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ISCR 15-08141.h1: Guideline J security clearance hearing, denied (2017) · CASE

ISCR Case 15-08141.h1denied

Case headnote

ISCR Case No. 15-08141.h1

deniedAug 29, 2017· Hon. LeRoy F. Foreman· hearing

Summary

A 21-year-old security officer was denied a U.S. security clearance under Guideline J (Criminal Conduct) due to a 2014 incident involving drug paraphernalia. In December 2014, the applicant was charged with possession of marijuana. This charge was resolved in May 2015 when the applicant pleaded guilty to possession of drug paraphernalia.

As a result of the plea, the applicant received a suspended 30-day jail sentence and was placed on unsupervised probation for three years, scheduled to conclude in May 2018. At the time of the security clearance decision, the applicant was still on unsupervised probation, which was a significant factor in the denial.

The judge determined that the applicant's ongoing probation indicated continuing criminal conduct concerns. Furthermore, the applicant did not provide sufficient evidence of rehabilitation or a positive employment record since the offense, leading to the denial of the security clearance.

Why the applicant was denied

The applicant was on unsupervised probation at the time of the decision, indicating ongoing criminal conduct concerns.
The applicant failed to provide evidence of rehabilitation or a good employment record since the criminal conduct.

Conditions referenced

Disqualifying

AG ¶ 31(b)raisedCriminal Conduct
AG ¶ 31(c)raisedCurrently on Parole or Probation

Mitigating

AG ¶ 32(a)rejectedTime Elapsed Since Criminal BehaviorThe applicant's criminal conduct occurred almost three years ago, but he has been on probation for most of that time.
AG ¶ 32(d)rejectedEvidence of Successful RehabilitationThe applicant has not completed his probation and presented no evidence of rehabilitation.

Key rule quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural posture

SOR issuedJun 8, 2016
Answer filedJul 22, 2016
Hearing held—Decision made on the record without a hearing.
Decision dateAug 29, 2017

Cite for

Denial of Clearance Due to Ongoing Probation Under Guideline J
Lack of Evidence for Rehabilitation in Criminal Conduct Cases
Consideration of the Whole-person Concept in Security Clearance Decisions.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 21: “Applicant is a 21-year-old security officer employed by federal contractors since September 2014.”
Tenure: ~3 years: “Applicant is a 21-year-old security officer employed by federal contractors since September 2014.”
Held a clearance before: No: “He has never held a security clearance.”

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant was denied eligibility for access to classified information due to concerns regarding criminal conduct. The judge found against the applicant on the sole allegation of drug-related criminal conduct, specifically possession of drug paraphernalia, which raised doubts about the applicant's judgment and reliability.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. The verbatim source decision is shown in full below.

Full decision

The complete, official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) [Redacted] ) ISCR Case No. 15-08141 ) Applicant for Security Clearance )

For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se

08/29/2017 ______________

STATEMENT OF CASE

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves security concerns raised under Guideline J (Criminal Conduct). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application on June 26, 2015. On June 8, 2016, the Department of Defense (DOD) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline J. The DOD acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006.1 Applicant answered the SOR on July 22, 2016, and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on August 17, 2016. On August 18, 2016, a complete copy of the file of relevant material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on September 20, 2016, and did not respond.2 The case was assigned to me on August 8, 2017.

Findings of Fact3

In his answer to the SOR, Applicant admitted the sole allegation alleging drug involvement. His admission is incorporated in my findings of fact.

Applicant is a 21-year-old security officer employed by federal contractors since September 2014. He underwent drug testing when he was hired by his current employer and tested negative. He graduated from high school in May 2014. He is unmarried, has no children, and lives with his mother. He has never held a security clearance.

In December 2014, Applicant was a front-seat passenger in a vehicle driven by a former high-school classmate, and with another person in the back seat. After a traffic stop, police officers found a small quantity of marijuana and drug paraphernalia in the back seat. All three occupants of the vehicle denied owning the marijuana or paraphernalia. All three were charged with possession of marijuana and possession of drug paraphernalia. None of the occupants were detained or required to post bond. In May 2015, Applicant appeared in court, represented by counsel, and pleaded guilty to possession of drug paraphernalia. He was sentenced to 30 days in jail (suspended), fined $250, and assessed court costs of $96. He was placed on unsupervised probation until May 2018. His mother paid the fine and court costs. He told a security investigator that he was disciplined by his mother. (Answer to SOR; personal subject interview (Item 3); court record (Item 4).)

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (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. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

ANALYSIS

Guideline J, Criminal Conduct

The SOR alleges that Applicant was charged with possession of marijuana in December 2014, pleaded guilty to possession of drug paraphernalia in May 2015, and was sentenced to 30 days in jail (suspended) and placed on unsupervised probation for three years, until May 2018. The concern under this guideline is set out in AG ¶ 30: “Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules, and regulations.”

Applicant’s admission and the documentary evidence in the record establish the following disqualifying conditions:

AG ¶ 31(b): evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted; and

AG ¶ 31(c): individual is currently on parole or probation.

The following mitigating conditions are potentially relevant:

AG ¶ 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

AG ¶ 32(d): there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.

AG ¶ 32(a) is not fully established. Applicant’s criminal conduct occurred almost three years ago, but he has been on probation for most of that time. His conduct did not occur under unusual circumstances. It is too soon to determine whether he will engage in criminal conduct when the pressure of being on probation and trying to qualify for a security clearance is removed.

AG ¶ 32(d) is not established. Applicant has not completed his probation, and he presented no evidence of his employment record, further education, community involvement, or other evidence showing that he has moved beyond the poor judgment and immature conduct demonstrated by his criminal conduct.

WHOLE PERSON CONCEPT

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. In applying the whole-person concept, an 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 and applying the adjudicative factors in AG ¶ 2(d).4

I have incorporated my comments under Guideline J in my whole-person analysis and applied the adjudicative factors in AG ¶ 2(d). Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003). After weighing the disqualifying and mitigating conditions under Guideline J, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his criminal conduct.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

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

Subparagraph 1.a: Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

LeRoy F. Foreman Administrative Judge

FOOTNOTES

1 Security Executive Agent Directive 4 (SEAD 4), was issued on December 10, 2016, revising the 2006 adjudicative guidelines. The SEAD 4 guidelines apply to all adjudicative decisions issued on or after June 8, 2017. My decision is based on the guidelines in SEAD 4, referred to in this decision as “AG.” The changes resulting from issuance of SEAD 4 did not affect my decision in this case. 2 The FORM included Item 3, a summary of a personal subject interview (PSI) conducted on August 11, 2015. The PSI was not authenticated as required by Directive ¶ E3.1.20. Department Counsel informed Applicant that he was entitled to comment on the accuracy of the PSI summary; make any corrections, additions, deletions or updates; or object to consideration of the PSI on the ground that it was not authenticated. I conclude that he waived any objections to the PSI summary by failing to respond to the FORM. Although pro se applicants are not expected to act like lawyers, they are expected to take timely and reasonable steps to protect their rights under the Directive. ISCR Case No. 12-10810 at 2 (App. Bd. Jul. 12, 2016).

3 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record. 4 The factors are: (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.