1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) CAC Case No. 16-00428 ) Applicant for Common Access Credentialing ) Appearances For Government: Robert Kilmartin, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ TUIDER, Robert J., Administrative Judge: Applicant mitigated Common Access Card (CAC) credentialing concerns raised under criminal or dishonest conduct; and material, intentional false statement, deception, or fraud under supplemental adjudicative standards. CAC eligibility is granted. Statement of the Case On March 18, 2014, Applicant submitted a Questionnaire for non-sensitive positions (SF-85). On April 13, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing eligibility concerns for Common Access Credential eligibility pursuant to Homeland Security Presidential Directive – 12 (HSPD-12). DOD was unable to find that it was clearly consistent with the national interest to grant Applicant CAC eligibility. The action is based on the Supplemental Adjudicative Standards found in DoD Instruction 5200.46, DOD Investigative and Adjudicative Guidelines for Issuing the Common Access Card, dated September 9, 2014, and the procedures set out in Enclosure 3 of DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). The concerns raised 2 under the Supplemental Adjudicative Standards of DODI 5200.46 are criminal or dishonest conduct; and material, intentional false statement, deception, or fraud. On April 25, 2016, Applicant answered the SOR and requested a hearing before a Defense Office of Hearings and Appeals (DOHA) administrative judge. On August 12, 2016, Department Counsel was ready to proceed. On September 26, 2016, DOHA assigned the case to me. On November 7, 2016, DOHA issued a notice of hearing scheduling the case for November 16, 2016. The hearing was held as scheduled. Department Counsel offered Government Exhibits (GE) 1 through 5, which were received without objection. Applicant testified and offered Applicant Exhibits (AE) A through H, which were received without objection. On November 28, 2016, DOHA received the hearing transcript (Tr.). Findings of Fact Applicant admitted all of the SOR allegations with explanations. His SOR answers are incorporated in my findings of fact. Background Information Applicant is a 59-year-old regional operations manager employed by a defense contractor since June 2010. He previously held CAC eligibility for five-and-a-half years without incident and seeks to reinstate his CAC eligibility. (GE 1; Tr. 13-16) Applicant received his GED in May 1975. He served in the U.S. Navy briefly from April 1976 to May 1976, and was medically discharged. Applicant was previously married during the approximate timeframe of 1982 to 2002, and that marriage ended by divorce. He remarried in August 2005. Applicant has three adult sons from his first marriage. (Tr. 17-23) Criminal or Dishonest Conduct or Financial Irresponsibility CAC credentialing concerns were identified during Applicant’s background investigation as a result of a nine arrests spanning a 22-year period. Summarized, those arrests are: (1) January 1977 – arrested and charged with automobile burglary; (2) March 1977 – arrested and charged with driving under the influence (DUI); (3) January 1978 – arrested and charged with fraud – writing checks with insufficient funds; (4) February 1978 – arrested and charged with fraud – writing checks with insufficient funds; (5) March 1979 – arrested and charged with violation of the uniform controlled substances act; (6) April 1980 – arrested and charged with DUI; (7) April 1983 – arrested and charged with assault; (8) September 2003 – arrested and charged with domestic violence, resisting arrest, and two counts of reckless endangerment. At the time Applicant was arrested, he was sitting on his front porch with a weapon threatening suicide. Pursuant to his guilty plea, Applicant was convicted of two counts of reckless endangerment and sentenced to 365 day confinement, suspended and two years of supervised probation; and (9) June 2009 – arrested and charged with domestic assault. 3 Applicant was placed on probation and ordered to attend an anger management program. Applicant has completed all requirements of his probation. (SOR ¶¶ 1.a - 1.h; Tr. 23-44; GE 2-5) The allegations were substantiated through Applicant’s admissions, testimony, and evidence presented. Only his 2003 arrest and charges lead to a conviction as a result of him pleading guilty to two counts of reckless endangerment. (SOR answer; Tr. 23-44; GE 2-5) Material, Intentional Falsification, Deception, or Fraud When Applicant completed his SF-85 in March 2014, he answered “no” to the question that asked whether he had been placed on probation during the last seven years, among other things. (SOR ¶ 2.a) Because of Applicant’s June 2009 arrest, charge, and subsequent disposition, he would have been required to answer “yes.” Applicant testified that he answered, “no” because “the judge told me this case was going to be expunged, and I took [him at his] word,” and he believed that he answered the question correctly. He now recognizes that his answer was not correct. Applicant credibly stated that he was not deliberately trying to deceive anyone. Following completion of his SF-85, an Office of Personnel Management (OPM) investigator interviewed Applicant. During that interview, he was completely forthcoming about his history of arrests. (Tr. 45-47) Character Evidence Applicant pointed out that the majority of his arrests occurred in the “70’s or 80’s” when he was younger. He acknowledged the mistakes he made in his life and did not try to minimize them. With professional help coupled with maturity, Applicant made life changes and has not had any missteps since the 2009 incident. He added that he has a “wonderful wife,” and takes great satisfaction in the work he does in support of the DOD mission. Applicant has established an excellent work record with his DOD contract employer over the past seven years and submitted documentation of same. (Tr. 47-49, 56-59) To substantiate his life changes, Applicant submitted eight reference letters that describe his job performance, work ethic, and character. These letters include a range of individuals such as company senior supervisory personnel, co-workers, subordinates, and former employers. The collective sense of these letters describe Applicant as an individual who has turned his life around and is hardworking, honest, trustworthy, and reliable. In short, Applicant’s reference letters strongly support the notion that he has put his past bad behavior behind him and is making a positive contribution to society. His character evidence supports continuation of his CAC credentials. (Tr. 49-56; AE A-H) Policies Every CAC eligibility decision must be a fair and impartial overall commonsense decision based on all available evidence, both favorable and unfavorable. The specific 4 issues raised are listed in DoDI 5200.46, Enclosure 4, Appendix 1, Basic Adjudicative Standards, and Appendix 2, Supplemental Adjudicative Standards. The overriding factor for all of these conditions is unacceptable risk. The decision must be arrived at by applying the standard that the grant of CAC eligibility is clearly consistent with the national interest. The objective of CAC credentialing process is the fair-minded commonsense assessment of a person’s life to make an affirmative determination that the person is an acceptable risk to have CAC eligibility. Each case must be judged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain CAC eligibility. Factors to be applied consistently to all information available include: (1) the nature and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the recency and frequency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) contributing external conditions; and (6) the absence or presence of efforts towards rehabilitation. (DoDI 5200.46, Enclosure 4, paragraph 1) In all adjudications, the protection of the national interest is the paramount consideration. Therefore, any doubt concerning personnel being considered for CAC eligibility should be resolved in favor of the national interest. Analysis Criminal or Dishonest Conduct DODI 5200.46, App. 2 to Encl. 4, SAS ¶ 2 describes the concern: A CAC will not be issued to a person if there is a reasonable basis to believe, based on the individual’s criminal or dishonest conduct, that issuance of a CAC poses an unacceptable risk. An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk. DODI 5200.46, App. 2 to Encl. 4, SAS ¶ 2b, lists seven conditions that raise a concern and may be disqualifying: 5 (1) A single serious crime or multiple lesser offenses which put the safety of people at risk or threaten the protection of property or information. A person’s convictions for burglary may indicate that granting a CAC poses an unacceptable risk to the U.S. Government’s physical assets and to employees’ personal property on a U.S. Government facility; (2) Charges or admission of criminal conduct relating to the safety of people and proper protection of property or information systems, regardless of whether the person was formally charged, formally prosecuted, or convicted; (3) Dishonest acts (e.g., theft, accepting bribes, falsifying claims, perjury, forgery, or attempting to obtain identity documentation without proper authorization); (4) Deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, or other intentional financial breaches of trust; (5) Actions involving violence or sexual behavior of a criminal nature that poses an unacceptable risk if access is granted to federally-controlled facilities and federally-controlled information systems. For example, convictions for sexual assault may indicate that granting a CAC poses an unacceptable risk to the life and safety of persons on U.S. Government facilities; (6) Financial irresponsibility may raise questions about the individual’s honesty and put people, property or information systems at risk, although financial debt should not in and of itself be cause for denial; and (7) Deliberate omission, concealment, or falsification of relevant facts or deliberately providing false or misleading information to an employer, investigator, security official, competent medical authority, or other official U.S. Government representative, particularly when doing so results in personal benefit or which results in a risk to the safety of people and proper safeguarding of property and information systems. Over a 22-year period from 1977 to 2009, Applicant was arrested and charged with nine various non-felony crimes. However, only his 2003 arrest lead to a conviction of two counts of endangerment as a result of him pleading guilty. These arrests and charges warrant application of SAS ¶¶ 4b(1), 4b(2), 4b(4), and 4b(5). DODI 5200.46, App. 2 to Encl. 4, SAS 2c, lists four conditions that could mitigate concerns about “whether there is a reasonable basis to believe there is an unacceptable risk”: 6 (1) The behavior happened so long ago, was minor in nature, or happened under such unusual circumstances that it is unlikely to recur; (2) Charges were dismissed or evidence was provided that the person did not commit the offense and details and reasons support his or her innocence; (3) Improper or inadequate advice from authorized personnel or legal counsel significantly contributed to the individual’s omission of information. When confronted, the individual provided an accurate explanation and made prompt, good-faith effort to correct the situation; and (4) Evidence has been supplied of successful rehabilitation, including but not limited to remorse or restitution, job training or higher education, good employment record, constructive community involvement, or passage of time without recurrence. This is primarily a case of redemption and rehabilitation. There is no question that Applicant engaged in an unacceptable pattern of behavior spanning a 22-year period. More importantly, he has recognized that his past behavior is unacceptable, and has made a concerted effort to do better. Applicant has not had any reported incidents for eight years, has remarried and is in a stable marriage, and is well respected by his superiors, co-workers, and within his community. In addition to the persuasive reference letters that Applicant submitted, he appeared sincere and contrite at his hearing. SAS ¶¶ 2c(1) and 2c(4) fully apply. Concerns about criminal or dishonest conduct are mitigated. Material, Intentional Falsification, Deception, or Fraud DODI 5200.46, App. 2 to Encl. 4, SAS, ¶ 3 articulates the CAC concern: A CAC will not be issued to a person if there is a reasonable basis to believe, based on the individual’s material, intentional false statement, deception, or fraud in connection with federal or contract employment, that issuance of a CAC poses an unacceptable risk. The individual’s conduct involving questionable judgment, lack of candor, or unwillingness to comply with rules and regulations can raise questions about an individual’s honesty, reliability, trustworthiness, and put people, property, or information systems at risk. DODI 5200.46, App. 2 to Encl. 4, SAS, ¶ 3b indicates a condition that “may be disqualifying include[s] material, intentional falsification, deception or fraud related to answers or information provided during the employment process for the current or a prior federal or contract employment (e.g., on the employment application or other employment, appointment or investigative documents, or during interviews.).” 7 After reviewing the transcript and exhibits, the evidence did not establish that Applicant deliberately falsified his SF-85. Applicant credibly testified that he did not intentionally leave out his 2009 probationary period and the evidence corroborates his claim that he promptly corrected his inadvertent omission on his SF-85 during his OPM interview. DODI 5200.46, App. 2 to Encl. 4, SAS ¶ 3c, lists two circumstances relevant to the determination of whether there is a reasonable basis to believe there is an unacceptable risk: (1) The misstated or omitted information was so long ago, was minor, or happened under such unusual circumstances that it is unlikely to recur; and (2) The misstatement or omission was unintentional or inadvertent and was followed by a prompt, good-faith effort to correct the situation. Applicant did not intentionally provide false information on his SF-85. SAS ¶¶ 3c(2) fully applies. Concerns about material, intentionally falsification, deception, or fraud are mitigated. Applicant expressed sincere remorse for his actions and it is evident that this process has impacted him. He has made lifestyle changes indicative of a productive and responsible citizen. Applicant’s employer considers him a loyal, productive, and trustworthy employee. Having carefully considered the facts of this case, I find ¶¶ 1.b. (1) through (4) and (6)(a) and 6(b) of the credentialing standards are applicable. For these reasons, I conclude Applicant’s request for CAC eligibility should be granted. 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, Criminal or Dishonest Conduct: FOR APPLICANT Subparagraphs 1.a – 1.i: For Applicant Paragraph 2, Material, Intentional False Statement, Deception, or Fraud: FOR APPLICANT Subparagraph 2.a: For Applicant 8 Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant CAC eligibility. CAC eligibility is granted. __________________________ ROBERT J. TUIDER Administrative Judge