1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) CAC Case No. 16-00433 ) Applicant for CAC Eligibility ) Appearances For Government: Charles C. Hale Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ CERVI, Gregg A., Administrative Judge: Applicant refuted Common Access Card (CAC) credentialing concerns raised under supplemental adjudicative standards (SAS) for criminal or dishonest conduct; misconduct or negligence in employment; and material, intentional false statement, deception, or fraud. CAC eligibility is granted. Statement of the Case On May 16, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing credentialing concerns for CAC eligibility pursuant to Homeland Security Presidential Directive – 12 (HSPD-12). The DOD was unable to find that granting Applicant CAC eligibility did not pose an unacceptable risk.1 The concerns raised under the Adjudicative Standards of DODI 5200.46 are SAS paragraph 2.a, criminal or dishonest conduct; paragraph 1.a, misconduct or negligence in employment; and paragraph 3.a, material, intentional false statement, deception, or fraud. 1 The action was taken under 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 June 9, 2016, and requested a hearing before an administrative judge. The case was assigned to me on October 26, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December 13, 2016, scheduling the hearing for February 1, 2017. The hearing was convened as scheduled. Government Exhibits (GE) 1 through 4 were admitted in evidence without objection. Applicant testified, called a witness, and submitted Applicant’s Exhibits (AE) A and B, which were admitted without objection. DOHA received the hearing transcript (Tr.) on February 13, 2017. Findings of Fact Applicant is 40 years old. She has worked as an administrative assistant for her current employer since September 2015. She is unmarried and has two children. She has held a CAC card since September 2015. From 2003 to 2011, Applicant worked for a financial institution. In 2011, she was promoted to the position of Sales Associate II, and was expected to undertake additional responsibilities. At the same time, she had separated from the father of her children after living together for a lengthy period. She was distracted with additional child-care responsibilities and a custody dispute. She found herself with personal challenges and unclear how to perform all aspects of her job. She was also unable to comply with her required work hours because of her new responsibilities as a single parent without support from the father. She was terminated in 2011 for poor job performance without advanced notice or an opportunity for a rehabilitative performance plan. Due to an oversight and desire to ensure she explained a more serious and recent incident, she inadvertently failed to describe this termination on her Declaration of Federal Employment form, completed on August 27, 2015. From 2011 to 2015, Applicant was employed by a county administrative office as a document technician and notary. In May 2015, she was criminally charged with conspiracy to commit forgery in an issue or transfer; making or giving false or incomplete certificate, or authenticating documents in absence of principal; and willful neglect of duty. These charges resulted from Applicant notarizing a letter, presented to her by another employee that was signed by a family member that was not present to confirm the signature. Applicant mistakenly believed the notary rules allowed a family member to vouch for a signature of another family member, and notarized the document. The employee who presented the document to Applicant for notarization was allegedly charged with stealing personal identities and filing false tax returns or other claims. There was no evidence showing that Applicant knew of or was a party to a conspiracy, had criminal intent, or that she willfully neglected her duties as a notary. However, once she was advised of the notary rules, she admitted to notarizing the document in violation of the law. She agreed to a conditional plea of guilty to misdemeanor making or giving a false or incomplete certificate on authenticating documents in the absence of the principal. Upon the successful completion of six months of unsupervised probation, all charges were dismissed. As a result of the charges but before a final disposition, she voluntarily resigned from her position with the county in June 2016. 3 Applicant’s supervisor testified to her outstanding job performance, honesty, trustworthiness, and reliability. Applicant also submitted several letters of reference attesting to her reliability, honesty, and compassion for others. 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 Standards, and Appendix 2, Supplemental Adjudicative Standards. The overriding factor for all of these conditions is unacceptable risk. 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, ¶ 1) Analysis Criminal or Dishonest Conduct DODI 5200.46, Appendix 2 to Enclosure 4, SAS ¶ 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. SAS ¶ 2.b lists several conditions that could raise a CAC concern and may be disqualifying. The following are potentially applicable in this case: (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; 4 (3) Dishonest acts (e.g., theft, accepting bribes, falsifying claims, perjury, forgery, or attempting to obtain identity documentation without proper authorization); and (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. Applicant pleaded guilty to misdemeanor making or giving a false or incomplete certificate on authenticating documents in the absence of the principal. Upon the successful completion of six months of unsupervised probation, all charges were dismissed. There was no evidence that Applicant knew of or was a party to a conspiracy, had criminal intent, or that she willfully neglected her duties as a notary. She agreed to a conditional plea that resulted in dismissal of all charges. I am not convinced that she had the specific intent to violate the law. Rather, she was misinformed or not properly trained on the notary rules. The following mitigating circumstances apply: the behavior happened under such unusual circumstances that it is unlikely to recur; Applicant admitted to improperly certifying the document once she learned of her violation, and the charges were eventually dismissed; and Applicant has since successfully worked in a position of trust and responsibility with personal information. There is insufficient evidence that issuance of a CAC poses an unacceptable risk. Misconduct or Negligence in Employment DODI 5200.46, Appendix 2 to Enclosure 4, SAS ¶ 1 provides: a. An individual’s employment misconduct or negligence may put people, property, or information systems at risk. (1) A previous history of intentional wrongdoing on the job, disruptive, violent, or other acts that may pose an unacceptable risk to people, property, or information systems; (2) A pattern of dishonesty or rule violations in the workplace which put people, property or information at risk; and (5) Failure to comply with rules or regulations for the safeguarding of classified, sensitive, or other protected information. As a result of the 2015 charges described above, Applicant voluntarily resigned from her positon with the county, prior to a final disposition of her criminal case. The mitigating conditions described above apply equally to the allegation in SOR ¶ 2.a. In addition, she was terminated from a job in 2011 due to poor performance. This termination was performance related due to poor training, personal and childcare 5 difficulties, and does not invoke questionable employment conduct or negligence. SOR ¶ 2.b does not raise disqualifying conditions under HSPD-12 and there is insufficient evidence that issuance of a CAC poses an unacceptable risk. Material, Intentional Falsification, Deception or Fraud DODI 5200.46, Appendix 2 to Enclosure 4, SAS ¶ 3 provides: 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. Applicant completed a Declaration for Federal Employment form in August 2015, but failed to list her termination in 2011 for poor performance. She acknowledged this oversight in her answer to the SOR and testimony, and fully explained the circumstances surrounding her termination and completion of the form. She explained that she did not intentionally falsify the form, rather she was concerned with fully explaining the 2015 charges to the point that she forgot to include an explanation of the termination. I find no evidence of intentional falsification of the federal form, or sufficient evidence to question Applicant’s honesty, trustworthiness, reliability or information that she will put people, property or information systems at risk. I find insufficient evidence that issuance of a CAC poses an unacceptable risk. Whole-Person Assessment DODI 5200.46, Encl. 4, CAC Adjudicative Procedures, ¶ 1, Guidance For Applying Credentialing Standards During Adjudication provides the following mitigating factors: As established in Reference (g),2 credentialing adjudication considers whether or not an individual is eligible for long-term access to federally controlled facilities and/or information systems. The ultimate determination to authorize, deny, or revoke the CAC based on a credentialing determination of the PSI must be made after consideration of applicable credentialing standards in Reference (c).3 b. Each case is unique. Adjudicators must examine conditions that raise an adjudicative concern, the overriding factor for all of these conditions is 2 Reference (g) is HSPD – 12. 3 Reference (c) is U.S. Office of Personnel Management Memorandum, Final Credentialing Standards for Issuing Personal Identity Verification Cards under HSPD-12, July 31, 2008. 6 unacceptable risk. Factors to be applied consistently to all information available to the adjudicator are: (1) The nature and seriousness of the conduct. The more serious the conduct, the greater the potential for an adverse CAC determination. (2) The circumstances surrounding the conduct. Sufficient information concerning the circumstances of the conduct must be obtained to determine whether there is a reasonable basis to believe the conduct poses a risk to people, property, or information systems. (3) The recency and frequency of the conduct. More recent or more frequent conduct is of greater concern. (4) The individual’s age and maturity at the time of the conduct. Offenses committed as a minor are usually treated as less serious than the same offenses committed as an adult, unless the offense is very recent, part of a pattern, or particularly heinous. (5) Contributing external conditions. Economic and cultural conditions may be relevant to the determination of whether there is a reasonable basis to believe there is an unacceptable risk if the conditions are currently removed or countered (generally considered in cases with relatively minor issues). (6) The absence or presence of efforts toward rehabilitation, if relevant, to address conduct adverse to CAC determinations. (a) Clear, affirmative evidence of rehabilitation is required for a favorable adjudication (e.g., seeking assistance and following professional guidance, where appropriate; demonstrating positive changes in behavior and employment). (b) Rehabilitation may be a consideration for most conduct, not just alcohol and drug abuse. While formal counseling or treatment may be a consideration, other factors (such as the individual’s employment record) may also be indications of rehabilitation. Applicant is a 40-year-old administrative assistant employed by a defense contractor since October 2015. She is credited with being a good employee. She seeks continued CAC eligibility as a condition of her employment. Her supervisor and letters of reference describe her in favorable terms. I have carefully considered the facts of this case and applied the standards in DODI 5200.46. The conduct alleged in the SOR has been mitigated or is insufficient to raise disqualifying factors. There is sufficient evidence to fully resolve the CAC eligibility concerns. Applicant’s request for CAC eligibility is granted. 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: FOR APPLICANT Subparagraph 1.a: For Applicant Paragraph 2, Misconduct or Negligence in Employment: FOR APPLICANT Subparagraphs 2.a – 2.b: For Applicant Paragraph 3, Material, Intentional False Statement, Deception, or Fraud: FOR APPLICANT Subparagraph 3.a: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, granting Applicant CAC eligibility does not pose an unacceptable risk. CAC eligibility is granted. _______________________ Gregg A. Cervi Administrative Judge