CAC Case No. 16-00001.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) [NAME REDACTED] ) CAC Case No. 16-00001 ) ) ) Applicant for CAC Eligibility )

For Government: Chris Morin, Esq., Department Counsel For Applicant: Pro se

10/18/2016 ______________

______________

MALONE, Matthew E., Administrative Judge:

Statement of the Case

On February 5, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing eligibility concerns for Common Access Credential (CAC) eligibility pursuant to Homeland Security Presidential Directive – 12 (HSPD-12). The SOR was issued because DOD was unable to find that granting CAC eligibility to Applicant did not pose an unacceptable risk. The action is based on the Adjudicative Standards found in DoD Instruction 5200.46, DOD Investigative and Adjudicative Guidelines for Issuing the Common Access Card, dated September 9, 2014, and made pursuant to 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). The concerns raised in the SOR under the Adjudicative Standards of DoDI 5200.46 are:

1. Criminal or dishonest conduct (Supplemental Adjudicative Standards, Paragraph 2.a); and 2. Illegal use of narcotics, drugs, or other controlled substances (Supplemental Adjudicative Standards, Paragraph 5.a)

On March 9, 2016, Applicant answered the SOR. He admitted all of the SOR allegations and requested a hearing. The case was assigned to me on May 18, 2016, and I convened a hearing on June 29, 2016. The parties appeared as scheduled. Department Counsel presented Government Exhibits (Gx.) 1 - 4. Applicant testified and presented Applicant Exhibit (Ax.) A. All exhibits were admitted without objection. I received the hearing transcript (Tr.) on July 11, 2016. Based on the record evidence as a whole, CAC eligibility is granted.

Applicant is 36 years old. Since July 2013, he has been employed in a position that requires CAC eligibility to access sensitive information systems as part of his assigned duties. On October 16, 2014, he submitted an Electronic Questionnaire for Investigations Processing (EQIP) to initiate a background investigation for CAC eligibility. (Gx. 1; Tr. 35).

Applicant served in the United States Army from August 1998 until March 2003. He left the military with a bad conduct discharge. (Gx. 1; Gx. 4; Tr. 33 - 34)

In September 1999, Applicant tested positive for marijuana while in the Army and holding a security clearance. He received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). In May 2000, the Army revoked his security clearance because of his drug-related misconduct. (Answer; Gx. 2)

In July 2000, Applicant was arrested by military police for various offenses, including wrongful use and possession of marijuana. He was reduced in rank to E-1, forfeited one month of his pay, was confined for 120 days, and given a bad conduct discharge. (Answer; Gx. 4)

In December 2004, Applicant was pulled over for speeding. A search of his vehicle produced a small bag of marijuana. Applicant was issued a citation and later pleaded guilty to misdemeanor possession of marijuana and drug paraphernalia. (Answer; Gx. 3)

In January 2013, Applicant was driving with his cousin and one other passenger when he was pulled over for a traffic violation. A search of his vehicle produced a small amount of marijuana, but the drugs did not belong to him. Because the passenger to whom the marijuana belonged did not admit it was his, Applicant, as the owner and operator of the car, was given a citation charging him with misdemeanor possession of marijuana. The state later dismissed the charge against Applicant. (Answer; Gx. 3; Tr. 27, 29)

Although not alleged, Applicant acknowledged that he had a problem with drugs and alcohol while in the Army and for a time after his discharge. He also attributed his drug-related problems to a period of inactivity and uneven employment as he dealt with the effects of a medical problem he developed while on active duty. He currently has a 50 percent disability rating from the Department of Veterans Affairs. (Tr. 28, 31 - 33)

Applicant has not used illegal drugs since 2010, and he no longer associates with persons who use drugs. In 2010, he enrolled in a local community college and earned an associate’s degree in 2013. His record of performance at work is excellent. (Ax. A; Tr. 29 - 31, 35)

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. The decision must be arrived at by applying the standard that the grant of CAC eligibility is clearly consistent with the national interest.

The objective of CAC credentialing process is the fair-minded commonsense assessment of a person’s life to make an affirmative determination that the person is an acceptable risk to have CAC eligibility. Each case must be judged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis. 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, paragraph 1) In all adjudications, the protection of the national interest is the paramount consideration. Therefore, any doubt concerning personnel being considered for CAC eligibility should be resolved in favor of the national interest.

The Government’s information and Applicant’s admissions support the SOR allegations and they are established as facts. Those facts raise CAC eligibility concerns addressed in DoD Instruction 5200.46, Enclosure 4, Appendix 2.

Some of those concerns are delineated in the Supplemental Adjudicative Standards, Paragraph 2 as follows:

A CAC will not be issued to a person if there is reason 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 and 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.

b. Therefore, conditions that may be disqualifying include:

(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.

c. Circumstances relevant to the determination of whether there is a reasonable basis to believe there is an unacceptable risk include:

(1) The behavior happened so long ago, was so minor, or happened under such unusual circumstances that it is unlikely to recur;

(2) Charges were dismissed or evidence was provided that the person did not commit the offense and details and reasons support his or her innocence; 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, or constructive community involvement, or passage of time without recurrence.

Paragraph 2.b(1) applies. Applicant was charged and convicted of three drug possession charges between 1999 and 2004. By contrast, it has been 12 years since he committed any other criminal offense. The 2013 drug possession charge was dismissed because Applicant had not knowingly committed any offense. Further, Applicant’s circumstances since 2010 – discontinued drug use, associate’s degree, and steady, productive employment – are evidence of successful rehabilitation. All of the foregoing supports application of paragraphs 2.c(1), 2.c(2), and 2.c(4). On balance, the eligibility concerns about Applicant’s criminal conduct are mitigated.

Eligibility concerns also arising from the facts of this case are also addressed in the Supplemental Adjudicative Standards, Paragraph 5 as follows:

A CAC will not be issued to a person if there is a reasonable basis to believe, based on the nature or duration of the individual’s illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation, that issuance of a CAC poses an unacceptable risk.

a. An individual’s abuse of drugs may put people, property, or information systems at risk. Illegal use of narcotics, drugs, or other controlled substances, to include abuse of prescription or over-the-counter drugs, can raise questions about his or her trustworthiness, or ability or willingness to comply with laws, rules, and regulations. For example, a person’s long-term illegal use of narcotics without evidence of substantial rehabilitation may indicate that granting a CAC poses an unacceptable safety risk in a U.S. Government facility.

b. Therefore, conditions that may be disqualifying include:

(3) Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution of illegal drugs, or possession of drug paraphernalia.

c. Circumstances relevant to the determination of whether there is a reasonable basis to believe there is an unacceptable risk include: (1) The behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur (e.g., clear, lengthy break since last use; strong evidence the use will not occur again).

(2) A demonstrated intent not to abuse any drugs in the future, such as: (a) Abstaining from drug use; (b) Disassociating from drug-using associates and contacts; and (c) Changing or avoiding the environment where drugs were used.

Available information supports application of paragraph 5.b(3). Applicant illegally possessed and used marijuana at least three times between 1999 and 2004. However, the record as a whole also requires application of paragraphs 5.c(1) and 5.c(2). Applicant has not used marijuana in at least six years; he no longer associates with persons who use illegal drugs; and he has changed the environment where his drug use occurred. Evidence of rehabilitation and good judgment is reflected in the fact he obtained his associate’s degree and from the past three years of Applicant’s employment. The concerns about his illegal drug use are mitigated.

Based on all of the foregoing, I conclude Applicant’s request for Common Access Credentialing eligibility should be granted.

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:

SOR Paragraph 1: Criminal or Dishonest Conduct: FOR APPLICANT

SOR Paragraph 2: Illegal Drug Involvement: FOR APPLICANT

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the interests of national security to grant Applicant CAC eligibility. CAC eligibility is granted.

Matthew E. Malone Administrative Judge

The SOR erroneously included “or Financial Irresponsibility” as part of the Paragraph 2.a concern. Also included was the following language: “Financial irresponsibility may raise questions about the individual’s honesty and put people, property or information systems at risk.” This also should not have been included in the SOR as it is part of a wholly different adjudicative standard.