DATE: April 28, 2004

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ROBERT ROBINSON GALES

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Esquire, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Forty-one-year old Applicant's 1988 arrest for trafficking a controlled substance, cocaine, and conspiracy to traffic a controlled substance, cocaine, following several sales of cocaine to an undercover narcotics agent for the sheriff's department, resulted in her conviction on three counts of trafficking a controlled substance, cocaine. She was eventually convicted and sentenced, in part, to serve nine years in prison on each of the three counts, to run concurrently, all of which was suspended except for time served, and placed on five years probation. The application of 10 U.S.C. § 986 disqualifies her from eligibility for a security clearance. Clearance is denied. Further consideration of this case for a waiver of 10 U.S.C. § 986 is not recommended.

STATEMENT OF THE CASE

On October 23, 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 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 Applicant, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn, written answer, dated November 20, 2003, Applicant responded to the allegations set forth in the SOR, and elected to have her case decided on the written record in lieu of a hearing. Department Counsel submitted the government's written case on January 29, 2004. A complete copy of the file of relevant material (FORM) ⁽¹⁾ was provided to Applicant, and she was afforded, until March 28, 2004, an opportunity to file objections and submit material in refutation, extenuation, or mitigation. No further response was made. The case was assigned to me on April 27, 2004.

Applicant has admitted the factual allegations (subparagraphs 1.a. and 1.b.) pertaining to criminal conduct under Guideline J. Those admissions are incorporated herein as findings of fact. She has requested a waiver under the remaining allegation.

After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 41-year-old employee of a defense contractor, and is seeking to obtain a security clearance the level of which has not been revealed.

Applicant was involved in a series of separate criminal incidents as well as illegal substance abuse over a substantial period. On several occasions in November-December 1987, when she was 24 years old, Applicant sold cocaine to an undercover narcotics agent for the sheriff's department. ⁽²⁾ The following February, she was arrested and charged with four counts of trafficking a controlled substance, cocaine, and one count of conspiracy to traffic a controlled substance, cocaine. ⁽³⁾ Upon her plea, she was found guilty of three counts of trafficking a controlled substance, cocaine. ⁽⁴⁾ The remaining counts were dismissed. ⁽⁵⁾ She was eventually convicted and sentenced, in part, to serve nine years in prison on each of the three counts, to run concurrently, all of which was suspended except time served, and placed on five years probation. ⁽⁶⁾ She was also directed to complete a substance abuse rehabilitation program. ⁽⁷⁾

Applicant successfully completed the two year program in 1991, ⁽⁸⁾ but soon succumbed to substance abuse once again. ⁽⁹⁾ She became addicted to heroin, but following methadone treatment, was able to withdraw from it. ⁽¹⁰⁾ Once again, she vowed to abstain. Unfortunately, despite moving to another state with her husband, Applicant fell back into the drug culture. ⁽¹¹⁾ In March 1995, after giving her brother-in-law a ride to pick up a package, she was again arrested. ⁽¹²⁾ This time she was charged with unlawful possession of controlled dangerous substance, methamphetamine. ⁽¹³⁾ Applicant was found not guilty by a U.S. District Court jury verdict in June 1995. ⁽¹⁴⁾

Applicant has abstained from any further substance abuse since 1995, and has vowed to continue abstaining in the future. ⁽¹⁵⁾

She married for the third time in April 1993. ⁽¹⁶⁾

It appears that Applicant is a truck driver, but it is unclear as to how long she has been employed by her current employer. ⁽¹⁷⁾ The quality of her performance has not been developed in the record.

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Conditions).

An administrative judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision in Section E2.2., Enclosure 2, of the Directive, are intended to assist the administrative judge in reaching fair and impartial common sense decisions.

Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. The Adjudicative Process factors which an administrative judge should consider are: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (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.

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

Criminal Conduct - Guideline J: 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, as well as those which could mitigate security concerns, pertaining to this adjudicative guideline are set forth and discussed in the conclusions below.

On June 7, 2001, the Deputy Secretary of Defense issued a Memorandum, 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. The memorandum provides policy guidance for the implementation of Section 1071 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, which amended Title 10, United States Code, to add a new section (10 U.S.C. § 986) that precludes the initial granting or renewal of a security clearance by the Department of Defense under specific circumstances. The situation described above involves one of those specific circumstances.

The statutory mandate applies to any DoD officer or employee, officer, director, or employee of a DoD contractor, or member of the Army, Navy, Air Force, or arine Corps on active duty or in an active status, who is under consideration for the issuance or continuation of eligibility for access to classified information and who falls under one or more of the following provisions of the statute:

(1) has been convicted in any court of the United States of a crime and sentenced to imprisonment for a term exceeding one year;

(2) is an unlawful user of, or is addicted to, a controlled substance (as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802));

(3) is mentally incompetent, as determined by a mental health professional approved by the Department of Defense; or

(4) has been discharged or dismissed from the Armed Forces under dishonorable conditions.

The statute also "provides that the Secretary of Defense and the Secretary of the Military Departments concerned may authorize a waiver of the prohibitions concerning convictions, dismissals and dishonorable discharges from the armed forces in meritorious cases."

Implementing guidance attached to the memorandum indicates that provision 1, described above, "disqualifies persons with convictions in both State and Federal courts, including UCMJ offenses, with sentences imposed of more than one year, regardless of the amount of time actually served."

Since the protection of the national security is the paramount consideration, the final decision in each case must be arrived at by applying the standard the issuance of the clearance is "clearly consistent with the interests of national security," ⁽¹⁸⁾ or "clearly consistent with the national interest." For the purposes herein, despite the different language in each, I have concluded both standards are one and the same. In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

In the decision-making process, the burden of producing evidence initially falls on the government to establish a case which demonstrates, in accordance with the Directive, it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. If the government meets its burden, the heavy burden of persuasion then falls upon the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the government's case, and to ultimately demonstrate it is clearly consistent with the national interest to grant or continue the applicant's clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship the government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. 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.

One additional comment is worthy of note. Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides industrial security clearance 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. Nothing in this Decision should be construed to suggest I have based this decision, in whole or in part, on any express or implied decision as to Applicant's allegiance, loyalty, or patriotism.

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

The government has established its case under Guideline J. By her own admission, Applicant was involved in criminal behavior in 1987 that resulted in her arrest and conviction. As a result, she was sentenced to nine years imprisonment (suspended) for each of the three counts of which she was convicted, to run concurrently, with five years probation. Applicant's criminal conduct clearly falls within Criminal Conduct Disqualifying Condition (CC DC) E2.A10.1.2.1. (allegations or admissions of criminal conduct, regardless of whether the person was formally charged), CC DC E2.A10.1.2.2. (a single serious crime or multiple lesser offenses), and CC DC E2.A10.1.2.3. (conviction in a Federal or State court, including a court-martial of a crime and sentenced to imprisonment for a term exceeding one year).

It has been approximately 16 years since that conviction and sentence. Although Applicant successfully completed a two year treatment and rehabilitation program in 1991, she resumed substance abuse, and became addicted to heroin. Following methadone treatment, she was able to withdraw from it and vowed to abstain. Unfortunately, she was unable to keep her vow and soon fell back into the drug culture. In March 1995, she was again arrested and charged with unlawful possession of controlled dangerous substance, methamphetamine. Applicant was found not guilty of the charge in June 1995. It is to her credit that Applicant has abstained from any further substance abuse since 1995, and has vowed to continue abstaining in the future. While the 1987 criminal conduct for which Applicant was convicted is not considered recent, her other criminal conduct involving solely substance abuse, while uncharged in the SOR, continued until at least 1995. However, since 1995, Applicant has not been involved in any additional criminal conduct and has apparently turned her life around and avoided further criminal endeavors. Those facts support the application of Criminal Conduct Mitigating Condition (CC MC) E2.A10.1.3.1. (the criminal behavior was not recent).

Moreover, by virtue of her spotless record since 1995, there is substantial evidence of successful rehabilitation, thus activating CC MC E2.A10.1.3.6. (there is clear evidence of successful rehabilitation). However, while there was only one significant conviction on three criminal counts, Applicant's overall course of criminal conduct occurred during November-December 1987, and I cannot comply with Applicant's desire that I find that it was isolated as set forth in CC MC E2.A10.1.3.2. (the crime was an isolated incident).

As noted above, in June 1995, following a federal jury trial, Applicant was acquitted of unlawful possession of controlled dangerous substance, methamphetamine. She provided a reasonable explanation to the jury as well as to DOHA, and the government has offered no evidence to rebut her contentions. I believe Applicant has, through evidence of extenuation and explanation, successfully mitigated or overcome the government's case with respect to that incident. Accordingly, allegation 1.b. of the SOR is concluded in favor of Applicant.

A person should not be held forever accountable for misconduct from the past when there is a substantial indication of subsequent reform, remorse, or rehabilitation. Under other circumstances, I would conclude Applicant had, through evidence of extenuation and explanation, successfully mitigated and overcome the government's case, and the allegations of the SOR would be concluded in favor of Applicant.

However, Applicant's criminal conduct also falls within 10 U.S.C. § 986. She was convicted in a federal court of three crimes and sentenced to three concurrent terms of nine years imprisonment (suspended)--a term which obviously exceeds the one year period envisioned in the law. Furthermore, as noted above, the implementing guidance attached to the memorandum indicates such a sentence would disqualify persons with "sentences imposed of more than one year, regardless of the amount of time actually served." In this instance, Applicant was fortunate enough to have her prison term reduced rather than actually served, but that fact does not help her in this issue. Consequently, by virtue of 10 U.S.C. § 986, I conclude Applicant is not eligible for a security clearance. Accordingly, allegation 1.a. of the SOR, is concluded against Applicant.

In this instance, I do not recommend further consideration of this case for a waiver of 10 U.S.C. § 986.

For the reasons stated, I conclude Applicant is not eligible for access to classified information.

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

Paragraph 1. Guideline J: AGAINST THE APPLICANT

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: For 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. Moreover, I do not recommend further consideration of this case for a waiver of 10 U.S.C. § 986. Clearance is denied.

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1. The government submitted nine items in support of its contentions.

2. Item 6 (Police Record-Offense/Incident Narrative Reports, dated November 15-December 7, 1987), at 9-23.

3. Item 7 (U.S. Department of Justice, Federal Bureau of Investigation (FBI) Investigation Record, dated January 3, 2002), at 2; Item 6 (Criminal Information, undated, but filed March 16, 1988), at 1-2.

4. Item 5 (Statement of Subject, dated January 21, 2002), at 1; Item 6 (Judgment and Sentence, dated March 28, 1989), at 1.

5. Item 3 (Response to SOR, dated November 20, 2003), at 1.

6. Item 6 (Judgement and Sentence), supra note 4, at 2.

7. Id.

8. Item 5, supra note 4, at 1.

9. Id.

10. Id.

11. Id.

12. Id. It should be noted that there is some inconsistency regarding the date of the incident. Applicant recalls the incident as having occurred in April, but the official court records reveal it occurred in March.

13. Item 8 (Court Records-Felony Information, dated April 17, 1995).

14. Item 8 (Court Records-Judgment of Acquittal, dated June 26, 1995).

15. Item 5, supra note 4, at 2.

16. Item 4 (Questionnaire for National Security Positions (SF 86), dated July 31, 2000), at 5.

17. It should be noted that an incomplete version of Item 4 is in the case file and that page 3 thereof is missing.

18. Exec. Or. 12968, "Access to Classified Information;" as implemented by Department of Defense Regulation 5200.2-R, "Personnel Security Program," dated January 1987, as amended by Change 3, dated November 8, 1995, and further modified by memorandum, dated November 10, 1998. However, the Directive, as amended by Change 4, dated April 20, 1999, uses both "clearly consistent with the national interest" (Sec. 2.3.; Sec.2.5.3.; Sec. 3.2.; and Sec. 4.2.; Enclosure 3, Sec. E3.1.1.; Sec. E3.1.2.; Sec. E3.1.25.; Sec. E3.1.26.; and Sec. E3.1.27.), and "clearly consistent with the interests of national security" (Enclosure 2, Sec. E2.2.3.); and "clearly consistent with national security" (Enclosure 2, Sec. E2.2.2.)