ISCR Case No. 06-08598.h1

DATE: December 13, 2007

) ) In re: ) ) ISCR Case No. 06-08598 ----------------------- ) SSN: ----------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE PAUL J. MASON

SYNOPSIS

Applicant’s three criminal offenses between December 1990 and June 2003 represent a pattern of criminal behavior that has not been mitigated. Applicant’s personal conduct set forth in subparagraphs 2.a. and 2.b. of the Statement of Reasons has not been mitigated either. Furthermore, Applicant’s explanations for the delay in reporting the June 2003 offense to his facility security officer are not reasonable or credible. Clearance is denied.

On April 17, 2007, the Defense Office of Hearings and Appeals (DOHA), pursuant to Department of Defense Directive 5220.6, dated January 2, 1992, as reissued through Change 4 thereto, dated April 20, 1999, and revised adjudicative guidelines (AG) dated September 1, 2006, issued a Statement of Reasons (SOR) to the Applicant which detailed reasons under criminal conduct (Guideline J) and personal conduct (Guideline E) 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. DOHA recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied or revoked. Applicant provided his answer to DOHA on May 21, 2007, Applicant requested a hearing before an Administrative Judge.

The case was assigned to me on August 23, 2007. On September 18, 2007, this case was set for hearing on October 11, 2007. The government submitted sixteen exhibits (GE 1-16) and called three witnesses. I also took official notice of the National Industrial Security Program Manual (NISPOM). Applicant submitted nine exhibits (AE A-I) and elicited the testimony of four witnesses, including Applicant. The transcript was received on October 24, 2007. On November 15, 2007, Applicant requested (by fax) 10 additional days to review the transcript because he did not receive his copy until November 13, 2007. That request was granted. On November 26, 2007, Applicant submitted a list of proposed corrections to the transcript. Department Counsel reviewed the list and interposed no objections. Applicant’s proposed corrections are accepted.

RULINGS ON PROCEDURE

GE 8, a certified results of interview, is one page in length. The second to the last paragraph (fourth paragraph from the top) of Government Exhibit (GE) 8 was deleted from the remainder of the exhibit based on double hearsay from multiple sources. (Tr. 28) GE 8 was then admitted.

GE 9, a report of investigation, is four pages in length. The following areas of page 2 were deleted from the exhibit for double hearsay reasons: (1) the first paragraph beginning with “Subject was asked by this writer . . . ”; (2) the first sentence of paragraph five; (3) the 13 paragraph (last paragraph on page 2). The remainder of the exhibit was admitted.

GE 12, a probable cause affidavit, is two pages in length. Based on double hearsay, the following sentence was removed from page 2 of the exhibit: The sentence appears at line 19, beginning with the words: “I met with . . . ,” and ends on line 21 with the word “staggering.” The remainder of the exhibit was admitted.

I have taken official notice of certain portions of the National Industrial Security Program Operating Manual (NISPOM), including Section 3 addressing reporting requirements. In addition, I have taken official notice of a state supreme court decision (February 25, 1988), holding that in the sentencing phase of a criminal offense identified as “leaving the scene of an accident that involved personal injury,” restitution to the victim cannot be a condition of a defendant’s probation where damages to the victim were not caused by defendant’s leaving the scene of an accident.

Applicant is 44 years old and single. He has been employed as a hydraulics engineer at the same location since 1988. In May 2006, he was promoted to a-level 5 engineer.

In December 1990, Applicant was at a Christmas party and had too much to drink. While driving home in his car, he was stopped by the police for failing to stay in his driving lane. He failed a breath test and was arrested for driving while under the influence of alcohol (DUI) (subparagraph 1.a.). A plea bargain reduced the DUI to a less serious offense of reckless driving. Applicant’s sentence included court costs, community service and six months probation. He successfully completed all conditions of his sentence. Applicant maintains he reported the 1990 alcohol-related incident to his facility security officer (FSO) (Tr. 149).

On or about November 22, 2000, Applicant consumed three mixed drinks at a restaurant. He began to feel tired because he had also taken prescribed sinus medication earlier in the day. He was on his way home when he decided to stop at his father’s house. After turning onto the street where his father lived, Applicant noticed his father’s driveway was filled with cars. Applicant then decided to turn into a neighbor’s driveway and rest for about an hour before driving home. The sheriff’s department awoke him and charged him with DUI (subparagraph 1.b.). Applicant pled guilty to the less serious offense of reckless driving and was sentenced to six months probation, court costs, 50 hours community service and alcohol counseling. He successfully completed all conditions of his sentence, including counseling. The group sessions consisted of 15 group sessions in 15 weeks, and 15 Alcoholics Anonymous (AA) meetings. The counseling educated him on the effect of mixing alcohol with certain kinds of medication. There was also a general alcohol course he completed (Tr. 148; GE 6). Applicant reported the November 2000, alcohol-related incident to his FSO (Tr. 150).

About 10:00 p.m. on June 21, 2003 (Saturday), Applicant was driving his pickup truck from a movie theater to his father’s house who lives in Applicant’s neighborhood. He is sure he had not been drinking during the day before the incident (Tr. 156). After spending between 15 and 30 minutes at his father’s house, Applicant departed for home. He observed two vehicles in front of him, then turned his eyes away from the road to adjust his compact disc player located behind his driver’s seat. When he turned back around, he was too close to the vehicles and had no chance to stop. He struck the rear end of a pickup truck (middle vehicle) containing the two victims.

The probable cause report indicated no skid marks from Applicant’s pickup truck (vehicle one). The middle vehicle then struck the rear of a third vehicle, then the middle vehicle continued through the intersection and collided with a tree. (GE 12, AE A). The impact of Applicant’s vehicle and the middle vehicle (occupied by the two victims) pushed the middle vehicle forward about 245 feet (GE 12). Applicant did not know how fast he was going and could have been traveling faster than 35 to 40 miles per hour. (GE 5). The posted speed limit at the accident location was 35 miles per hour. The impact of Applicant’s pickup with the middle vehicle caused the air bags in Applicant’s pickup to deploy and knock off his glasses. After gathering his thoughts for a couple of minutes, he made an attempt to walk toward the pickup truck he hit to check on the condition of the occupants. How close he got to the pickup truck containing the victims is not clear. Applicant’s May 2005 interview (GE 10) reflects he walked to the victims’ vehicle and believed they were all right. In the sworn statement (GE 5) on January 23, 2007 and at the hearing, he walked toward the victim’s pickup truck, but noticed some neighborhood residents gathering at the accident scene. Applicant thought that two or three of the residents were brothers of the two victims (Tr. 155, 198). The record is silent as to how he discerned the relationship of these individuals to the victims. According to Applicant, an unknown number of residents among the gathering began to threaten him in various ways, making him fear for his life (Tr. 155). At least one person shoved him as he was returning to his truck to recover his eyeglasses (GE 5).

For some reason, the crowd that was following Applicant as he was returning to his pickup truck to recover his eyeglasses, reversed course to the victims’ truck, so, he decided to withdraw quickly from the scene. He walked about a mile to a wooded lot with no house. Still disoriented from the collision, he sat by a tree and went to sleep about 11:00 p.m. (Tr. 157) At approximately 5:00 or 6:00 a. m. the next morning (June 22, 2003, Sunday), Applicant awoke and walked to a friend’s house where he called his lawyer. Then, Applicant’s friend took Applicant to his father’s house about 10 a.m. Applicant spent the remainder of the day at his father’s house. He also spent the day at his father’s house on June 23 (Monday) and June 24, 2003 (Tuesday) (GE 5).

As noted in his sworn statement (GE 5), Applicant’s attorney (during the period from June 25, 2003 to September 16, 2003) called him at his father’s house on Wednesday, June 25, 2003, and informed Applicant that the attorney was scheduling June 30, 2003 as the date Applicant would surrender to the police. A couple of days after June 25, 2003, the attorney told Applicant not to surrender to the police, and that he would inform Applicant when the surrender date would be. When asked whether he tried to turn himself into the investigating officer (Tr. 159), Applicant read lines 7 through 10 of the probable cause report (GE 12, generated by the state trooper who investigated the crash), indicating that the state trooper could not accommodate the attorney’s telephonic request on June 25, 2003, to accept the surrender of Applicant since the trooper was still involved in the investigation and was going to turn his results over to the state attorney. In the next sentence of the report, the trooper offered to allow Applicant to present his side of what happened in the crash. The report reads:

[Applicant’s attorney] then advised [state trooper] (Applicant’s attorney and Applicant) would be at [highway patrol station] on Monday (June 30, 2003) at 3:30 P.M. He (Applicant’s attorney) then ask that I (state trooper) not arrest his client because he has an important job at the space center to make sure [space ship] takes off on time. I (state trooper) then gave him (Applicant’s attorney) my word. On Monday at 3:00 I (state trooper) received a call from [Applicant’s attorney] advising they would not make it due to car problems (GE 12). On Tuesday, July 1, 2003, the state trooper received a call that Applicant’s attorney was waiting for him at the police station. The trooper reported, “I then hurried back to the station for the unscheduled meeting, to find that his client (Applicant) was not present and he (Applicant’s attorney) had no intention of letting him answer questions, not even about the crash investigation.” (Id.)

On September 16, 2003, Applicant’s attorney told Applicant by phone to turn himself in at the police station (Tr. 161). On September 17, 2003, Applicant surrendered himself to the police.

When asked why he did not report the incident in June 2003 to his FSO, Applicant replied:

I didn’t report it because in my eyes there was no adverse information to report. Not knowing all of [his attorney’s] - - what all he was doing behind the scenes, and then the fact that I couldn’t turn myself in, I assumed and actually call me naive or whatever that maybe there weren’t going to be any charges in this accident. Because I acted in self-defense, you know, I throughout the whole thing until I received a phone call on the 16 [September] from [his attorney] that I needed to turn myself in, I, again, was under or hopeful and praying that there would be no charges in this instance. So based on that and the fact that I - - my attorney made provisions to turn myself in and was turned away, there was no - - there was no adverse information as far as an arrest report. (Tr. 160-161)

Applicant reiterated his sentiments about hoping that he would not be charged. He held out that hope until his attorney called him on September 16, 2003, to turn himself into the police the next day (Tr. 196).

The FSO prepared an adverse information report (GE 4) on September 24, 2003 (subparagraph 2.b.), based on her meeting with Applicant in which he informed her of the leaving the scene offense. She was required to generate this report pursuant to 1.302 of the National Industrial Security Program Operating Manual (NISPOM) (Tr. 59). The FSO also cited the defense contractor provisions applicable at the time of the incident for reporting adverse information (Tr. 63; GE 16, page 19, AE I). At the meeting, Applicant supplied her with notes (GE 14, one page) he had prepared after he turned himself into the police on September 17, 2003 (Tr. 188). The one page exhibit indicates the offense he was charged with, his plea, and his next court date. (Id.) Although she did not recall during the meeting whether she asked him when the offense occurred (Tr. 61), the adverse information report states he told the FSO he did not know when the offense took place (GE 4). When asked why he could not identify the offense date, he stated he simply forgot as the date was not a part of the notes (GE 14) he had given her (Tr. 162). She did not believe he was trying to hide anything (Tr. 167). I find his explanation for not providing the date of the accident to the FSO is not credible for three reasons: (1) the seriousness of the accident; (2) the recency of the offense; and (3) the series of events that purportedly took place after Applicant hit the middle vehicle, withdrew from the scene, and slept in the wooded lot.

Subparagraph 1.c. of the SOR alleges Applicant was charged with two counts of the leaving the scene of an accident involving personal injury (third degree felonies) and two counts of reckless driving (second degree misdemeanors). The allegation also reads that he was found guilty of the four charges. The number of charges as well as the number of charges Applicant pled to is incorrect. On July 16, 2003, a capias was issued on the charge of one count of leaving the scene of an accident involving personal injury (AE C). A capias was also issued on one count of reckless driving (AE D). On September 5, 2003, an information was filed citing June 21, 2003 as the date Applicant left the scene of an accident involving personal injury to two victims (AE D). On November 10, 2003, Applicant pled guilty to one count of leaving the scene offense involving personal injury, third degree felony, and was sentenced on February 25, 2004. Apparently, the reckless driving charge was dismissed. He was sentenced to 15 weekends at the local county farm, required to pay court costs and fees totaling $284.00, ordered to provide restitution to the victims in the amount of $115,000.00, and placed on probation until February 24, 2009.

Subparagraph 2.c. alleges that Applicant declined to provide a written financial statement to an investigator of the Office of Personnel Management (OPM). Applicant told the investigator he earned about $84,000.00 in salary, and had about $70,000.00 in savings. He explained that he had paid all but $29,400.00 to both of the victims in the accident. His insurance company paid $15,000.00 to each victim. Applicant paid the victims $4,000.00 in June 2004 and $6,000.00 in July 2004. Every month after July 2004, he paid $4,560.00 to the victims, and he had only the aforementioned remainder to pay by the time of the OPM interview. After hearing figures about Applicant’s earnings, his savings and his record of restitution payments, the investigator was justifiably interested in obtaining additional information. Applicant did not provide financial statement and should have. On the other hand, he provided detailed information about his finances in his answers to interrogatories (GE 6) and his sworn statement (GE 7).

The facility site director testified that he has worked with Applicant for the last five years, and has found him to be reliable, well prepared, and a trustworthy engineer. The site director has seen Applicant’s file, but does not specifically know why his file is being challenged.

The manager of launch vehicles stated at the hearing Applicant has worked for him since about 1997. The manager considers that Applicant, in addition to being reliable and trustworthy, is devoted to ensuring the project is completed on time and according to specifications. The manager lacks any knowledge of the reasons for the security hearing.

A coworker, who is a mechanical engineer and Applicant’s friend outside the workplace, has worked with Applicant for the past 20 years, although the coworker’s job centers on project assembly whereas Applicant’s job is directed at a project’s hydraulics. The coworker described Applicant and himself as predictable, steady individuals. The coworker received Applicant’s help in landscaping his house. The friend was not really sure about the reasons for the hearing, but mentioned adverse information about an accident and restitution.

Applicant testified he has not consumed alcohol since he was released from custody on his own recognizance on September 17, 2003. One reason he has remained abstinent is because no alcohol is a condition is of his current probation (Tr. 193).

As the finder of fact, I am responsible for weighing the circumstances of each case in order to find the most reasonable and credible set of facts. Toward that end, I can be believe all of a witness’ testimony, some of his testimony or none of his testimony. Applicant repeatedly maintained he did not report the accident to the FSO because he had not been arrested or charged. He even made a point of his growing hope the charges would not be filed. The credibility of his arrest claim and his no charge hopes is undermined by Applicant’s age (40) at the time of the accident and the 15-year period in which he has held a security clearance. The credibility of both claims is also undermined by the information of GE 12 that raises a reasonable inference Applicant knew he was going to be arrested, and a course of action appears to have been underway to delay the arrest.

Enclosure 2 of the Directive sets forth guidelines containing disqualifying conditions (DC) and mitigating conditions (MC) that should be given binding consideration in making security clearance determinations. These conditions must be considered in every case along with the general factors of the whole person concept. However, the conditions are not automatically determinative of the decision in any case nor can they supersede the Administrative Judge's reliance on his own common sense.

Burden of Proof

Initially, the government must establish, by substantial evidence, that conditions exist in the personal or professional history of the applicant which disqualifies, or may disqualify, the applicant from being eligible for access to classified information. See Department of the Navy v. Egan, 484 U.S. 518, 531 (1988) “[T]he Directive presumes there is a nexus or rational connection between proven conduct under any of the Criteria listed therein and an applicant’s security suitability.” ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996) (quoting DISCR Case No. 92-1106 (App. Bd. Oct. 7, 1993)).

Once the government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” See Egan, 481 U.S. at 531; see Directive E2.2.2.

Criminal Conduct (CC)

In addition to creating doubt regarding a person’s judgment and trustworthiness, criminal conduct raises questions about s person’s ability to comply with laws.

Personal Conduct (PC)

Conduct that involves questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations, may also raise questions about an individual’s reliability, trustworthiness and ability to safeguard classified information.

Criminal Conduct (CC)

The government has established a pattern of criminal behavior that falls within the scope of the CC guideline. CC disqualifying condition (DC) 31.a. (a single serious crime or multiple lesser offenses) applies. In December 1990 and November 2000, Applicant was charged with two alcohol- related driving offenses. The fact that he pled guilty to lesser included offenses on both occasions does not eliminate the security significance of his underlying criminal conduct.

On June 21, 2003, Applicant rear ended a second vehicle that hit a third vehicle. After hitting the third vehicle, the second vehicle continued travel until it hit a tree. On November 10, 2003, Applicant pled guilty to leaving the scene of an accident involving personal injury. On February 25, 2005, he was sentenced to supervised probation, which is scheduled to end in February 2009. He also was required to pay $115,000.00 in restitution, which he completed in December 2005. The fact that Applicant was not obligated to make restitution under state law does not alter Applicant’s responsibility for the accident.

There are two mitigating conditions (MC) that may eliminate or dramatically reduce the security concerns associated with Applicant’s criminal conduct: CC MC 32.a. (so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment), and CC MC 32.d. (there is evidence of successful rehabilitation; including but no limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community service). Though Applicant’s sentencing was more than three years ago, the mere passage of time does not sufficiently mitigate the case due to the fact Applicant is not scheduled to be discharged from probation until February 2009. He is aware that any violation of his probation could mean reinstatement of the original terms of his sentence. Second, based on my conclusion Applicant knew he was going to be charged with a crime, he should have advised his FSO much earlier about the offense, rather than wait three months. Applicant’s use of poor judgment renders CC MC 32.a. inapplicable to the circumstances in this case.

Applicant is entitled to limited mitigation under CC MC 32.d. based on the passage of time without subsequent criminal activity. Even though Applicant is still on probation, he has complied with the terms of probation, including abstinence from alcohol. On the other hand, while he has paid a large sum of money in restitution, his claims of remorse must be weighed and balanced against his hope from June 21, 2003 to at least September 16, 2003 that he essentially felt he had done nothing wrong to cause the accident. Applicant’s two supervisors and one coworker provided an excellent picture of his good job performance, but they conveyed negligible insight into his behavior away from the job, specifically his criminal record. The evidence under CC MC 32.a. and CC MC 32.d. is insufficient to overcome the adverse evidence under CC DC 31.a.

Personal Conduct (PC)

PC DC 16.c. (credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, considered as a whole, 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 person may not properly safeguard classified information) applies to subparagraphs 2.a. and 2.b. of the SOR. Besides the criminal implications of the leaving the scene involving personal injury (2.a.), the offense also constitutes questionable judgment under the PC guideline while supporting a negative whole person assessment.

Regarding subparagraph 2.b., having caused a three-car accident, followed by the threatening behavior and an assault Applicant claims that put him in fear for his life and forced him to withdraw from the scene to a vacant lot where he slept for part of the night, and certainly caused him consternation in the week following the accident, I find no credible reason outside of PC DC 16.b. (deliberately providing false or misleading information concerning relevant facts to a security official) for Applicant to tell his FSO he could not recall when the June 21, 2003 accident occurred. Though he contends he forgot about the day of the offense, I conclude he did not want her to know when the offense occurred because of the suspicion that could be raised by three-month time frame between the accident and his disclosure.

The mitigating condition potentially available under the PC guideline for subparagraph 2.a. is PC MC 17.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 is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment) Even though the June 2003 offense is dated, and may be unlikely to recur, Applicant’s exercise of poor judgment between June 21 and September 24, 2003, and his deliberate falsehood expressed to his FSO in September 2003 makes PC MC 17.c. and 17.d. and PC MC 17.d. (the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstanced, or factors that caused untrustworthy, unreliable, or other inappropriate behavior is unlikely to recur) inapplicable to these facts. The only mitigating condition available for subparagraph 2.b. is PC 17.a. (the individual made prompt, good-faith efforts to correct the omission, concealment before being confronted with the facts). I am unable to apply this condition as Applicant’s position continues to be that he simply forgot when the June 21, 2003 accident occurred. Subparagraphs 2.a. and 2.b. are resolved against Applicant.

Regarding Applicant’s failure to provide a financial statement alleged under subparagraph 3.c., I have weighed and balanced the agent’s testimony with Applicant’s testimony. Though Applicant did not provide a financial statement, he did provide the agent with practically all the details of the restitution schedule without the documentation. He also provided the second agent all the documentation requested. Hence, I am unable to conclude Applicant’s behavior comes within the scope of PC DC 15.a. or b., or a disqualifying condition under 16. Subparagraph 2.c. is resolved in Applicant’s favor.

In all adjudications, the objective of the security clearance process is to decide whether a person is eligible for a security clearance. This decision is based on a commonsense assessment of a person’s life using the general factors listed under the whole person model found in Enclosure 2 of the Directive. The general factors that comprise the whole person are: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances of 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 behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation; and (9) the likelihood of continuation or recurrence. The record reflects a pattern of criminal conduct since December 1990. The record also shows the adverse personal conduct set forth in subparagraphs 2.a. and 2.b. Applicant was 40 years old and had held a security clearance for 15 years when he had the accident in June 2003. Relying on the advice of counsel did not eliminate his duty to keep his FSO informed within a reasonable period of time of his involvement in the accident. Having weighed the chronology of events ending with the information finally provided by Applicant to the FSO on September 24, 2003, I am unable to conclude that Applicant forgot the date of the accident. I have carefully evaluated Applicant’s good job performance, his abstinence, and his compliance with terms of his probation, specifically the restitution payments he completed in December 2005. Having carefully evaluated the entire record, Applicant has failed to overcome the criminal conduct allegations. Though he has also not met his ultimate burden of persuasion under the personal conduct guideline, I find subparagraph 2.c. in his favor.

Formal Findings required by Paragraph 25 of Enclosure 3 are:

Paragraph 1 (Criminal Conduct, Guideline J): AGAINST THE APPLICANT

Subparagraph 1.a. Against the Applicant Subparagraph 1.b. Against the Applicant Subparagraph 1.c. Against the Applicant

Paragraph 2 (Personal Conduct, Guideline E): AGAINST THE APPLICANT

Subparagraph 2.a. Against the Applicant Subparagraph 2.b. Against the Applicant Subparagraph 2.c. For the Applicant

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

Paul J. Mason Administrative Judge

FOR GOVERNMENT John B. Glendon, Esq., Department Counsel

FOR APPLICANT Thomas R. Townsend, Esq. th

AE E, a copy of the SOR and Applicant’s answer was not admitted in evidence and returned to Applicant. AE A is a long form traffic report dated June 21, 2003, and generated by the state trooper who also prepared GE 12 (probable cause report). The report contains Applicant’s current address. Certain areas of the exhibit were highlighted by Applicant’s counsel (Tr. 128). Those highlighted areas have been disregarded. Applicant did not file a complaint against the individuals who caused him to fear for his life (Tr. 214). th After reviewing Applicant’s documentary submissions, including Internal Revenue Service (IRS) documents and checking account information, the investigator concluded Applicant had been making his restitution payments through legitimate means (Tr. 121).