DATE: December 30, 2005

---------------

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

CHRISTOPHER GRAHAM

APPEARANCES

FOR GOVERNMENT

Robert E. Coacher, Esq., Department Counsel

FOR APPLICANT

Patricia H. Witte, Esq.

SYNOPSIS

In the fall of 1998, Applicant, a 38-year-old employee of a federal contractor, by rude behavior and failure to communicate and cooperate with his superiors, demonstrated his unreliability, poor judgment, and lack of trustworthiness. However, this personal conduct has been mitigated because it was an isolated period of time, was not recent, and his subsequent conduct is in compliance with DoD guidelines. Clearance is granted.

On October 2, 2003, 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 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 alleged facts under Guideline E (personal conduct), detailing 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 Applicant's security clearance.

In a written statement, dated December 10, 2003, Applicant responded to the allegations in the SOR, and requested a hearing. The case was previously assigned to another administrative judge on July 29, 2004, but was reassigned to me on February 1, 2005, due to caseload considerations. Notice of the hearing was issued April 1, 2005, scheduling the hearing for May 18, 2005. The hearing was held as scheduled. The transcript was received June 1, 2005.

Applicant denied the allegations in the SOR. After a thorough review of the record as a whole, I make the following additional findings of fact:

Applicant is a divorced, 38-year-old owner-employee of a federal contractor. ⁽¹⁾ He is a native of Vietnam, came to the U. S. in 1975, and became a naturalized citizen in 1987. ⁽²⁾ In 1997 and 1998, he was employed by a federal contractor as a junior network administrator. ⁽³⁾ He was assigned to work with the person hiring him to observe and learn what his supervisor was doing. ⁽⁴⁾ After four months they went on a trip and his supervisor died unexpectedly. ⁽⁵⁾ Appellant replaced his supervisor in a job that required maintaining a software system for a federal agency. ⁽⁶⁾ Appellant was at a disadvantage because his supervisor's knowledge of the system died with the supervisor, and there was a backlog of work that needed to be done. ⁽⁷⁾

In June 1998, Appellant received a disciplinary reprimand for making a personnel action without the approval of the company's human resources department. ⁽⁸⁾ In September 1998, Appellant was assigned to a contract in a western state. ⁽⁹⁾ One of the agency's employees who worked with Applicant testified that Applicant at first was a "go-getter," that he seemed to be ambitious, and that he had been recognized by the agency for his excellent work. ⁽¹⁰⁾ He further testified that about the last four to six months that Applicant worked for the contractor, he received a "tremendous amount" of complaints about Applicant. ⁽¹¹⁾ He stated that these complaints talked about Applicant's failure to cooperate, rude behavior, ignoring requests for documentation, failure to communicate with agency worksite network administrators, demands for system changes in contravention of his duties, being argumentative, and missing deadlines. ⁽¹²⁾ His opinion was that Applicant was unreliable, untrustworthy, had poor judgement, and that he would not hire him. ⁽¹³⁾

Another of the contractor's employees made a site visit to observe Applicant's behavior. ⁽¹⁴⁾ His opinions of Applicant were the same and he felt Applicant should not have a security clearance. ⁽¹⁵⁾

Upon recommendation of the government agency to the contractor, Applicant was terminated from the agency's contract and he submitted his resignation. ⁽¹⁶⁾

Applicant testified that he was not uncooperative, that he did not ignore requests for documentation, that he was not rude, that he did not miss deadlines, that he was not argumentative, and that he did in fact communicate with staff. ⁽¹⁷⁾

Three witnesses who have worked with him on projects over the past several years testified that Applicant is trustworthy, reliable, and that he should be given a clearance. ⁽¹⁸⁾

POLICIES

"[No] one has a 'right' to a security clearance." ⁽¹⁹⁾ 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." ⁽²⁰⁾ 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 coercion, and willingness and ability to abide by regulations governing use, handling, and protection of classified information." ⁽²¹⁾

Eligibility for a security clearance may be adjudicated using the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personnel 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 factors listed in ¶ 6.3 of the Directive: nature and seriousness of the conduct and surrounding circumstances; frequency and recency of the conduct; age of the Applicant; motivation of the applicant, and the extent to which the conduct was negligent, wilful, voluntary, or undertaken with knowledge of the consequences involved; absence or presence of rehabilitation; and probability that the circumstances or conduct will continue or recur in the future.

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. ⁽²²⁾ 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. ⁽²³⁾

Once the Government establishes a disqualifying condition, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ⁽²⁴⁾ An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ⁽²⁵⁾ A person who has access to classified information enters into a fiduciary relationship with the Government based on trust and confidence. The Government, therefore, has a compelling interest in ensuring each Applicant possesses the requisite judgment, reliability and trustworthiness of one who will protect the national interests as his or his own. The "clearly consistent with the national interest" standard compels resolution of any reasonable doubt about an Applicant's suitability for access in favor of the Government. ⁽²⁶⁾ Decisions under this Directive include, by necessity, consideration of the possible risk an applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides industrial security decisions shall be "in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned." Security clearance decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism.

Having considered the evidence as a whole, I find the following adjudicative guideline most pertinent to an evaluation of the facts of this case: Guideline E (personal conduct) (PC), Directive, ¶ E2.A5.1.1. 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.

Applicant denied the allegations enumerated in the SOR. However, two witnesses for the government, both supervisors of Applicant, confirmed that he demonstrated rude behavior, that he failed to cooperate and fully follow orders, that he failed to communicate with his supervisors, and for a four to six month period in the summer and fall of 1998, conducted himself in such a manner that he lost the confidence, trust, and reliance of those supervisors. Applicant's three witnesses had no knowledge of the events listed in the SOR as their interactions with Applicant occurred in the time frame after 2000. Applicant's witnesses testified to his good character, trustworthiness, reliability, and that he should be given a clearance. I conclude that the government established Guideline E, Personal Conduct Disqualifying Condition (PC DC) E2.A5.1.2.1. (Reliable, unfavorable information provided by associates, employers, coworkers, neighbors and other acquaintances). I believe the testimony of the government witnesses was the more credible and thus the government established its case.

However, I also find that Applicant has mitigated the allegations pursuant to PC MC E2.A5.1.3.1. (The information was not pertinent to a determination of judgment, trustworthiness, or reliability) and PC MC E2.A5.1.3.2. (the conduct was an isolated incident and was not recent). This is what has transpired in this case. Applicant's problems of personal conduct are limited to a four to six month time frame in the fall of 1998. It has been seven years since this series of incidents. Applicant's witnesses testified that they have worked with him over the past several years and their testimony is that Applicant has displayed conduct that is reliable, trustworthy, that he is a person of good character, and should be granted a security clearance. I conclude that Applicant has matured and has shown that he can better conduct himself in working with fellow employees. Therefore, I conclude he successfully mitigated the disqualifying condition.

.

Applicant has not engaged in any misconduct during the past seven years such as to render him an inappropriate candidate for a security clearance. I conclude Guideline E for the Applicant.

Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1. Guideline E: FOR THE APPLICANT

Subparagraph 1.a. For the Applicant

Subparagraph 1.a.i. For the Applicant

Subparagraph 1.a.ii. For the Applicant

Subparagraph 1.a.iii. For the Applicant

Subparagraph 1.a.iv. For the Applicant

Subparagraph 1.b. For the Applicant

Subparagraph 1.c. For the Applicant

Subparagraph 1.d. For the Applicant

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue Applicant's security clearance. Clearance is granted.