DATE: February 26, 2007
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SSN: ----------------------
Applicant for Security Clearance
ISCR Case No. 05-17117
DECISION OF ADMINISTRATIVE JUDGE
MARY E. HENRY
APPEARANCES
FOR GOVERNMENT
Eric Borgstrom, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
In December 2002, at age 46, Applicant started using cocaine. The police arrested him in February 2004 for driving under the influence (DUI) and possession of a controlled substance, his first arrest. The court dismissed the drug charges, convicted him of DUI, and sentenced him as a first time offender. He has mitigated the government's security concerns about his drug involvement and criminal conduct. He, however, has not mitigated the government's security concerns about his personal conduct because he intentionally falsified his re-submitted security clearance application to reflect his drug usage and arrest. Clearance is denied.
On March 30, 2006, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended, and Department of Defense Directive 5220.6, Defense Industrial Security Clearance Review Program (Directive), dated January 2, 1992, as amended. 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. Specifically, the SOR set forth security concerns arising under Guideline J (Criminal Conduct), Guideline H (Drug Involvement), and Guideline E (Personal Conduct) of the Directive. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. On April 12, 2006, Applicant submitted a notarized response to the allegations. He elected to have his case decided on the written record in lieu of a hearing.
Department Counsel prepared a File of Relevant Material (FORM) and mailed a complete copy of it to Applicant on November 13, 2006, which he received on November 17, 2006. Applicant had 30 days from receipt of the FORM to file objections and submit material in refutation, extenuation, or mitigation. He did not submit a response or additional evidence. This case was assigned to me on January 30, 2007.
PROCEDURAL ISSUES
Department Counsel submitted Item 5, Personal Subject Interview, Report of Investigation, Office of Personnel Management (OPM), dated July 12, 2005, as part of his documentary evidence to support allegations 3.a-3.c 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. (1) 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, and 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 a decision on the written record. 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 without the inclusion of the public record documents related to the issues raise in this case and referenced in it. (2) I will not consider Item 5 under the legal analysis discussed above and due to its unreliability, in the interest of fairness.
Applicant admitted the allegations under Guideline J, subparagraph 1.a., and Guideline H, subparagraphs 2.a. and 2.b. of the SOR. (3) Those admissions are incorporated as findings of fact. He denied the remaining allegations. After a complete review of the evidence in the record and upon due consideration, I make the following findings of fact.
Applicant is a 50-year-old engineering operations coordinator for a defense contractor. He has worked for this contractor for 27 years. He completed a security clearance application (SF 86) initially in May 2002 and resubmitted it in December 2004. (4)
Applicant has a bachelor of science degree in business administration. He married his wife 22 years ago. He has no financial problems. (5)
On May 6, 2002, Applicant completed and submitted an SF-86. (6) His security office lost his initial application and twice more asked him to resubmit it. He last submitted this same security application on December 2, 2004. (7)
Between December 2002, when he was 46 years old, and February 2004, Applicant used cocaine on various occasions. He also purchased cocaine for his use. The police arrested applicant for the first time on February 1, 2004 and charged him with DUI and possession of a controlled substance. The court dismissed the drug charge and found Applicant guilty of DUI. The court sentenced him to 30 days in jail, which was suspended, fined him, and placed him on probation. Neither the police arrest report nor the court records regarding his conviction are in the record. (8)
When his security officer again requested his application in November 2004, Applicant asked the security officer if he should update his application. The security officer responded that he was merely replacing the lost file copy. (9) Applicant made no changes in his responses, even though he had been arrested and charged with a crime subsequent to completing his security application in May 2002. He resigned his application on December 2, 2004, indicating that the information contained and statements made in the document were true and correct to the best of his knowledge and made in good faith. (10)
In his initial submission and his final submission of his application, Applicant answered "no" to the following questions: (11)
Question 21. Your Police Record - Felony Offenses
Have you ever been charged with or convicted of any felony offense? (Include those under the Uniform Code of Military Justices) For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 OR 18 U.S.C. 3607.
Question 24. Your Police Record - Alcohol/Drug Offenses
Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs? For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 OR 18 U.S.C. 3607.
Question 27. Your Use of Illegal Drugs and Drug Activity - Illegal Use of Drugs
Since the age of 16 or in the last 7 years, which ever is shorter, have you illegally used any controlled substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.) amphetamines, depressants (barbiturates, methaqualone, tranquilizers, etc), hallucinogenics (LSD, PCP, etc.), or prescription drugs?
Applicant denies that he intentionally falsified his answers to these questions. He states that he merely resubmitted his May 2002 application, as requested. He would have updated his responses had his security officer asked him to do so. (12)
Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. 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 Paragraph E2.2., Enclosure 2 of the Directive, are intended to assist the administrative judge in reaching fair and impartial common sense decisions.
Included in the guidelines are disqualifying conditions and mitigating conditions applicable to each specific guideline. 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. In addition, each security clearance decision must be based on the relevant and material facts and circumstances, the whole-person concept, and the factors listed in the Directive. Specifically, these are: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (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 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. (13)
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. (14) The government has the burden of proving controverted facts. (15) The burden of proof is something less than a preponderance of the evidence. (16) Once the government has met its burden, the burden shifts to the applicant to present evidence of refutation, extenuation, or mitigation to overcome the case against him. (17) Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. (18)
No one has a right to a security clearance, (19) and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." (20) Any reasonable doubt about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such sensitive information. (21) 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." The decision to deny an individual a security clearance is not necessarily a determination as to the allegiance, loyalty, and patriotism of an applicant. (22) 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 a consideration of the evidence as a whole, I find the following adjudicative guidelines 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.
Drug Involvement - Guideline H: 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.
Personal Conduct - Guideline E: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulation could indicate that the person may not properly safeguard classified information.
Upon consideration of all the facts in evidence, and after application of all appropriate adjudicative factors, I conclude the following with respect to the allegations set forth in the SOR:
Criminal Conduct
The government has established its case under Guideline J. Criminal Conduct Disqualifying Condition (CC DC) E2.A10.1.2.1 (Allegation or admission of criminal misconduct, regardless of whether the person was formally charged) and CC DC E2.A10.1.2.2 (A single serious crime or multiple lesser offenses) apply. In 2004, Applicant was arrested and charged with possession of an illegal substance, cocaine, and DUI. The court found him guilty of DUI and dismissed the drug charge.
I considered all the Criminal Conduct Mitigating Conditions (CC MC). I conclude that CC MC E2.A10.1.3.1 (The criminal behavior was not recent); and CC MC E2.A10.1.3.2 (The crime was an isolated incident) apply. Applicant's arrest and subsequent guilty determination occurred almost three years ago. This arrest was his first and only arrest for any criminal conduct.
Drug Involvement
The government has established its case under Guideline H. Drug Involvement Disqualifying Condition (DI DC) E2.A8.1.2.1 (Any drug abuse...), (23) and DI DC E2.A8.1.2.2 (Illegal drug possession, including cultivation, processing, manufacture, purchase sale, or distribution), apply. At the age of 46, Applicant decided to use cocaine, an illegal drug under the Controlled Substances Act of 1970. To use this drug, he had to possess it. He also purchased it for his own use. He used cocaine on various occasions over a 15 month period of time.
I considered all the Drug Involvement Mitigating Conditions (DI MC). I conclude that DI MC E2.A8.1.3.1 (The drug involvement was not recent) applies. (24) There is no evidence of cocaine use by Applicant after his arrest almost three years ago.
Personal Conduct
Under Guideline E, the government established that Applicant omitted material facts from his SF-86 when he answered Questions 1, 24, and 27. He denies, however, that he deliberately falsified his answers to these questions, arguing that his signed 2004 SF-86 is merely a re-submission of the SF-86 submitted on May 6, 2002. When a falsification allegation is controverted, the government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant's intent or state of mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant's intent or state of mind at the time the omission occurred. (25) For Personal Conduct Disqualifying Conditions (PC DC) E2.A5.1.2.2 (The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . .) to apply, the government must establish that Applicant's omission, concealment or falsification in his answers was deliberate.
When Applicant resubmitted his SF-86 in December 2004, he asked if he should submit a new form. His security officer said no. Applicant knew at this time that he had been arrested for DUI and drug possession 10 months earlier. He knew that he had been using cocaine. He also knew that he had been convicted of DUI, shortly after his arrest. Because he knew that these events had occurred after he submitted his SF-86 in May 2002, he had an obligation to carefully review and revise his December 2004 submission. He was fully aware that any revision to his security application may negatively impact the granting of a clearance to him. I find that Applicant intentionally failed to change his original SF-86 submission, and that in doing so, he intentionally falsified his answers to the December 2004 SF-86. I have considered the Personal Conduct Mitigating Conditions and find that none apply.
Whole Person Analysis
Protection of our national security is of paramount concern. Security clearance decisions are not intended to assign guilt or to impose further punishment for past transgressions. Rather, the objective of the adjudicative process is the fair-minded, commonsense assessment of a person's trustworthiness and fitness for access to classified information. Thus, in reaching this decision, I have considered the whole person concept in evaluating Appellant's risk and vulnerability in protecting our national interests.
Applicant's decision to use cocaine at age 46 after applying for a security clearance raises serious concerns about his judgment. He knew cocaine was illegal when he started using it. He knew the personal and criminal risks associated with using this drug, and he still chose to use it and buy it. His criminal arrest record indicates that his February 2004 arrest is his only arrest. While the court convicted him of DUI and gave him a sentenced appropriate to a first time offender, it dropped the drug possession charge. He completed the terms of his sentence and there is no evidence of cocaine use since his arrest. In weighing these facts, he is unlikely to be coerced, pressured, or exploited because of this conduct. In addition, there it little likelihood that he will be arrested on drug charges or for DUI given his overall lack of a significant criminal record. Applicant has mitigated the government's security concerns about his drug use and criminal conduct.
Applicant's decision not to truthfully answer the questions on his SF-86 raises serious questions about his honesty and trustworthiness. He was fully aware that his cocaine use and arrest, which could impact his eligibility for clearance, had occurred subsequent to the filing of his SF-86 in May 2002. Rather than provide this negative information in a forthright way, he chose not to reveal it and to hide behind his security officer's statement that he need only resubmit the May 2002 SF-86. He had an obligation to advise the security officer about his arrest and subsequent conviction. He failed to meet his obligation and then lied about it. He has not mitigated the government's security concerns about his personal conduct. Accordingly, for the reasons stated, I find that it is not clearly consistent with the national interest to grant a security clearance to Applicant.
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:
SOR ¶ 1-Guideline J : FOR APPLICANT
Subparagraph a: For Applicant
SOR ¶ 2-Guideline H: FOR Applicant
Subparagraph a-b: For Applicant
SOR ¶ 3-Guideline E: AGAINST Applicant
Subparagraph a-c: Against Applicant
In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant a security clearance for Applicant. Clearance is denied.
1. FORM, see footnote 1.
2. The relevant police arrest record and court case disposition record are not in this case file.
3. Item 2 (Applicant's response to the SOR, dated April 12, 2006) at 2.
4. Id. at 2 and enclosure 1; Item 3 (Applicant's security application, dated December 2, 2004) at 1.
5. Item 3, supra note 4, at 1, 2, 6.
6. Item 2, supra note 3, at 4-5, 15amd enclosure 1.
7. Id., enclosure 2, at 16, 18, 27; Item 3, supra note 4, at 1, 8, 9, 11.
8. Item 2, supra note 3, at 1; Item 4 (United States Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division criminal records report, dated January 7, 2005) at 1-2.
9. Item 2, supra note 3, at 2.
10. Item 3, supra note 4, at 1, 8.
11. Id. at 4-5.
12. Item 2, supra note 3, at 3.
13. Directive, Enclosure 2, ¶ E2.2.1.1. through E2.2.1.9.
14. ISCR Case No. 96-0277 at 2 (App. Bd., July 11, 1997).
15. ISCR Case No. 97-0016 at 3 (App. Bd., December 31, 1997); Directive, Enclosure 3, ¶ E3.1.14.
16. Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).
17. ISCR Case No. 94-1075 at 3-4 (App. Bd., August 10, 1995); Directive, Enclosure 3, ¶ E3.1.15.
18. ISCR Case No. 93-1390 at 7-8 (App. Bd. Decision and Reversal Order, January 27, 1995); Directive, Enclosure 3, ¶ E3.1.15.
19. Egan, 484 U.S. at 531.
20. Id.
21. Id.; Directive, Enclosure 2, ¶ E2.2.2.
22. Executive Order No. 10865 § 7.
23. Drug abuse is defined in E2.A8.1.1.2.1 to include drugs materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970)
24. DI MC E2.A8.1.3.2 (The drug involvement was an isolated or aberrational event), DI MC E2.A8.1.3.3 (A demonstrated intent not to abuse any drugs in the future), and DI MC E2.A8.1.3.4 (Satisfactory completion of a prescribed drug treatment program including rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a credential medical professional) do not apply because no information was provided indicating that Applicant had attended a drug treatment program. He has not stated that he does not intend to use cocaine in the future, and he used cocaine on a number of occasions between 2002 and 2004.
25. See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004)).