DATE: February 07, 2007
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SSN:-------------------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
CAROL G. RICCIARDELLO
APPEARANCES
FOR GOVERNMENT
Eric Borgstrom, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant is a 24 year old engineer who has worked for a federal contractor since graduating from college in 2004. While in college he used drugs and shortly after completing college he was arrested for operating a vehicle under the influence of alcohol. He pled to a lesser offense, paid a fine, attended a first offender course and completed probation. He has learned his lessons from his youthful indiscretions and has not used drugs since college, nor been involved in any other criminal incidents. He volunteers his time mentoring a high school student to help him not make the same mistakes he did. Applicant has mitigated the security concerns raised under Guideline H, drug involvement, Guideline G, alcohol consumption, and Guideline J, criminal conduct. Clearance is granted.
STATEMENT OF CASE
On March 14, 2006, the Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) stating it was unable to find that it is clearly consistent with the national interest to grant or continue a security clearance. (1) The SOR, which is in essence the administrative complaint, alleges security concerns under Guideline H (drug involvement), Guideline G (alcohol consumption) and Guideline J (criminal conduct).
In a sworn statement dated June 7, 2006, Applicant responded to the SOR allegations. Applicant elected to have his case decided on the written record. Department Counsel submitted the government's file of relevant material (FORM) on October 30, 2006. The FORM was mailed to Applicant on November 13, 2006, and received on November 27, 2006. Applicant was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant responded in a timely manner and Department Counsel did not object. Department Counsel provided a response to Applicant's material on January 10, 2007. The case was assigned to me on January 19, 2007.
PROCEDURAL ISSUES
Department Counsel submitted Item 4, Personal Subject Interview, Report of Investigation, Office of Personnel Management (OPM), dated September 20, 2005, as part of his documentary evidence to support the allegations in the SOR. This document is a "results of interview" conducted by OPM. It is void of the interviewer's name, signature, nor any other type of authentication. Department Counsel contends this document is admissible because the Applicant chose to have his case determined based on the administrative record instead of a hearing and therefore the Government is relieved of authenticating the document as required under Paragraph 20 of the Additional Procedural Guidance. (2) Paragraph 20 states in part: "Official records of evidence compiled in the regular course of business, other than DoD personnel background reports of investigation (ROI), may be received and considered by the Administrative Judge without authenticating witnesses... ." (emphasis added) It goes on to say "An ROI may be received with an authenticating witness provided it is otherwise admissible under the Federal Rules of Evidence." (emphasis added) Department Counsel cites ISCR Case No. 95-0817 (App. Bd. Feb. 21, 1997) in support of his position. Specifically he notes the Appeal Board considered "the Certified Results of Interview" which were admissions by the Applicant made to a Defense Investigative Service investigator to be admissible under Paragraph 22 and under the Federal Rules of Evidence (FRE) 803 "Hearsay Exceptions: Availability of Declarant Immaterial." Paragraph 22 specifically deals with adverse statements made against Applicant by third parties. That situation is not applicable in this case. FRE 803 (6), permits various types of documents to be admitted into evidence provided they were made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902 (11), Rule 902 (12) . . .." (emphasis added) The ROI offered by the Government is not a Certified Results of Interview. It is an unsworn "Personal Subject Interview" conducted by an unknown person, that is not signed by the interviewer nor interviewee, nor authenticated by an appropriate witness. It does not comply with FRE 902, which requires the document to be certified by the custodian or other person authorized to make the certification. Stated plainly, the ROI is not a Certified Results of Interview. The Government is misguided in its interpretation of the Directives Additional Procedural Guidance under Paragraph 20, the Appeal Board case cited, and the FRE. Department Counsel has not offered any rule that states authentication of personal interview statements are not required when the Applicant elects to not have a hearing. The Government may in their own right request a hearing and circumvent the evidentiary issues raised here. They have chosen not to do so and should not be permitted to use in a FORM what they could not in a hearing. Even if the document were admissible under some other theory, after reviewing it, I find it unreliable. As will be discussed in detail in the findings of facts, Applicant disputes portions of Item 4 and has provided corroborating evidence to support that parts of it are factually incorrect. Even if it was admissible, it is unreliable. I will not consider Item 4 under the legal analysis discussed above and due to its unreliability, in the interest of fairness.
FINDINGS OF FACT
Applicant is 24 years old and employed by a federal contractor since 2004 (3) as an engineer. He is not married. Applicant attended college from August 2000 to May 2004, when he graduated with a degree in electrical engineering.
While attending college and during the years 2002 to 2004 Applicant used cocaine with varying frequency. He used marijuana from January 1998 to at least January 2004 with varying frequency. In 2002, he experimented with Ecstasy and Ketamine one time. Applicant's use of drugs was while he was a college student and ended prior to starting work with his present employer. Applicant is tested by his employer for drug use and has not tested positive.
Applicant was arrested on about September 12, 2004, by a university police officer, and charged with operating under the influence, and a prohibited U-turn. His breathalyzer test registered .12%. Applicant pled guilty to a lesser charge, paid a $2,000 fine, attended an alcohol awareness course and was on probation for one year. (4) He attended and completed the state's first offender alcohol program. He attended Alcoholics Anonymous, but it is unclear for how long. He successfully completed the probation in October 2005. He has not had any other incidents, alcohol or otherwise. His employer is aware of his arrest. Applicant is permitted to drive a company car.
I find Applicant's statement that he has not used illegal drugs since 2004 credible. He claims that at the time he used drugs he had the maturity of a college student. Since beginning work he has been promoted to lead engineer on his project and is a mentor to an underprivileged high school student through a philanthropic program run by his employer. His goal is to help this student not make the same mistakes he did. (5)
POLICIES
Enclosure 2 of the Directive sets forth adjudicative guidelines to be considered in evaluating a person's eligibility to hold a security clearance. Included in the guidelines are disqualifying conditions (DC) and mitigating conditions (MC) applicable to each specific guideline. Additionally, each security clearance decision must be a fair and impartial commonsense decision based on the relevant and material facts and circumstances, the whole-person concept, along with the factors listed in the Directive. Specifically these are: (1) the nature and seriousness of the conduct and surrounding circumstances; (2) the frequency and recency of the conduct; (3) the age of the applicant; (4) the motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequences; (5) the absence or presence of rehabilitation; and (6) the probability that the circumstances or conduct will continue or recur in the future. 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.
The sole purpose of a security clearance determination is to decide if it is clearly consistent with the national interest to grant or continue a security clearance for an applicant. (6) The government has the burden of proving controverted facts. (7) The burden of proof is something less than a preponderance of evidence. (8) 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. (9) Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. (10)
No one has a right to a security clearance (11) and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." (12) Any reasonable doubt about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such sensitive information. (13) The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of an applicant. (14) It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.
Based upon consideration of all the evidence, I find the following adjudicative guideline most pertinent to the evaluation of the facts in this case:
Guideline H-Drug Involvement is a security concern because improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information.
Guideline G-Alcohol Consumption-a security risk may exist because excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness.
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.
Conditions that could raise a security concern and may be disqualifying, as well as those which would mitigate security concerns, pertaining to the adjudicative guideline are set forth and discussed in the conclusions below.
CONCLUSIONS
I have carefully considered all the facts in evidence and the legal standards.
Based on all the evidence, Drug Involvement Disqualifying Condition (DI DC) E2.A8.1.2.1 (Any drug abuse (15)) and DI DC E2.A8.1.2.2 (Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution) apply. Applicant used cocaine with varying frequency for approximately two years and marijuana, with varying frequency over a six year period while a student. He used Ecstacy and Ketamine one time each in 2002. In order to use a drug he must have possessed it. Therefore both DI DC E2.A8.1.2. 1 and DI DC E2.A8.1.2.2 apply.
I considered all the mitigating conditions and especially considered Drug Involvement Mitigating Condition (DI MC) E2.A8.1.3.1 (The drug involvement was not recent); DI MC E2.A8.1.3.2 (The drug involvement was an isolated or aberrational event), and DI MC E2.A8.1.3.3 (A demonstrated intent not to abuse any drugs in the future). Applicant last used drugs in 2004 while he was in college. He has not used drugs since then and refers to himself at that time as having the maturity of a college student. He is now a lead engineer on his project and has been steadily employed for two and a half years drug and incident free. He is tested by his employer for drug use and has not had positive results. I find DI MC E2.A8.1.3.1 applies in that it has been more than two and a half years since he used drugs and therefore his involvement was not recent. Applicant's drug involvement was not isolated because he used drugs over a period of time and different types of drugs. It was also not aberrational because of the different drugs he used and the period of time he used them. Although I find DI MC E2.A8.1.3.2 does not apply, I have given weight to the period of time that Applicant was using drugs, that is during his college years. I have considered his maturity level at this time and societal influences. Most importantly, I have considered that he has not used drugs since graduating from college. I find this to be an important level of maturity that comes with being a responsible adult. I find Applicant's assertions that he is drug free and his initiative in mentoring and guiding a young impressionable underprivileged high school student to not make the same mistakes he did is also a sign of maturity and being responsible. It also reinforces his intention to remain drug free. Therefore I find DI MC E2.A8.1.3.3 applies.
Based on all the evidence I considered all the disqualifying conditions and especially considered Alcohol Consumption Disqualifying Condition (AC DC) E2.A7.1.2.1 (Alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, or other criminal incidents related to alcohol use) and conclude it applies. Applicant had a single alcohol related incident in September 2004.
I have considered all the mitigating conditions and especially considered Alcohol Consumption Mitigating Condition (AC MC) E2.A7.1.3.1 (The alcohol-related incidents do not indicate a pattern), AC MC E2.A7.1.3.2 (The problem occurred a number of years ago and there is no indication of a recent problem), and AC MC E2.A7.1.3.3 (Positive changes in behavior supportive of sobriety). Applicant had one alcohol related incident. He completed the first time offender course, paid his fine, attended AA, and completed his probation period. It has been almost two and a half years since the incident and there have been no additional alcohol related incidents. There is no indication of pattern of alcohol incidents or problems. I find AC MC E2.A7.1.3.1 and AC MC E2.A7.1.3.2 apply. Applicant is gainfully employed, has been promoted, is involved in a mentoring program and obviously has a new awareness of how his youthful indiscretions have ramifications on his life as an adult. He has acted responsibly and reasonable since college. He has matured and understands the seriousness of his youthful actions and their seriousness. However, he has made changes in his life and is proving he is a productive member of society.
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), and CC DC E2.A10.1.2.2 (A single serious crime or multiple lesser offenses) applies. Applicant had an alcohol-related conviction.
I have considered all of the mitigating conditions and especially considered Criminal Conduct Mitigating Condition (CC MC) E2.A10.1.3.1 (The criminal behavior was not recent), CC MC E2.A10.1.3.2 (The crime was an isolated incident), CC MC E2.A10.1.3.4 (The person did not voluntarily commit the act and /or the factors leading to the violation and are not likely to recur) and CC MC E2.A10.1.3.6 (There is clear evidence of successful rehabilitation). CC MC E2.A10.1.3.1 and CC MC E2.A10.1.3.2 apply based on the same analysis stated above. In addition, based on Applicant's increased level of responsibility and maturity as discussed above, I find CC MC E2.A10.1.3.4 also applies as the factors leading to the incident are not likely to recur. Finally, I find there is clear evidence of successful rehabilitation based on the above analysis and with how Applicant has conducted his life since college. Applicant made some serious mistakes when he was a college student and shortly thereafter. However, he has righted himself, put his mistakes behind him, and proven to be rehabilitated and productive. I find CC MC E2.A10.1.3.6 applies in this case.
The Whole Person
In all adjudications, the protection of our national security is the paramount concern. The objective of the security-clearance process is the fair-minded, commonsense assessment of a person's life to make an affirmative determination that the person is eligible for a security clearance. Indeed, the adjudicative process is a careful weighing of a number of variables in considering the "whole person" concept. It recognizes that we should view a person by the totality of their acts, omissions, motivations and other variables. Each case must be adjudged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis.
I considered all the evidence provided and also considered the "whole person" concept in evaluating Applicant's risk and vulnerability in protecting our national interests. I considered Applicant used drugs while in college and has not used them since. I considered his maturity level at the time he was using drugs. I considered he had one alcohol incident, has acted responsibly since the incident, and not had other incidents. I considered his attitude and acceptance of responsibility for his indiscretions, that he learned from them, and is trying to help others. I also considered he made mistakes, has moved on and is a responsible adult. I am persuaded by the totality of the evidence in this case, that it is clearly consistent with the national interest to grant Applicant a security clearance. Accordingly, Guideline H, Guideline G, and Guideline J are decided for Applicant.
FORMAL FINDINGS
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 drug involvement (Guideline H) FOR APPLICANT
Subparagraph 1.a. For Applicant
Subparagraph 1.b. For Applicant
Subparagraph 1.c. For Applicant
Subparagraph 1.d. For Applicant
Paragraph 2 alcohol consumption (Guideline G) FOR APPLICANT
Subparagraph 2.a. For Applicant
Paragraph 3 criminal conduct (Guideline J) FOR APPLICANT
Subparagraph 3.a. For Applicant
DECISION
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.
Carol. G. Ricciardello
Administrative Judge
1. This action was taken under Executive Order 10865, dated February 20, 1960, as amended, and DoD Directive 5220.6, dated January 2,1992, as amended and modified (Directive).
2. FORM see footnote1.
3. There is a discrepancy regarding Applicant's periods of employment as listed in Item 1, his security clearance application. After reviewing his submissions for his entire period of employment, it is apparent that he worked during summer vacation before and while attending college. Question 6 reflects in descending order his period of employment history: (7) 1999/06/25 to 1999/08/31; (6) 1999/08/31 to 2000/06/01 (unemployed); (5) 2000/06/01 to 2000/08/20; (4) 2002/05/31 to 2002/08/21; (3) 2003/05/01 until 2003/8/29; (2) 2000/09/01 to 2004/05/31; (1) lists employment from 2000/06/01 to present. Appellant states in his answer that he began working for his present employer after he graduated in June 2004. I find his entry made in (1) is incorrect and should state his employment began in June 2004, which is consistent with the other dates provided. I also find this mistake was not intentional.
4. Answer to the FORM. SOR ¶ 2.a alleges Applicant was awarded forty hours of community service and placed on probation for two years. Applicant denied this part of the allegation. Applicant provided documentary corroboration that his sentence did not include community service and his probation was for one year. Item 4 contradicts this information and was the matter referred to in the Procedural Issues of this decision. Item 4 was not admitted and considered, but was used in my ruling stated above.
5. Additional Response.
6. ISCR Case No. 96-0277 at 2 (App. Bd. Jul. 11, 1997).
7. ISCR Case No. 97-0016 at 3 (App. Bd. Dec. 31, 1997); Directive, Enclosure 3, ¶ E3.1.14.
8. Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).
9. ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995); Directive, Enclosure 3, ¶ E3.1.15.
10. ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995); Directive, Enclosure 3, ¶ E3.1.15.
11. Egan, 484 U.S. at 531.
12. Id.
13. Id.; Directive, Enclosure 2, ¶ E2.2.2.
14. Executive Order 10865 § 7.
15. E2.A8.1.1.2.1 defines drug abuse as "the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.