ISCR Case No. 23-01243

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

______________ ______________ In the matter of: ) ) ) ISCR Case No. 23-01243 ) ) Applicant for Security Clearance ) Appearances For Government: Adrienne M. Driskill, Esq., Department Counsel For Applicant: Pro se 01/31/2024

CEFOLA, Richard A., Administrative Judge: Statement of the Case On October 18, 2023, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guideline E. (Personal Conduct). The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance. Applicant answered the SOR on October 18, 2023, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on October 23, 2023. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on October 23, 2023, scheduling the hearing for November 3, 2023. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 and 2, which were admitted into evidence. Applicant testified on his own behalf and called five witnesses. Applicant offered five documents, which I marked Applicant’s Exhibits (AppX) A through

E, and admitted into evidence. DOHA received the transcript of the hearing (TR) on November 15, 2023.

Applicant admitted, in part, and denied, in part, the allegation in SOR ¶ 1.a. He admitted opening the checking accounts in question for an acquaintance; but denied fraudulent behavior, as the acquaintance and his former spouse were divorced; and as such, no information was hidden during a pending divorce. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is a 34-year-old employee of a defense contractor. He is unmarried, and has no children. (TR at page 6 line 18 to page 7 line 4, and at page 26 line 13 to page 27 line 9.) Guideline E - Personal Conduct 1.a. Applicant has a “side job” as a tennis coach. He admits that in November of 2015, more than eight years ago when he was 26 years old, he was approached by the father of one his tennis students and asked for a personal favor. This father had just gone through a divorce; and as a result, was suffering some financial difficulties. He asked Applicant for a favor: to open a personal checking account and business checking account, on behalf of the father and the father’s business, respectively, which Applicant did. The father gave monies to Applicant to deposit in the personal account to cover the father’s monthly rent for a new apartment. Other than opening the business account, however, Applicant had little to do with its transactions. (TR at page 18 line 7 to page 26 line 9, at page 28 line 2 to page 53 line 20, GX 2 at page 8, and AppX A.) Applicant became suspicious of his conduct in continuing with these accounts, and sought out the advice of his own father, who testified at Applicant’s hearing, and who had pointed out the naivety of Applicant’s actions. (TR at page 66 line 23 to page 73 line 21.) In October of 2016, more than seven years ago, Applicant declined continuing the personal account, and ceased any association with the business account. (TR at page 18 line 7 to page 26 line 9, and at page 28 line 2 to page 53 line 20.)

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The

administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person who applies for national security eligibility seeks to enter into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order (EO) 10865 provides that adverse 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

Guideline E - Personal Conduct The security concern relating to the guideline for Personal Conduct is set out in AG ¶ 15: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The following will normally result in an unfavorable national security eligibility determination, security

clearance action, or cancellation of further processing for national security eligibility: (a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, cooperation with medical or psychological evaluation, or polygraph examination, if authorized and required; and (b) refusal to provide full, frank, and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination. The guideline notes several conditions that could raise security concerns under AG ¶ 16. One is potentially applicable in this case: (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of: (3) a pattern of dishonesty or rule violations. Applicant opened two checking accounts in his name on behalf of another, thereby circumventing the rules and regulations of the banking system. The evidence is sufficient to raise this disqualifying condition. AG ¶ 17 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 17 including: (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. Applicant’s conduct ceased more than seven ago, when he took action to discontinue the checking accounts on behalf of another.

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent 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. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guideline E in my whole-person analysis. Applicant has a distinguished history in the workplace (AppXs B~D), and is respected by his security manager and by two supervisors (TR at page 75 to page 93 line 16). He performs well at his job. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the Personal Conduct security concerns.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are: Paragraph 1, Guideline E: FOR APPLICANT Subparagraph 1.a: For Applicant

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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 national security eligibility. Eligibility for access to classified information is granted. Richard A. Cefola Administrative Judge