U.S.C. 1001, see discussion under Guideline E.