DATE: March 31, 2004
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
HENRY LAZZARO
APPEARANCES
FOR GOVERNMENT
Marc Curry, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
On April 3, 1995, Applicant was convicted of Carrying a Handgun/Weapon on Person. He was sentenced to be imprisoned for a term of three years (suspended) and placed on supervised probation for three years. Because of the statutory disqualification imposed by 10 U.S.C. § 986, he is unable to mitigate the security concern his criminal conduct has created. Clearance is denied. I do not recommend further consideration of this case for a waiver.
STATEMENT OF THE CASE
On July 28, 2003, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant stating they were unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. (1) The SOR, which is in essence the administrative complaint, alleges a security concern under Guideline J for criminal conduct. The SOR also alleges that 10 U.S.C. § 986 disqualifies Applicant from having a security clearance granted or renewed.
Applicant submitted a sworn answer to the SOR that was received by DOHA on August 11, 2003, and requested a hearing. Applicant admitted he was convicted of the offense of Carry Handgun/Weapon on Person in 1994 and sentenced to three years in prison (suspended) and probation. He denied that he was arrested in 1986 for concealment of a deadly weapon.
This case was assigned to me on December 4, 2003. A notice of hearing was issued on January 14, 2004, scheduling the hearing for January 28, 2004. Applicant was contacted by Department Counsel, and declined to waive the fifteen-day notice requirement contained in the Directive. A new notice of hearing was issued on January 30, 2004, scheduling the hearing for February 20, 2004. The hearing was conducted as rescheduled. The government submitted seven documentary exhibits at the hearing that were marked as Government Exhibits (GE) 1-7 and admitted into the record without an objection. The Applicant testified at the hearing and submitted four documentary exhibits that were marked as Applicant's Exhibits (AE) 1-4 and admitted into the record without an objection. The transcript was received on February 27, 2004.
FINDINGS OF FACT
Applicant's admission to one of the allegations in the SOR is incorporated herein. In addition, after a thorough review of the pleadings, exhibits, and character reference letters, I make the following findings of fact:
Applicant is a 43-year-old man who has been employed by government contractors as a heavy truck driver and test operator since June 1986. He submitted two letters of recommendation from people who oversee his work attesting to his being a skilled and valued employee. He was married in July 1982, and divorced in August 1987. He has two children who are presently 6 years and 4 months of age. He has possessed a secret security clearance since approximately 1987. There have never been any complaints made or investigations conducted of any alleged breeches of security or mishandling of classified information on his part. No action has ever been taken to revoke or downgrade a clearance held by Applicant because of security concerns, prior to the action herein involved.
Applicant joined the United States Army in September 1978, shortly after he graduated from high school. He was stationed in a foreign country after completion of basic training, and admits abusing heroin and marijuana during that time. He did receive treatment for drug abuse and has not used an illegal controlled substance since 1980. Applicant received four company grade nonjudicial punishments between June 1983 and December 1984, pursuant to Article 15 of the Uniform Code of Military Justice. (2) He was also counseled on eleven occasions between January 1983 and January 1985 because of either unsatisfactory performance or the commission of minor military offenses. Applicant was discharged from the Army in February 1985 based on his unsatisfactory performance. He received a general discharge.
Applicant was arrested on November 9, 1985 and charged with Driving While Intoxicated (DWI) and Possession of a Concealed Deadly Weapon. Applicant claims he was not actually the driver of the vehicle that was involved in a one-car accident on that date, but told responding police officers he was the driver because the actual driver did not have a valid driver's license. He also claims that when the accident occurred a handgun owned by his mother slid from under the front seat of the car and he picked it up and placed it in his pocket. He denies knowing the weapon was in the vehicle prior to the accident. Although Applicant claims he was only convicted of DWI, the records confirm he was also placed on Probation Before Judgment (PBJ) on February 11, 1986 for Possession of a Concealed Deadly Weapon. (GE 3)
Applicant was charged with Concealment of a Deadly Weapon and Carrying a Handgun/Weapon on Person on October 8, 1994. He explains that this arrest occurred when he armed himself with a handgun while leaving the house to search for his girlfriend's car that he believed had been stolen. The Concealment of a Deadly Weapon charge was dismissed on April 3, 1995. He was convicted of the Carrying a Handgun/Weapon on Person charge on that same date and sentenced to serve three years in jail (suspended) and placed on three years supervised probation with a condition that he perform eighty hours community service work. He completed the community service work by the end of July 1995, and his probation was terminated after he had served only one year, seven months, and fifteen days.
POLICIES
The Directive sets forth adjudicative guidelines to consider when evaluating a person's eligibility to hold a security clearance. Chief among them are the Disqualifying Conditions (DC) and Mitigating Conditions (MC) for each applicable guideline. Additionally, each clearance decision must be a fair and impartial commonsense decision based upon the relevant and material facts and circumstances, the whole person concept, and the factors listed in ¶ 6.3.1 through ¶ 6.3.6 of the Directive. Although the presence or absence of a particular condition or factor for or against clearance is not outcome determinative, the adjudicative guidelines should be followed whenever a case can be measured against this policy guidance. Considering the evidence as a whole, Guideline J, pertaining to criminal conduct, with its respective DC and MC, is most relevant in this case. BURDEN OF PROOF
The sole purpose of a security clearance decision is to decide if it is clearly consistent with the national interest to grant or continue a security clearance for an applicant. (3) The government has the burden of proving controverted facts. (4) The burden of proof in a security clearance case is something less than a preponderance of evidence (5), although the government is required to present substantial evidence to meet its burden of proof. (6) "Substantial evidence is more than a scintilla, but less than a preponderance of the evidence." (7) Once the government has met its burden, the burden shifts to an applicant to present evidence of refutation, extenuation, or mitigation to overcome the case against him. (8) Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. (9)
No one has a right to a security clearance (10) and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." (11) Any reasonable doubt about whether an applicant should be allowed access to classified information must be resolved in favor of protecting national security. (12)
CONCLUSIONS
Under Guideline J, criminal conduct is a security concern because a history or pattern of criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. Willingness to abide by rules is an essential qualification for eligibility for access to the Nation's secrets. A history of illegal behavior indicates an individual may be inclined to break, disregard, or fail to comply with regulations, practices, or procedures concerning safeguarding and handling classified information.
The government has established its case against Applicant under Guideline J. The evidence establishes he has on two occasions committed criminal offenses based upon his illegal carrying of a handgun. He was placed on PBJ for the first offense; and was sentenced to imprisonment for a term of three years (suspended) for the second offense. He was also placed on supervised probation for the second offense. Disqualifying Conditions (DC) 2: A single serious crime or multiple lesser offenses; and DC 3: Conviction in a Federal or State court, including a court-martial of a crime and sentenced to imprisonment for a term exceeding one year apply in this case.
Other than the two weapons violations, Applicant has led a law-abiding life since being discharged from the military. The nonjudicial punishments he received while in the Army were all for purely military offenses, with the sole exception of a larceny charge that was handled at the lowest available disciplinary level. The character letters he submitted attest to his honesty, integrity and competency as a driver. I find that Mitigating Conditions (MC) 1: The criminal behavior was not recent; and MC 6: There is clear evidence of successful rehabilitation apply in this case. However, because of the statutory disqualification imposed by 10 U.S.C. § 986, Applicant is unable to mitigate his criminal conduct. Guideline J is decided against Applicant.
I do not recommend further consideration of this case for a waiver of the disqualification mandated by 10 U.S.C. § 986.
FORMAL FINDINGS
SOR ¶ 1-Guideline J: Against the Applicant
Subparagraph a: Against the Applicant
Subparagraph b: Against the Applicant
Subparagraph c: Against the Applicant
DECISION
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 do not recommend further consideration of this case for waiver of the 10 U.S.C. § 986 disqualification. Clearance is denied.
Henry Lazzaro
Administrative Judge
1. This action was taken under Executive Order 10865 and DoD Directive 5220.6, dated January 2, 1992, as amended and modified (Directive).
The offenses for which he was punished consisted of three unauthorized absences (Article 86), one false official statement (Article 107), and one larceny (Article 121). GE 7
ISCR Case No. 96-0277 (July 11, 1997) at p. 2.
ISCR Case No. 97-0016 (December 31, 1997) at p. 3; Directive, Enclosure 3, Item E3.1.14.
Department of the Navy v. Egan 484 U.S. 518, 531 (1988).
ISCR Case No. 01-20700 (December 19, 2002) at p. 3 (citations omitted).
ISCR Case No. 98-0761 (December 27, 1999) at p. 2.
ISCR Case No. 94-1075 (August 10, 1995) at pp. 3-4; Directive, Enclosure 3, Item E3.1.15.
ISCR Case No. 93-1390 (January 27, 1995) at pp. 7-8; Directive, Enclosure 3, Item E3.1.15
Egan, 484 U.S. at 528, 531.
Id at 531.
Egan, Executive Order 10865, and the Directive.