DATE: January 27, 2007

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

Applicant for Security Clearance

ECISION OF ADMINISTRATIVE JUDGE

CLAUDE R. HEINY

APPEARANCES

FOR GOVERNMENT

Richard A. Stevens, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Five years ago, while in college, Applicant had a false ID card. Additionally, he set some cardboard boxes and newspaper on fire in front of a neighbor's door. There has been no adverse criminal conduct since. The record evidence is sufficient to mitigate or extenuate the negative security implications stemming from the criminal conduct. Clearance is granted.

STATEMENT OF THE CASE

On February 28, 2006, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) stating that DOHA could not make the preliminary affirmative finding ⁽¹⁾ that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The SOR set forth reasons why a security clearance could not be granted or continued due to Criminal Conduct concerns.

On March 13, 2006, Applicant answered the SOR and requested a hearing. On September 18, 2006, I was assigned the case. On September 18, 2006, a Notice of Hearing was issued for the hearing held on October 18, 2006. On October 30, 2006, DOHA received a copy of the transcript (Tr.).

FINDINGS OF FACT

The SOR alleges security concerns about criminal conduct. Applicant admits to the following: that he was arrested for arson of an occupied structure and pleaded guilty to attempted arson of property, a class 6 felony. He was ordered to pay a $2,000 fine to the arson fund, placed on three years probation, and ordered to perform 100 hours of community service. In May 2003, having met the conditions of sentence and being released from probation, the charge was reduced to a misdemeanor.

The admissions are incorporated herein as findings of fact. After a thorough review of the entire record, I make the following additional findings of fact:

Applicant is a 26-year-old software engineer who has worked for a defense contractor since November 2003, and is seeking to obtain a security clearance. Applicant's coworkers believe Applicant is responsible, dependable, a trustworthy coworker, and a good team player who shares his expertise. He has been rated as an above average performer. (App Ex B and C, Tr. 28, 32) His most recent performance assessment (App Ex D) rates Applicant as a high contributor who works well with others, contributes to problem resolution, is an asset to the team, has a good degree of technical knowledge, and takes on new assignments enthusiastically.

In March 2001, Applicant was cited for a falsification of a driver's license or identification card and possession of a cancelled or fictitious driver's license or identification card. Applicant obtained a Department of Motor Vehicles (DMV) identification card that listed Applicant's birthday as two years before his actual birth date. Applicant knew the DMV had made a mistake on the ID card, but took no actions to correct the mistake. (Gov Ex 4) He was fined $232.00.

In October 2001, Applicant--then age 21--was talking to his neighbor in a bar when his neighbor's ex-boyfriend came up, punched Applicant in the face, and ran away. Applicant later called his neighbor, then went by her apartment attempting to get information about her ex-boyfriend. The neighbor refused to give him any information. Later that evening, Applicant threw cardboard beer boxes and a lighted newspaper onto the concrete patio of the same neighbor, spraying the flames with starter fluid. Applicant then ran to his apartment. Shortly thereafter, Applicant was arrested.

Applicant had been drinking prior to setting the fire. His plan was to put some garbage on the front porch, set it on fire, ring the doorbell and run and hide. When Applicant saw the size of the initial flames, he realized this had been a stupid idea. (Gov Ex 2)

In April 2003, Applicant was discharged from probation. (App Ex A) On his November 2003 Security Clearance Application, Standard Form (SF) 86, Applicant listed his arrest and, in the general remarks, acknowledges he used extremely poor judgment in his actions.

Applicant graduated high school as an honor student with a 4.5 GPA. (Tr. 17) He earned a college scholarship and worked part-time to pay expenses not covered by the scholarship. In May 2003, he graduated from the university with honors. At the time of the incident, Applicant was a student. He is now employed full time and has purchased a house.

The Directive sets forth adjudicative guidelines to be considered when evaluating a person's eligibility to hold a security clearance. Disqualifying Conditions (DC) and Mitigating Conditions (MC) are set forth for each applicable guideline. Additionally, each 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 Section 6.3 of the Directive. The adjudicative guidelines are to be applied by administrative judges on a case-by-case basis with an eye toward making determinations that are clearly consistent with the interests of national security. The presence or absence of a particular condition or factor for or against clearance is not determinative of a conclusion for or against an applicant. However, the adjudicative guidelines should be followed whenever a case can be measured against this policy guidance. Considering the evidence as a whole, I conclude the relevant guideline to be applied here is Guideline J, Criminal Conduct.

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. Initially, the Government must establish, by substantial evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, an applicant from being eligible for access to classified information. The burden of proof in a security clearance case is something less than a preponderance of evidence, although the government is required to present substantial evidence to meet its burden of proof. Substantial evidence is more than a scintilla, but less than a preponderance of the evidence. All that is required is proof of facts and circumstances which indicate an applicant is at risk for mishandling classified information, or that an applicant does not demonstrate the high degree of judgment, reliability, or trustworthiness required of persons handling classified information. Additionally, the government must prove controverted facts alleged in the SOR. Once the government has met its burden, the burden shifts to an applicant to present evidence to refute, extenuate or mitigate government's case. Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. ⁽²⁾

As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 528 (1988), "no one has a 'right' to a security clearance." 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. The "clearly consistent with the national interest" standard compel resolution of any reasonable doubt about an applicant's suitability for access to classified information in favor of protecting national security. Security clearance determinations should err, if they must, on the side of denials.

The government has satisfied its initial burden of proof under criminal conduct, Guideline J. Under Guideline J, the security eligibility of an applicant is placed into question when that applicant is shown to have a history or pattern of criminal activity creating doubt about his judgment, reliability, and trustworthiness. Applicant was fined $232 for having an ID card that listed an incorrect birth date. Additionally, he was convicted of attempted arson of property. Because of these incidents, DC 1 (E2.A10.1.2.1. Allegations or admission of criminal conduct, regardless of whether the person was formally charged) and DC 2 (E2.A10.1.2.2. A single serious crime or multiple lesser offenses) apply.

The arson incident was an uncharacteristic lapse in judgment of a college student five year ago. As a college student he failed to inform the DMV his birthday was incorrect as shown on the ID. A college student with a false ID is not uncommon. It is unlikely to repeat itself now that Applicant is 26 years old. The most recent arrest occurred in 2001, which was five years prior the hearing. This behavior is not recent. MC 1 (E2.A10.1.3.1. The criminal behavior was not recent) applies. Applicant has graduated from college with honors, has a full-time job, has purchased a house, and has acknowledged the stupidity of his conduct. His change in lifestyle makes it unlikely the criminal conduct will recur. MC 4 (E2.A10.1.3.4. The person did not voluntarily commit the act and/or the factors leading to the violation are not likely to recur) applies. Applicant's life style changes show evidence of successful rehabilitation. MC 6 (E2.A10.1.3.6. There is clear evidence of successful rehabilitation) applies. I find for Applicant as to criminal conduct.

In reaching my conclusions I have also considered: the nature, extent, and seriousness of the conduct; Applicant's age and maturity at the time of the conduct; the circumstances surrounding the conduct; Applicant's voluntary and knowledgeable participation; the motivation for the conduct; the frequency and recency of the conduct; presence or absence of rehabilitation; potential for pressure, coercion, exploitation, or duress; and the probability that the circumstance or conduct will continue or recur in the future.

Formal Findings as required by Section 3, Paragraph 7, of Enclosure 1 of the Directive are hereby rendered as follows:

Paragraph 1 Criminal Conduct: FOR APPLICANT

Subparagraph 1.a: For Applicant

Subparagraph 1.b: For 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 a security clearance for Applicant. Clearance is granted.