DATE: August 23, 2004

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ROBERT J. TUIDER

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Esq., Deputy Chief Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant is seeking a clearance to perform her duties as a Facility Security Officer. Applicant raised personal conduct concerns when she provided false information on her security clearance application regarding past finances and later submitted a back-dated letter attempting to correct the false information. She has failed to mitigate personal conduct concerns raised. Clearance is denied.

STATEMENT OF THE CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On April 15, 2003, under the applicable Executive Order ⁽¹⁾ and Department of Defense Directive, ⁽²⁾ DOHA issued a Statement of Reasons (SOR) detailing the basis for its decision-Applicant failed to meet the personal conduct (Guideline E) personnel security guideline of the Directive. Applicant answered the SOR in writing on April 30, 2003 and elected to have a hearing before an administrative judge. The case was assigned to me on February 20, 2004. On March 16, 2004, I convened a hearing to consider whether it is clearly consistent with the national interest to grant Applicant's security clearance.

The government offered six exhibits, which were marked as Government Exhibits (GE) 1 through 6, and admitted without objection. The Applicant offered 12 exhibits, which were marked as Applicant Exhibits (AE) A through L, and admitted without objection.

DOHA received the transcript (Tr.) of the proceeding on April 27, 2004.

FINDINGS OF FACT

In her Answer, Appellant denied both SOR allegations made against her under personal conduct concerns. Her denials are incorporated into my findings. After a thorough review of the pleadings, transcript, and exhibits, I make the following essential findings of fact:

Applicant is a 45-year-old married woman, who has attended college. She is seeking access to classified information for her employment as an Industrial Security Specialist ⁽³⁾ for a defense contractor. Tr. 52. Her duties consist of processing security clearance applications for her employer. Tr. 52-55. Applicant is familiar with all aspects of the security clearance application process and counseled employees seeking security clearances Tr. 52-53.

On December 12, 2000, Applicant executed a security clearance application. She answered "No" in response to Question 38, Your Financial Delinquencies - 180 Days; In the last 7 years, have you been over 180 days delinquent on any debt(s)?" ⁽⁴⁾ GE 1.

On December 14, 2001, Applicant was interviewed by a Defense Security Service (DSS) Special Agent (SA) as part of the security-clearance process. Tr. 20, GE 2. During this interview, the DSS SA queried Applicant about a debt to a finance company for $100,000.00 that was listed as a "bad debt ⁽⁵⁾" on her credit report dated July 6, 2001. Tr. 22, GE 3. This "bad debt" arose as a result of Applicant and her husband executing a Deed in Lieu of Foreclosure in March 1993. Tr. 43.

Applicant informed the DSS SA "it was a traumatic period of her life, and she tried to put it out of her mind, and could not recall having these financial problems when she completed her SF-86." Tr. 24. Applicant further testified that she "forgot" to mention the Deed in Lieu of Foreclose on her security clearance application. Tr. 57.

Applicant indicated in her response to the SOR that she was counseled the Deed in Lieu of Foreclosure would not affect her credit rating and would not appear on her credit report. Applicant did acknowledge that this should have been listed on her security clearance application. Tr. 58. This debt would clearly have fallen within the scope of Question 38 and would have required a "Yes" answer. ⁽⁶⁾

During this interview, Applicant further informed DSS SA that she wrote a letter to DSS dated December 12, 2000, advising that she should have listed the Deed in Lieu of Foreclosure on her security clearance application and had corrected the previously submitted security clearance application described above by writing this letter. ⁽⁷⁾ Tr. 25.

Applicant testified she provided the December 12, 2000 letter to DSS, GE 4, to her Facility Security Officer (FSO) in December 2000 and was advised by her FSO to "hold-off" forwarding this letter because her security clearance application had already been submitted and to bring the matter up with DSS if and when she was interviewed. Tr. 60.

The December 14, 2000 letter was addressed to a DSS address that was not operational until May 2001. GE 5, Tr. 27, 29. ⁽⁸⁾ The DSS SA did not obtain a copy of this letter following the interview on December 14, 2001. Tr. 27-28.

On December 19, 2001, the DSS SA again interviewed Applicant. The Applicant provided a copy of the December 14, 2000 letter; however, this time the December 14, 2000 date was crossed out and September 10, 2001 was substituted. GE 4. This was the same letter Applicant provided to the DSS SA five days earlier. When queried about the date being crossed out, Applicant responded it "seemed odd," but could not provide a plausible explanation as to how it came to be crossed out. Tr. 29.

Applicant offered 11 letters of reference attesting to her good character. AE B through L.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

CONCLUSIONS

Guideline E- Personal Conduct

In the SOR, DOHA alleged Applicant falsified her security clearance application by deliberately omitting information pertaining to a past delinquent account (¶ 1.a.), and deliberately falsified material facts by stating to a Special Agent of the Defense Security Service that she corrected the falsification described in ¶ 1.a by sending a letter to the Defense Security Service (¶ 1.b).

Under Guideline E, 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. Directive ¶ E2.A5.l.l.

The Government established by substantial evidence that Applicant falsified her security clearance application when she failed to disclose a charged off account for approximately $100,000.00 and that she deliberately falsified material facts by stating to a Special Agent of the Defense Security Service that she corrected the falsification in her security clearance application. Proof Applicant omitted this information from her security clearance application shifted the burden to Applicant to explain the omissions sufficiently to negate a finding of knowing and deliberate falsification. See ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004).

Regardless of whether the Deed in Lieu of Foreclosure would appear on Applicant's credit report, she was under an obligation to report it, which she acknowledged. If one accepts Applicant's explanation that she forgot to list it and the approximate $100,000.00 liability that accompanied it, one would have reason to question her reliability and attention to detail. Given Applicant's obvious level of sophistication, her education, training, and position as an FSO, I do not find her explanation credible.

Further troublesome is the letter dated December 14, 2000 addressed to the Defense Security Service to an address that did not exist until May 2001. If actually sent to the address in question, it in all likelihood would have mitigated the false information Applicant provided in her security clearance application. There is no evidence that DSS received the letter or that Applicant gave the letter to her FSO as she testified. Rather, the submission of the letter is an attempt to mislead the investigator into believing that Applicant did something she did not do.

The government requires those entrusted with classified information to be straightforward, honest and diligent in the information they provide. Applicant's behavior not only raises questions about her ability to protect classified information, but also raises a question about her honesty in future cases regarding the integrity of the security-clearance process. No Mitigating Conditions apply. I find against Applicant.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline E: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

Subparagraph 1.b.: Against Applicant

DECISION

In light of all of 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. Clearance is denied.

Robert J. Tuider

Administrative Judge

1. Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified.

2. Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.

3. Appellant characterized her job title as an Industrial Security Specialist in her testimony. Her Facility Security Officer by letter dated August 23, 2001 indicated Applicant "will be the Facility Security Officer" for her employer. Response to SOR. Additionally, Applicant's Facility Security Officer submitted a character reference dated April 1, 2004, indicating Applicant would be the Facility Security Officer upon final adjudication of her clearance. AE B.

4. Applicant referred to a Question 27 on her security clearance application in her Response to the SOR. Applicant's response to Questions 27 did not come under scrutiny nor is any aspect of it alleged in the SOR. GE 1 is a copy of Applicant's security clearance application.

5. This bad debt is listed twice as a "personal joint mortgage" and "charged off account real estate mortgage" in Applicant's credit report dated July 6, 2001. Applicant informed the DSS SA the debt was incorrectly listed twice. Tr. 22. It is clear from reviewing the credit report that the debt in question is incorrectly listed twice. Accordingly, I considered only one listing of $100,000.00 to be valid. GE 6.

6. Applicant's credit report shows last activity for the debt as "11/1996" and "8/1995." GE 3. Regardless of what entry one chooses to accept, 1995 and 1996 is within the seven year time period contemplated by Question 38.

7. This letter. GE 4, presumably would have been construed as having taken corrective action and mitigated the incorrect information provided in response to Question 38. See E2.A5.1.3.3 of the Directive.

8. The effective DSS address in December 2000 was in the Midwest whereas the DSS address in May 2001 had relocated to a mid-Atlantic state. Tr. 27. This creates doubt as to when the letter was actually written.