1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of ) ) --------------- ) CAC Case No. 16-00429 ) Applicant for CAC Eligibility ) Appearances For Government: Eric Borgstrom, Esquire For Applicant: Pro se ______________ Decision ______________ MARSHALL, Jr., Arthur E., Administrative Judge: Applicant failed to mitigate Common Access Card (CAC) credentialing concerns raised under the criminal or dishonest conduct standards, but did mitigate concerns related to material, intentional false statements, deception, or fraud standards. CAC eligibility is denied. Statement of the Case On April 13, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing criminal or dishonest conduct eligibility concerns, as well as eligibility concerns related to material, intentional false statement, deception or fraud. The DOD was unable to find that granting Applicant CAC eligibility did not pose an acceptable risk. The action was taken under Homeland Security Presidential Directive – 12 (HSPD-12); Policy for a Common Identification Standard for Federal Employees and Contractors, dated August 27, 2004 the Adjudicative Standards found in DOD Instruction (DODI) 5200.46, DOD Investigative and Adjudicative Guidelines for Issuing the CAC, 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). 2 Applicant responded to the SOR on April 30, 2016, and requested a hearing before an administrative judge. The case was assigned to me on October 24, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on October 27, 2016, scheduling the hearing for November 16, 2016. The hearing was convened as scheduled. Government Exhibits (GE) 1 and 8 were admitted into evidence without objection. Applicant testified and submitted Applicant’s Exhibit (AE) A through C without objection. The record was held open until December 16, 2016, for additional information. DOHA received the hearing transcript (Tr.) on November 23, 2016. On December 12, 2016, an additional document was received from Applicant and accepted into the record without objection as AE D. The record was then closed. Findings of Fact Applicant is a 53-year-old man who has worked for the same defense contractor for a decade. He has worked as a sandblaster for the past three years, having worked his way up from positions as an auto mechanic and auto prepper. He has a tenth-grade education. Divorced, he has three children, ranging in age from 18 to 35. In 1993, Applicant was arrested, charged, and convicted of driving under the influence (DUI), a misdemeanor. He was sentenced to confinement for a period of one to 23 months. He believes he served about one month in prison. (Tr. 19) In 2005, he was arrested, charged, and convicted of DUI and escape. He was sentenced to confinement for a period of five months to five years, and to probation for two years. About three months later, he was arrested, charged, and convicted of DUI, and sentenced to confinement for two months and 28 days to six months. Applicant denied having been arrested and charged in about April 2008 with simple assault and misdemeanor harassment, and being convicted and sentenced to probation for a period of two months and 25 days to one year and 11 months. In making his denial, he showed the charges were withdrawn and the case dismissed. (Tr. 31; Ex. 6) In around August 2009, Applicant was arrested, charged, and convicted of simple assault, a misdemeanor, and sentenced to probation for a period of 28 days to one year and 11 months. He served three months in jail. (Tr. 32) While he admits that around January 2012 he was arrested and charged with contempt for violation of a protective order, a misdemeanor, Applicant asserts the case was dismissed. Applicant also admits that in about February 2015, he was arrested and charged with two counts of simple assault and harassment, a misdemeanor, but that he was ultimately convicted of a lesser charge, disorderly conduct. (Tr. 41; Ex. D) This was the result of a domestic argument. He had called the police when, during an argument with an intoxicated lady friend, her son arrived and “there was a battle.” (Tr. 39-40) In addition, although not alleged in the SOR as it occurred after the SOR was issued, Applicant was cited for DUI twice in the same day in June 2016. It was a difficult time, during which a friend was dying, another was in need of physical and spiritual 3 help, and his lady friend was having problems. The first DUI instance was when Applicant was pulled over on his way home by an officer. Because he was close to home, the policeman let him continue into his house on his promise to turn himself in at the police station the next day. The second arrest occurred a few hours later, when he drove to turn himself in while unknowingly still legally impaired. Ultimately, he was convicted of one DUI offense and one charge of reckless driving. (Tr. 46-48) He received six months probation for the DUI and one year of probation for the reckless driving charge. He will continue on probation through August 2017. (Tr. 48) He does not associate with friends who drink. (Tr. 62) Applicant recently completed alcohol treatment. (Tr. 49) He recognizes that alcohol has played a part in most of the criminal conduct noted. He relies on his faith to help him maintain sobriety going forward. He has never let alcohol adversely impact his employment or work quality. He deeply regrets how alcohol has affected his life and how he has let his emotions go unchecked. With treatment, maturity, and faith he hopes to face things better in the future. On March 19, 2015, Applicant signed a Declaration for Federal Employment form (306). He falsified material facts when he denied currently being under charges for any violations of the law (item 11) and when he denied having been convicted, imprisoned, on probation, or on parole in the preceding seven years (item 9). With regard to the latter question, Applicant wrote: “No charges have occurred since [the 2009] incident and record has been clean.” Regarding the 2012 violation of a protective order charge, Applicant had no clear memory of the incident as having been as recent as 2012. (Tr. 56) However, he had double-checked with the court and confirmed the charge had been dismissed. Therefore, it seemed logical to him to not raise that incident on the form. (Tr. 56) He did not mention the then-pending 2015 incident involving his lady friend and her son because he did not feel he was guilty. Because he felt that way, he “decided to put no,” noting “I guess I didn’t really understand the question.” (Tr. 57-58) He was unsure how to answer some of the questions and he had no assistance completing the form. Applicant’s supervisor noted that Applicant has an exemplary work ethic. He is always precise and contributes as a team member. (AE. A) Another supervisor and peer described that Applicant is a dedicated, reliable worker who never says no, does outstanding work, and takes pride in supporting the “War Fighter.” (AX. B) A third supervisor wrote that Applicant has a good safety record and does quality work. He also described Applicant as respectful and devoid of behavioral issues at work. (AX. C) 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 issues raised are listed in DODI 5200.46, Enclosure 4, Appendix 1, Basic Adjudicative 4 Standards, and Appendix 2, Supplemental Adjudicative Standards. The overriding factor for all of these conditions is unacceptable risk. 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, ¶ 1) Analysis Criminal or Dishonest Conduct DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2 provides: 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: a. 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, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2.b lists several conditions that could raise a CAC concern and may be disqualifying. The following are potentially applicable in this case: (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; and 5 (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. Applicant was a man of mature years during all the incidents at issue in the SOR, from 1993 through 2015. Almost half involved alcohol, an issue for which he has only recently sought treatment after his 2016 DUI arrests. Also at issue is a charge of contempt for violation of a protective order, and multiple arrests for the crime of assault. Although his criminal conduct and general misbehavior has not compromised his work to date, this pattern of misconduct reflects questionable judgment and either an inability or unwillingness to comply with rules and regulations. In turn, this raises questions about whether his reliability or trustworthiness may put people, property, or information systems at risk. Applicant’s criminal history is sufficient to establish disqualifying conditions 1, 2, and 5. DODI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, ¶ 2.c lists circumstances relevant to the determination of whether there is a reasonable basis to believe there is an unacceptable risk. The following may be relevant: (1) The behavior happened so long ago, was minor in nature, or happened under such unusual circumstances that it is unlikely to recur; 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. Applicant’s contrition is genuine. He is well regarded at work and has a good safety record. He is enthusiastic about his work and clearly dedicated to his present job. His religious faith gives him strength to face obstacles and maintaining sobriety. However, not counting the 2016 DUIs he detailed during the hearing that occurred after the issuance of the April 2016 SOR, Applicant was twice arrested and charged in the preceding five years. These occasions are not particularly worrisome by themselves. They do however, revive concerns related to Applicant’s past misconduct and bring them forward into the present. While he is on the right course, more time or more documentation of rehabilitative efforts is needed to address concerns. At present, only the fourth mitigating condition applies, albeit in part. Material, Intentional False Statement, Deception, or Fraud In addition, overall CAC eligibility concerns are raised under DoDI 5200.46, Appendix 2 to Enclosure 4, Supplemental Adjudicative Standards, paragraph 3: 6 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. a. 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. b. Therefore, the conditions that may be disqualifying include 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). c. Circumstances relevant to a determination of whether there is a reasonable basis to believe there is an unacceptable security risk include: (1) The misstated or omitted information was so long ago, was minor, or happened under such unusual circumstances it is unlikely to recur. (2) The misstatement or omission was unintentional or inadvertent and was followed by a prompt, good-faith effort to correct the situation. Applicant admits that he did not list that he was arrested and charged with contempt for violating a protective order because, to his thinking, the ultimate dismissal of the case obviated the need to report the arrest and charge. He is also somewhat vague as to when this incident actually occurred. In addition, Applicant admits that he did not list that he was arrested and charged with two counts of simple assault and harassment in 2015 because the case was still pending. He appears to have believed a full conviction was needed to prompt disclosure. To date, Applicant still seems confused by the issue. Given his overall testimony, education, experience, and consistent statements, I find his explanation credible. Regardless, Applicant provided sufficient information to put the Government on notice about his criminal record with such arrests and charges. Applicant mitigated concerns regarding this conduct. 7 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 or Financial Irresponsibility: AGAINST APPLICANT Subparagraphs 1.a-1.g: Against Applicant Paragraph 2, Material, Intentional False Statement, Deception or Fraud: FOR APPLICANT Subparagraphs 2.a-2.c: For Applicant Conclusion 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 Applicant CAC eligibility. CAC eligibility is denied. _____________________________ Arthur E. Marshall, Jr. Administrative Judge