DATE: August 7, 2003
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
ROGER E. WILLMETH
APPEARANCES
FOR GOVERNMENT
Robert J. Tuider, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
The Government failed to establish that Applicant, a 48-year-old system administrator employed by a defense contractor, engaged in alcohol consumption at luncheons during the workday and at bars that constituted a disqualifying condition under Guideline G. However, the Government did establish disqualifying conditions under Guideline E with evidence that he had been arrested for telephone harassment and had received a letter of reprimand from his employer for using abusive and derogatory language to other employees. Moreover, the evidence of record establishes that Applicant deliberately failed to disclose this information on his security clearance application and during an interview with a Defense Security Service special agent. Clearance is denied.
STATEMENT OF THE CASE
On October 15, 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 Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement Reasons (SOR) to Applicant. The SOR states that DOHA was unable to find that it is clearly consistent with the national interest to grant him access to any classified information and recommends that his case be submitted to an Administrative Judge. On November 15, 2002, Applicant executed a response to the SOR and requested a hearing. This case was assigned to me on January 7, 2003. A notice of hearing was issued on January 14, 2003, and the hearing was held on January 24, 2003. During the hearing, three Government (Govt) exhibits and the testimony of one Government witness and Applicant were received. The transcript (Tr.) was received on February 3, 2003.
Having thoroughly considered the evidence in the record, including Applicant's admission to the allegation in the SOR ¶ 2.a, I make the following findings of fact:
Applicant is a 48-year-old system administrator for a defense contractor and is seeking a security clearance.
On June 30, 1995, Applicant received a written reprimand for unprofessional conduct for using abusive and derogatory language, including profanity in telephonic communications and e-mail messages. He was suspended without pay for one day and his job responsibilities were changed to eliminate his contact with the employees who had complained. (1)
Applicant was arrested for telephone harassment on July 20, 1997. The charge was nolle prossed and Applicant was ordered not to have contact for one year with the woman he had telephoned. (2)
On November 7, 2000, Applicant completed a security clearance application. (3) In response to question 26 ("In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25?"), he answered, "no," omitting his 1997 arrest for telephone harassment. (4)
Applicant has, on occasion, gone to bars and consumed five mixed drinks, consisting of rum and coke, before driving home. (5)
On December 28, 2000, Applicant was interviewed with regard to his security clearance application by a special agent of the Defense Security Service (DSS). In that interview, Applicant deliberately failed to disclose: his arrest for telephone harassment; his reprimand from his employer; and, on occasion, his consumption of alcohol before driving. On March 23, 2001, Applicant told the special agent that he left the information off his security clearance application and did not reveal it in his earlier interview because was concerned that it would affect his ability to receive a clearance. (6)
POLICIES
Department Counsel is responsible for presenting witnesses and other evidence to establish facts alleged in the SOR that have been controverted. Directive E3.1.14. The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision. Directive E3.1.15.
Eligibility for access to classified information is predicated upon an individual meeting adjudicative guidelines discussed in Enclosure 2 of the Directive. An evaluation of whether an applicant meets these guidelines includes the consideration 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 decision. This assessment should include the following factors: (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. Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of national security. Directive E2.2.2.
Enclosure 2 provides conditions for each guideline that could raise a concern and may be disqualifying , as well as further conditions that could mitigate a concern and support granting a clearance. The following guidelines are applicable to this case.
Guideline G: Alcohol Consumption
The concern under Guideline G is that excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness.
Conditions that could raise a security concern and may be disqualifying include:
Alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, or other criminal incidents related to alcohol use (Disqualifying Condition 1);
Alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job (Disqualifying Condition 2).
Guideline E: Personal Conduct
The concern under Guideline E is 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 include:
Reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances (Disqualifying Condition 1).
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 (Disqualifying Condition 2).
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 (Disqualifying Condition 3).
None of the conditions under Guideline E that could mitigate security concerns are applicable in this case.
CONCLUSIONS
Guideline G: Alcohol Consumption
The Government alleges that Applicant consumed mixed drinks at luncheons during the workday over a four and a half year period (SOR ¶ 1.a). However, it fails to allege, let alone establish with evidence, the quantity of alcohol he consumed, as well as how often he engaged in such consumption.
The DSS special agent obtained a statement from Applicant during his second interview, which is damaging to Applicant as far as most of the SOR allegations are concerned. (7) In the statement, Applicant only admits to the use of alcohol during the workday at functions such as farewell luncheons and he does not state the quantity of alcohol that he consumed. Although the special agent testified that Applicant told him that he would consume four to five mixed drinks at luncheons, he failed to record that in Applicant's statement. Moreover, it is the same quantity that he did record in the statement with regard to Applicant's consumption of alcohol at bars. This suggests that in his testimony, the special agent confused Applicant's admitted use of alcohol in bars with his consumption of alcohol at luncheons. Although Applicant's veracity is admittedly subject to question, as explained under Guideline E, below, he did not contribute to the Government's case by testifying that he only drank one or two beers at luncheons when it was acceptable to drink at such functions. (8)
Not only has the Government has failed to allege facts under SOR ¶ 1.a that would establish a disqualifying condition under Guideline G, but it has failed to produce evidence that support such a conclusion. I must find accordingly.
SOR ¶ 1.b reflects Applicant's statement to the special agent, "when I go to bars, I would typically drink approximately five rum and cokes and drive home." (9) Although this evidence is intended to suggest that he drove while under the influence of alcohol, it is not sufficient, in and of itself, to establish that disqualifying condition.
What SOR ¶ 1.b fails to address and what the Government failed to produce evidence of is the time frame during which Applicant would consume the drinks, as well as what food or other beverages, such as coffee, that he might consume as well. Again, although there is the issue of Applicant's credibility, as discussed below, the only evidence provided on the additional factors is that of Applicant. In both his response to the SOR and his testimony, Applicant stated that he would go to sports bars to watch football games and that he would have a meal and consume the drinks over several hours.
Once again, the Government has not only failed to allege facts under SOR ¶ 1.b that are sufficient to establish a disqualifying condition under Guideline G, but it has failed to produce evidence that support such a conclusion. Again, I find accordingly.
Guideline E: Personal Conduct
Unlike the Government's case under Guideline G, the Government's evidence under Guideline E provides evidence of several incidents that establish disqualifying conditions.
Applicant's arrest for telephone harassment is evidence of his questionable judgment (SOR ¶ 2.a). He claims that began telephoning the woman who took $80.00-$100.00 from him and did not provide a massage as advertised. (10) However, he did not complain to authorities but began harassing her to the point that she complained to them and he was arrested. Applicant admits that "this was a bad incident that occurred" and that he "should have handled it better." The incident establishes conduct on the part of Applicant that reflects on his fitness for a security clearance.
The letter of reprimand that Applicant received from his employer for using abusive and derogatory language to other employees (SOR ¶ 2.b) establishes Disqualifying Condition 1. Applicant does not dispute receiving the letter of reprimand but he denies the underlying charges. (11) His account of the underlying facts is enlightening. Apparently, a sexual harassment complaint was filed because of a sexually explicit joke that he told. In addition, he admitted to sending an e-mail to a supervisor stating, "can you get off your ass and get this done for me." (12)
Although Applicant said in his earlier statement that he should not have made the joke, his response to the SOR expresses no regret but he refers to, "personality clashes" and "a female employee was insecure." In his testimony, he also complained that he was told that the letter would not remain in his personnel file. Clearly, Applicant has not mitigated his earlier actions that are the basis for the letter of reprimand.
The most serious allegations against Applicant are found in SOR ¶2.c and SOR ¶ 2.d. In response to question 26 on his security clearance application, he failed to disclose his arrest for telephone harassment. When interviewed by the DSS special agent, he failed to reveal the arrest or the letter of reprimand. Moreover, he admitted to the special agent that he "purposely left this information off of my security form and did not discuss it on my initial Subject Interview because I feared it would impact my ability to attain a security clearance." Applicant's statement establishes that his actions were deliberate. Clearly, the evidence of record establishes Disqualifying Condition 2 with regard to SOR ¶ 2.c and Disqualifying Condition 3 with regard to SOR ¶ 2.d.
Applicant fails to mitigate either of these disqualifying conditions. He now denies his earlier admission, claiming that he simply forgot to list his arrest and that the special agent "misinterpreted" information that he provided. In accordance with section E3.1.15 of the Directive, Applicant has the burden to rebut, explain, extenuate, or mitigate the facts to which he previously admitted. His latest denials fail to do so and only serve to further impeach his credibility.
FORMAL FINDINGS
Formal findings, as required by section E3.1.25 of Enclosure 3 of the Directive, are as follows:
Paragraph 1. Guideline G: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Paragraph 2. Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: Against Applicant
Subparagraph 2.d: Against Applicant
DECISION
In light of the evidence of record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.
Signed
Roger E. Willmeth
Administrative Judge
1. Govt Ex 3.
2. Tr 29-31; Govt Ex 2 at 3.
3. Govt Ex 1b.
4. Tr 16-17; Govt Ex 1 at 5; Govt Ex 2 at 3.
5. Govt Ex 2 at 2.
6. Tr 15-18; Govt Ex 2.
7. Govt Ex 2.
8. Tr 26.
9. Govt Ex 2 at 2.
10. Tr 29-31.
11. Tr 34.
12. Govt Ex 2 at 1.