DATE: November 16, 2004

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

PHILIP S. HOWE

APPEARANCES

FOR GOVERNMENT

Francisco J. Mendez, Esq., Department Counsel

FOR APPLICANT

William L. Enyart, Esq.

SYNOPSIS

Applicant is 28 years old. He joined the Air Force in 1995 at his father's insistence, but only served 28 days. He was discharged with an entry level separation after he cut his left wrist and disclosed he had suicidal thoughts after he joined the Air Force. Applicant did not disclose his entry level separation and his mental health evaluation on his security clearance application. Applicant did not mitigate the personal conduct security concerns. Clearance is denied.

STATEMENT OF THE CASE

On July 17, 2003, the Defense Office of Hearings and Appeals (DOHA), under 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 Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant. The SOR detailed reasons under Guideline E (Personal Conduct) 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 Applicant, and recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied, or revoked.

In a signed and sworn statement dated August 12, 2003, Applicant responded to the SOR allegations. He requested a hearing. This case was assigned to me on February 3, 2004. A Notice of Hearing was issued on June 1, 2004 setting the hearing date for June 18, 2004. The Government presented eight exhibits, three of which were admitted into evidence. Applicant appeared and testified, as did three witnesses for him, and he offered 16 exhibits, all of which were admitted into evidence. I received the transcript (Tr.) on July 7, 2004.

FINDINGS OF FACT

Applicant admitted the allegations in the SOR, except for subparagraph 1.d., and the second parts of subparagraphs 1.a. and 1.b., which he denies. Those admissions are incorporated herein as findings of fact. After a complete review of the evidence in that hearing record , I make additional findings of fact:

Applicant is 28 years old. He works for a defense contractor as a web designer and takes care of the inventory control for the company's computer equipment. He is unmarried and lives at home with his parents. Applicant is an only child who is shy and introverted. Applicant speaks softly, almost mumbling, and may have a speech impediment, all of which contribute to his withdrawn and shy nature. He spends his off-duty time playing computer games and similar activities. Applicant also works as a sales associate at a computer game store. Applicant did not have good grades in high school that made him want to go to college or his father want to pay for that education. Applicant got his current defense contractor job through his father, who worked for the same company. Applicant makes about $32,000 annually. Applicant has no criminal record in the civilian community. (Tr. 51, 52, 56, 63, 65, 67 to 70; Exhibit 1; Exhibits A, B, C, D, N, O and P)

Applicant's supervisor and co-worker testified Applicant is conscientious and hard-working, a team player, knowledgeable about his computer tasks, and honest. Applicant submitted seven work evaluations all of which show in some regard he meets or exceeds the work expectations of his employer. Applicant submitted a current resume showing his computer abilities and experience. (Tr. 21 to 46; Exhibits G and H)

Applicant's father thought Applicant should join the Air Force after high school in 1995. Applicant was not going to college, and the Air Force would help mature him, according to Applicant's father, who also testified at the hearing. Applicant's father retired from the Air Force as a master sergeant. Applicant enlisted and entered basic training on or about September 5, 1995. Applicant was away from home for the first time, and could not cope with the stressful environment of living in a barracks, being constantly directed by non-commissioned training officers to perform military duties, and did not make friends well with his fellow enlistees. Applicant dealt with the situation by withdrawing into himself, and cut his left wrist with a dull scissors. After that event, he disclosed on a questionnaire that he was thinking about suicide and harming himself. On September 12, 1995, Air Force mental health personnel evaluated him for separation. They found him to have an adjustment disorder with depressed mood. The Air Force psychologist found Applicant had visions of killing himself , but no thoughts of suicide prior to basic training. Applicant denied actively wanting to kill himself or intending to do so. Applicant characterized his actions as a "cry for help", not an actual suicide attempt because he only cut his left wrist's skin not his vein. Applicant denied cutting himself to get out of the Air Force. Applicant's wrist cutting did result in him being discharged from the Air Force. No mental health disorder was found, but Applicant was found to be unable to perform to training standards due to his attitude toward training. Applicant was in an Air Force mental health ward for about two weeks. Upon release from there, Applicant was notified on September 20, 1995, by his commander that he was been separated with an entry level separation because of a personality disorder. Applicant was discharged on September 27, 1995, from the Air Force. Applicant signed the DD 214, "Certificate of Release or Discharge from Active Duty" on or about September 27, 1995. Applicant had 28 days of active duty. (Tr. 50, 60 to 65, 70 to 109; Exhibits 2 to 8)

Applicant cannot find a copy of his DD 214, does not recall signing the DD 214, remembers someone telling him in September 1995 that he was to be discharged from the Air Force with an honorable discharge for medical reasons, does not remember any mental health evaluations other than a five minute conversation with someone he thought was a psychiatrist when he was in the Air Force hospital from September 12 to 20, 1995. Applicant had a follow-up meeting after his discharge with a psychologist about a month later and that was the last contact with mental health personnel he has ever had, except for the interview time with the expert he hired for the hearing. Applicant thought he had an honorable discharge. Applicant put the events out of his mind after he got home with his parents. An honorable discharge is different from an entry level separation. (Tr. 72 to 106; Exhibits 3 and 4)

Applicant's expert clinical psychologist testified that Applicant was slightly depressed, and had avoidance personality traits and a speech impediment. The expert also distinguished a personality disorder from an adjustment disorder. (Tr. 110 to 126; Exhibits E, J, K, L, and M)

Applicant completed his security clearance application (SCA) on January 18, 2001. On that SCA he disclosed his short military service, but answered "no" to Question 17 ("Have you ever received other than an honorable discharge from the military") and Question 19 (In the past 7 years have you consulted a mental health professional or consulted with another health care provider about a mental health related condition?). Applicant thought he was getting an honorable discharge, and he claims he forgot about his contact with mental health professionals in 1995 due to the passage of time. (Tr. 72 to 80, 94 to 106; Exhibits 1, 2, and 3)

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 judgement, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing he 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 predicted upon the applicant meeting the security guidelines contained in the Directive.

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, 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 that must be carefully considered according to the pertinent Guideline in making the overall common sense determination required.

Each adjudicative decision must also include an assessment of: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, and the extent of knowledgeable participation; (3) how recent and frequent the behavior was; (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 (See Directive, Section E2.2.1. of Enclosure 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 condition 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 other behavior specified in the Guidelines.

Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case:

Guideline E - Personal Conduct:

E2.A5.1.1. 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.:

E2.A5.1.2. Conditions that could raise a security concern and may be disqualifying also include:

E2.A5.1.2.2. The deliberate omission, concealment, falsification or misrepresentation 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;

E2.A5.1.2.4. Personal conduct or concealment of information that increases an individual's vulnerability to coercion, exploitation or duress, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail.

E2.A5.1.3. Conditions that could mitigate security concerns include:

None

CONCLUSIONS

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions above, I conclude the following with respect to each allegation set forth in the SOR:

With respect to Guideline E, I conclude the Government proved its case. The key conditions of Guideline E applicable in this case are questionable judgment, untrustworthiness, unreliability, lack of candor, and dishonesty. Applicant meets these standards based on his prior conduct that showed questionable judgment, unreliability.

I conclude Applicant joined the Air Force in 1995 only because his father thought it would make a man of him. Applicant did not want to join and be away from the comforts of home and his various stress-relievers. Applicant tried at the hearing to avoid saying he cut his wrist in an effort to get out of the Air Force, but that assertion is not believable. He knew what the outcome would be once he did that, coupled with answering a questionnaire disclosing his suicide thoughts. Applicant knew what he was doing and what the result would be.

Next, Applicant signed the DD 214 on which it states he got an entry level separation. With an Air Force senior non-commissioned officer father to answer any questions he might have, and less than 30 days of service, it is not reasonable to believe Applicant thought he had an honorable discharge. Furthermore, the one time Applicant was away from his family in the military he spends two weeks in the mental health ward of a major Air Force hospital at a large training base, but now he does not remember those events. This testimony is also not reasonable or credible. His father testified the family never mentioned the entire incident after Applicant returned home. The family obviously wanted this event to be buried and not bother Applicant again.

Finally, the incident resurfaced when Applicant was required to complete his SCA for his employer. The one major incident in Applicant's life outside his family Applicant now states he does not remember and thinks he got an honorable discharge, so he does not disclose these events on the SCA in answer to Questions 17 and 19, nor does he explain them from his perspective in Question 43, the catch-all SCA question. The entire situation is forgotten by him because he was young and time has passed, so he asserts he did not deliberately falsify his answers on the SCA. He knew what happened to him in the Air Force in 1995, and he disclosed the dates of that service, yet he wants me to believe he forgot everything else about it. That claim is not believable. This conduct shows Applicant is untrustworthy, lacks candor, and is dishonest in answering the SCA. Therefore, Disqualifying Conditions (DC) 2 and DC 4 apply.

Regarding Mitigating Conditions (MC), I do not apply any to this case based on the analysis I made of the record evidence. I conclude this guideline against Applicant.

FORMAL FINDINGS

Formal Findings as required by Section E3.1.25 of Enclosure 3 of the Directive are hereby rendered as follows:

Paragraph 1 Guideline E: Against Applicant

Subparagraph 1.a.: Against Applicant

Subparagraph 1.a.: Against Applicant

Subparagraph 1.b.: Against Applicant

Subparagraph 1.c. Against Applicant

Subparagraph 1.d.: Against Applicant

Subparagraph 1.e.: Against Applicant

DECISION

In light of all the circumstances and facts 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.

Philip S. Howe

Administrative Judge