DATE: November 13, 2002
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
ELIZABETH M. MATCHINSKI
APPEARANCES
FOR GOVERNMENT
Kathryn D. MacKinnon, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant pleaded guilty in January 1975 to illegal possession of cocaine, for which she was sentenced to three to six years in a state correctional facility, suspended. In the twenty-seven years since her conviction, Applicant has done nothing to violate the trust and confidence placed in her by the Government or her employer. Through hard work and dedication, she has progressed through the ranks from an hourly wage welder to a salaried area superintendent responsible for fifteen to eighteen separate trades. Despite her considerable success in her chosen career, Applicant is ineligible for a security clearance pursuant to 10 U.S.C. §986 because she was sentenced in 1975 to imprisonment for a term of more than one year. Clearance is denied with a recommendation this case be considered for a waiver of 10 U.S.C. §986.
STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended by Executive Orders 10909, 11328 and 12829) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 (as amended by Change 4 and the implementation of Title 10, Section 986 of the United States Code), issued a Statement of Reasons (SOR), dated April 10, 2002, to the Applicant. The SOR 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. DOHA recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied or revoked. The SOR was based on criminal conduct (guideline J) due to Applicant's conviction of illegal possession of cocaine, a felony offense committed in October 1974. That offense, for which Applicant was sentenced to three to six years (suspended) in a state correctional facility, was alleged to disqualify her from having a security clearance granted or renewed pursuant to Title 10, Section 986 of the United States Code (hereafter 10 U.S.C. §986). (1)
Applicant filed a response dated May 3, 2002, to the SOR in which she requested a hearing before a DOHA Administrative Judge. The case was assigned to me on July 9, 2002, and pursuant to formal notice dated July 12, 2002, a hearing was scheduled for August 2, 2002. By facsimile on July 28, 2002, Applicant requested a continuance of her hearing to allow her more time to make her case for a waiver of the statutory prohibition against grant or renewal of clearance pursuant to 10 U.S.C. §986. The Government having no objection, a brief continuance was granted to August 23, 2002. On July 30, 2002, an amended notice of hearing was issued, rescheduling the hearing as ordered.
At the hearing held on August 23, 2002, six Government exhibits and six Applicant exhibits were admitted into the record. Testimony was taken from Applicant, from a constituent service representative on staff of Applicant's United States congressman, and from the security director at Applicant's place of employment. At the close of the record evidence, pursuant to the Government's motion, SOR subparagraph 1.a. was amended to identify the arresting agency rather than the jurisdiction in which Applicant was arrested in October 1974. With the receipt on September 5, 2002, of the transcript of the proceedings, this case is ripe for a decision.
After a thorough review of the evidence, and on due consideration of the same, I render the following findings of fact:
Applicant is a 53-year-old area superintendent for a defense contractor (company A), where she is in charge of an entire section of a nuclear submarine. Initially employed as a welder in April 1974, she was granted a company confidential security clearance in 1975. Due to her hard work and dedication, she was promoted to positions of increasing responsibility over the years. In October 1990, the Department of Defense granted Applicant a confidential clearance, which she needed for her duties as a general foreman. She continued to access classified information without adverse incident, and merited promotions in May 1992 to area manager, and in January 1998 to area superintendent. In February 2001, her clearance was upgraded to secret. Applicant's application for continued access is endorsed by upper management at company A, including the president of the company and the facility's chief security officer, and by her United States congressman, who has an active interest in the impact of 10 U.S.C. §986 on his constituents.
As a teenager and young adult, Applicant chose to associate with those who had little respect for authority or law. She began smoking marijuana at age seventeen on an irregular basis. In July 1968, she was arrested for shoplifting after she was caught in possession of an item which a companion had stolen from a store. Knowing a stolen item was in her bag, Applicant aided her companion in the theft. Applicant was placed on probation for the offense. For about a year during the 1968/69 time frame, Applicant abused marijuana three to four times per week with others and she tried heroin once. While her use of marijuana declined to infrequent thereafter, it continued to sometime in 1974.
Between 1972 and early 1974, Applicant snorted cocaine on seven to eight occasions when socializing with drug-using friends. In late April 1974, Applicant commenced work as a welder for her current employer. Circa 1974, a friend informed Applicant he was going to Colombia and would mail her cocaine. Thinking he was not serious, Applicant responded "okay." In early October 1974, she received a package in the mail from Colombia which contained three to five grams of cocaine. That night, she was arrested at her home by the state police, and charged with possession of cocaine with intent to sell, a felony under pertinent state law. (2) The following month, Applicant entered a not guilty plea to the charge. In mid-January 1975, Applicant pleaded guilty to a substituted felony charge of illegal possession of cocaine, as she had cocaine in her possession when she was arrested. In late January 1975, she was sentenced to three to six years in a maximum security correctional facility, suspended, and placed on three years probation with conditions, including complete disassociation from drug users, abstention from illegal drugs, and voluntary submission to any drug testing ordered by her probation officer. Applicant terminated all relationships with known drug users and completed her probationary term without incident.
Applicant suffered no adverse consequences on the job because of this arrest. In conjunction with an adverse information report filed by her employer following the incident, Applicant executed a Personnel Security Questionnaire (DD Form 48) on May 9, 1975. Applicant disclosed her possession of cocaine conviction and the shoplifting charge in response to question 22 ["Have you ever been arrested, charged, or held by any law enforcement authorities for any violation of any law, regulation or ordinance? Include all courts-martial. Do not include anything that happened before your 16th birthday. Do not include traffic violations for which the only penalty was imposed was a fine of $25.00 or less. All other charges must be included even if they were dismissed."].
The Defense Security Service (then known as Defense Investigative Service) conducted an investigation into Applicant's background, which included a subject interview of July 25, 1975. During that interview, Applicant described her actions which led to her arrests in 1968 for shoplifting and in October 1974 for cocaine possession. With regard to the cocaine incident, Applicant did not deny having received some cocaine in a letter sent from Colombia by an "acquaintance." She had not asked this person to send her the cocaine, and was arrested before she had the opportunity to consider what she might do with it. On probation for three years after pleading guilty to a reduced charge of illegal possession of cocaine, Applicant related she was in regular contact with her probation officer and complying with the conditions of her probation. Applicant indicated she had stopped using any illegal drug about six months before her arrest for cocaine possession, as she "had lost interest in using drugs by that time." Applicant admitted past association with individuals who used illegal drugs, but denied any contact with them since early 1974. Applicant was allowed to continue in her job with a company confidential clearance.
In mid-September 1975, Applicant was arrested along with several other employees for trespassing, third degree, during a strike at her place of employment when she crossed a line beyond which striking union employees were not allowed. The charge was dismissed with no sanction imposed.
Applicant returned to work after the strike dedicated to her job. In April 1979, Applicant was regarded by her employer (and apparently the Secret Service) as sufficiently trustworthy to assist the then First Lady of the United States when the First Lady came to the company to weld her initials into the keel of a nuclear submarine. (3) In July 1979, Applicant was promoted from welder (an hourly position) into the salaried ranks as a foreman at an annual salary of $20,400.00. As a foreman, she supervised fifteen to twenty welders. In 1985, Applicant received an award for a suggestion which improved the productivity and profitability of the company. With a promotion in July 1987 to general foreman at an annual salary of $39,200.00, Applicant became responsible for the productivity of four or five groups of welders (approximately 80 to 100 people). In addition to annual increases in her salary, Applicant was given a $1,900.00 bonus in late June 1988. That year, she received her second suggestion award from her employer. In 1989, another suggested improvement was chosen as the suggestion of the year. In October 1990, Applicant was granted a Department of Defense confidential clearance for her duties as general foreman.
In late May 1992, Applicant was promoted to the position of area manager, responsible for planning the work for, and ensuring the productivity of, hourly workers and their respective foremen in numerous trades-welders, grinders, shipfitters, pipe welders, sheet metal workers. Applicant performed well in the position of area manager, and she received several bonus awards in addition to annual salary increases. (4) After five years as an area manager, Applicant's annual salary had risen to $66,000.00 as of mid-July 1997.
In early January 1998, Applicant was promoted to her present position of area superintendent, at a base salary of $70,000.00. As an area superintendent, Applicant assumed responsibility for the budget and personnel management for an entire section of a nuclear submarine. With even more trades reporting to her than previously, Applicant has supervisory authority over between 80 and 150 hourly union trades workers and their respective foremen. In addition to the annual merit increases, Applicant earned monetary bonuses totaling $3,000.00 in 1998 and $1,200.00 in June 1999. As of June 30, 2002, her annual salary had reached $82,500.00.
Circa 2000, the level of sensitivity of the work at defense contractor A had increased to where the company sought clearance upgrades to secret for some 3,000 to 4,000 employees of the company. In February 2001, Applicant's security clearance was upgraded to secret. In March 2001, a union official at company A contacted his United States congressman about a backlog of security investigations for the defense contractor's employees. The congressman took an active interest in the security clearance process, including the potential negative implications of 10 U.S.C. §986 for his constituents. A staff member from the congressman's office informed company A's security director that the congressman was seeking an appropriate case to test the waiver process provided for under 10 U.S.C. §986.
On or before March 13, 2002, Applicant completed a security clearance application (SF 86), EPSQ version. (5) In response to both question 21 concerning any felony offenses, and question 24 inquiring into any alcohol/drug offenses, Applicant listed her arrest in October 1974 for possession of cocaine, indicating she had been placed on two years probation. (6)
On April 10, 2002, DOHA issued an SOR to Applicant, alleging her ineligibility for a Department of Defense security clearance under 10 U.S.C. §986 because of her arrest in 1974 and subsequent conviction of a charge of illegal possession of cocaine, for which she had been sentenced to a term of imprisonment of three to six years, suspended.
Concerned about the possible repercussions to her career if she should lose her security clearance, Applicant contacted company A's director of security. Recalling the United States congressman's interest in a "test case," the security official in July 2002 informed the United States congressman's office of Applicant's case. Company A's director of security detailed Applicant's career progression through company A, for which Applicant had earned the respect of company management and union alike. After meeting with Applicant and being apprized of her background, the United States congressman endorses Applicant's continued access to classified information. (7)
A conscientious and reliable employee, Applicant earned perfect attendance awards from defense contractor A for 1995, 1996, 1997, 1998, 1999 and 2001. Due to her work performance and reputation for personal integrity, Applicant is held in high regard by upper management at company A, from the president on down. The president of company A, who has known Applicant for almost her entire career at the company, has followed her progression through the management ranks. He believes it would be unreasonable to revoke her security clearance on the basis of conduct which occurred more than 27 years ago. The company's director of operations has always found Applicant to be hardworking, industrious and honest. In his opinion, Applicant deserves to maintain her clearance. The director of security, knowledgeable of the conduct in 1974 which resulted in a sentence which on its face invokes the provisions of 10 U.S.C. §986, is convinced Applicant learned some very important lessons from that experience which made her more committed to achieving her personal and professional goals. Responsible for ensuring full compliance with the National Industrial Security Program Operating Manual (NISPOM), this security professional recommends Applicant retain her access to classified information.
POLICIES
The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, favorable and unfavorable, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 to the Directive sets forth adjudicative guidelines which must be carefully considered according to the pertinent criterion in making the overall common sense determination required. Each adjudicative decision must also include an assessment of the nature, extent, and seriousness of the conduct and surrounding circumstances; the frequency and recency of the conduct; the individual's age and maturity at the time of the conduct; the motivation of the individual applicant and extent to which the conduct was negligent, willful, voluntary or undertaken with knowledge of the consequences involved; the absence or presence of rehabilitation and other pertinent behavioral changes; the potential for coercion, exploitation and duress; and the probability that the circumstances or conduct will continue or recur in the future. See Directive 5220.6, Section 6.3 and Enclosure 2, Section E2.2. Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility or emotionally unstable behavior. See Directive 5220.6, Enclosure 2, Section E2.2.4.
Considering the evidence as a whole, I find the following adjudicative guidelines to be most pertinent to this case: (8)
GUIDELINE J
Criminal Conduct
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:
a. Allegations or admissions of criminal conduct, regardless of whether the person was formally charged.
b. A single, serious crime. . .
c. Conviction in a Federal or State court, including a court-marital of a crime and sentenced to imprisonment for a term exceeding one year (9)
Conditions that could mitigate security concerns include:
a. The criminal behavior was not recent
b. The crime was an isolated incident
d. The person did not voluntarily commit the act and/or the factors leading to the violation are not likely to recur
f. There is clear evidence of successful rehabilitation
g. Potentially disqualifying conditions c. and d., above, may not be mitigated unless, where meritorious circumstances exist, the Secretary of Defense or the Secretary of the Military Department concerned has granted a waiver.
* * *
Under the provisions of Executive Order 10865 as amended and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, the Administrative Judge can only draw those inferences and conclusions which have a reasonable and logical basis in the evidence of record. In addition, as the trier of fact, the Administrative Judge must make critical judgments as to the credibility of witnesses. Decisions under the Directive include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.
Initially, the Government has the burden of proving any controverted fact(s) alleged in the Statement of Reasons. If the Government meets its burden and establishes conduct cognizable as a security concern under the Directive, the burden of persuasion then shifts to the applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of criterion conduct, it is clearly consistent with the national interest to grant or continue her security clearance.
A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where the 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 she 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 that security clearance determinations should err, if they must, on the side of denials." Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security. See Enclosure 2 to the Directive, Section E2.2.2.
Having considered the evidence of record in light of the appropriate legal precepts and factors, I conclude the following with respect to guideline J:
Applicant was arrested in October 1974 for possession of cocaine with intent to sell, after she received in the mail from Colombia a package containing from three to five grams of cocaine. In court in January 1975, she pleaded guilty to a substituted reduced charge of felony possession of cocaine and was sentenced to three to six years in a state correctional facility, suspended, and placed on three years supervised probation with conditions. Notwithstanding the passage of more than 27 years since the crime, disqualifying conditions a. (allegations or admissions of criminal conduct), b. (a single serious crime) and c. (conviction in a state court and sentenced to a term of imprisonment exceeding one year) must be considered in evaluating Applicant's current security suitability.
Several of the Directive's mitigating conditions (MC) apply to Applicant's criminal conduct: a. (the criminal behavior was not recent); b. (the crime was an isolated incident); (10) d. (the factors leading to the violation are not likely to recur); and f. (there is clear evidence of successful rehabilitation). Applicant's involvement with illicit drugs was confined to her teens and early twenties when she was actively socializing with illegal drug users. Although Applicant was charged in October 1974 with felony possession of cocaine with intent to sell, there is no evidence she had ever engaged in the sale or distribution of controlled dangerous substances. Applicant testified credibly she had not expected her friend to make good on an offer to send her some cocaine from Colombia, and given time, she probably would have given the drug to other friends. Since 1975, Applicant has maintained a drug-free lifestyle, committed to her personal and professional goals. Through hard work and dedication, Applicant has moved up the management ranks to achieve a position of considerable responsibility at company A. After being fully informed by Applicant about her criminal record, the Department of Defense granted Applicant a confidential security clearance in 1990 and a secret clearance in 2001. Applicant has done nothing to violate the trust placed in her. Her successful rehabilitation is amply evidenced through the trust and confidence placed in her by the president of company A, the director of operations, the ship manager and the director of security. There is no indication of recent or recurring questionable judgment or irresponsibility on Applicant's part which would give rise to a present security risk.
Yet, criminal conduct punished by imposition of a prison term in excess of one year is regarded as sufficiently serious to where it cannot be mitigated unless meritorious circumstances exist (See MC g.). Pursuant to 10 U.S.C. §986, the Department of Defense is prohibited from granting or renewing access to classified information to a defense contractor employee who has been convicted in a Federal or State court and sentenced to imprisonment for a term exceeding one year. Although Applicant served no jail time, she was sentenced in January 1975 to a term (suspended) of three to six years in a state correctional facility. By virtue of this sentence, Applicant falls within the provisions of 10 U.S.C. §986, as amended, which has been implemented within the Department of Defense by a June 7, 2001 memorandum from the Deputy Secretary of Defense titled Implementation of Restrictions on the Granting or Renewal of Security Clearances as Mandated by the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001. Hence, Applicant's request for continued access must be denied and an adverse finding returned as to subparagraph 1.b. of the SOR. This statutory prohibition may be waived in meritorious circumstances as determined by the Secretary of Defense. I recommend further consideration of this case for a waiver of 10 U.S.C. §986.
Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive are hereby rendered as follows:
Paragraph 1. Guideline J: AGAINST THE APPLICANT
Subparagraph 1.a.: For the Applicant
Subparagraph 1.b.: 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. I recommend further consideration of this case for a waiver of 10 U.S.C. §986.
1. With the issuance of the SOR, Applicant was given a copy of the Federal statute, which states in pertinent part:
§986. Security clearances: limitations
(a) Prohibition.--After the date of the enactment of this section, the Department of Defense may not grant or renew a security clearance for a person to whom this section applies who is described in subsection (c).
(b) Covered Persons.--This section applies to the following persons:
(1) An officer or employee of the Department of Defense
(2) A member of the Army, Navy, Air Force, or Marine Corps who is on active duty or is in an active status.
(3) An officer or employee of a contractor of the Department of Defense.
(c) Persons Disqualified From Being Granted Security Clearances.--A person is described in this subsection if any of the following applies to that person;
(1) The person has been convicted in any court of the United States of a crime and sentenced to imprisonment for a term exceeding one year. . .
(d) Waiver Authority--In a meritorious case, the Secretary of Defense or the Secretary of the military department concerned may authorize an exception to the prohibition in subsection (a) for a person described in paragraph (1) or (4) of subsection (c). The authority under the preceding sentence may not be delegated.
2. Applicant has consistently denied any intent to sell the cocaine. When asked what she would have done with the drug, she testified she would probably have given it to her friends, as she had "almost totally stopped" her drug involvement by that time. (Transcript p. 85).
3. Applicant testified, unchallenged by the Government, the Secret Service checked into her background before allowing her in the company of the First Lady. (Transcript p. 46).
4. As reflected in Applicant exhibit A, Applicant was awarded several bonuses for her contributions as an area manager: $1,500 in July 1993, $1,600 in July 1994, $2,000 in July 1995, $3,000 in July 1995, $1,700 in July 1996, $1,000 in December 1996, and $3,000 in July 1997.
5. The director of security testified the recent investigation into Applicant's background was likely a periodic reinvestigation for her confidential clearance. At that time, the company requested her clearance be upgraded. (Transcript pp. 121-22). Applicant's clearance was upgraded to secret before she completed the SF 86, and the SOR was issued before she signed the form on May 2,2002 (see Transcript p. 43).
6. As why she had indicated a probationary term of only two years when she had in fact been placed on three years probation, Applicant testified credibly to just having remembered it wrong. (Transcript p. 81).
7. In a letter dated August 23, 2002, the United States congressman expressed his hope the "Smith Amendment" (10 U.S.C. 986) not be allowed to destroy Applicant's career. (See Ex. F).
8. The adjudicative factors considered most pertinent are identified as set forth in guideline J following the implementation of 10 U.S.C. §986.
9. Under the provisions of 10 U.S.C. §986 (P.L. 106-398) a person who has been convicted in a Federal or State court, including courts marital, and sentenced to imprisonment for a term exceeding one year, may not be granted or have renewed access to classified information. In a meritorious case, the Secretary of Defense or the Secretary of the Military Department concerned, may authorize a waiver of this prohibition.
10. Although Applicant was placed on probation for shoplifting in 1968, the Government apparently did not consider it of security significance since it was not alleged.