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ISCR Case 12-11087.h1 — CASE

ISCR Case 12-11087.h1denied

Case Headnote

ISCR Case No. 12-11087.h1

deniedMay 17, 2013· Hon. Carol G. Ricciardello· hearing

Summary

A 25-year-old naturalized U.S. citizen, born in Pakistan to Afghan parents, was denied a security clearance due to concerns under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The applicant admitted to several criminal offenses, including a DUI, and failed to disclose prior drug use and debts on his security clearance application.

The denial was primarily based on the applicant's family ties to Afghanistan, particularly a brother with a criminal history, which the judge determined created a heightened risk of foreign influence. Additionally, the applicant provided minimal information regarding his wife's contact with her family in Afghanistan, further raising concerns about potential conflicts of interest.

The Statement of Reasons cited specific allegations, including contact with foreign family members creating a heightened risk of exploitation, connections to a foreign country creating a potential conflict of interest, and sharing living quarters with individuals whose relationships could lead to foreign inducement or pressure. These factors collectively led to the denial of the applicant's security clearance.

Why the Applicant Was Denied

The applicant admitted to multiple criminal offenses, including a DUI and failure to disclose prior drug use and debts on his security clearance application.
The applicant's family ties to Afghanistan, including a brother with a criminal history, created a heightened risk of foreign influence.
The applicant provided minimal information about his wife's contact with her family in Afghanistan, raising concerns about potential conflicts of interest.

Conditions Referenced

Disqualifying

AG ¶ 7(a)appliedContact with a Foreign Family Member
AG ¶ 7(b)appliedConnections to a Foreign Person That Create a Potential Conflict of Interest
AG ¶ 7(d)appliedSharing Living Quarters with a Person That Creates a Heightened Risk of Foreign Inducement
AG ¶ 31(a)appliedA Single Serious Crime or Multiple Lesser Offenses
AG ¶ 31(c)appliedAllegation or Admission of Criminal Conduct

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedNov 30, 2012
Answer filedDec 29, 2012
Hearing held—Decided on the written record.
Decision dateMay 8, 2013

Cite For

Heightened Risk of Foreign Influence Due to Family Ties Under Guideline B
Impact of Criminal Conduct on Security Clearance Eligibility Under Guideline J
Failure to Disclose Relevant Information on Security Clearance Applications Under Guideline E

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

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline B concerning foreign influence. The applicant's ties to family members in Afghanistan, including a wife and mother-in-law, raised security concerns due to the country's human rights issues and potential for coercion. The applicant's relationships with these family members were deemed to create a heightened risk of foreign influence, leading to the denial of the security clearance.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.	Against Applicant	In Law in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.b	Connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information.	Against Applicant	Unspecified Foreign Relationship Other	Afghanistan HEIGHTENED RISK	Admitted	(b) connections creating a potential conflict of interest	—	—
1.c	Sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure or coercion.	Against Applicant	Cohabitation with Foreign National Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	(d) counterintelligence information indicating unacceptable risk	—	—

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline E, personal conduct. The applicant admitted to multiple instances of misconduct, including falsifying information on his security clearance application. The judge concluded that the applicant's conduct raised significant concerns regarding his judgment and reliability, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a–3.e	5 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		—		—	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found against the applicant on most allegations under Guideline J, criminal conduct, indicating a pattern of misconduct and failure to abide by legal obligations. The applicant's history of criminal activity, including a DUI conviction and multiple driving offenses, contributed to the denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a–2.l	12 sub-charges — specific text not stated in this decision (5 against, 2 for the applicant).	Mixed		—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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: ) ) ) ISCR Case No. 12-11087 ) ) Applicant for Security Clearance

For Government: Daniel Crowley, Esq., Department Counsel For Applicant: Pro se

05/17/2013 ______________

STATEMENT OF CASE

______________

RICCIARDELLO, Carol G., Administrative Judge:

Applicant failed to mitigate the security concerns under Guideline B, foreign influence, Guideline J, criminal conduct, and Guideline E, personal conduct. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On November 30, 2012, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, foreign influence, Guideline J, criminal conduct, and Guideline E, personal conduct. The action was taken under Executive Order 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 effective within the DOD for SORs issued after September 1, 2006. On December 29, 2012, Applicant answered the SOR and elected to have his case decided on the written record. On March 28, 2013, Department Counsel submitted the Government’s file of relevant material (FORM). The FORM was mailed to Applicant, and it was received on April 23, 2013. Applicant was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant provided additional information. Department Counsel had no objection and the documents were included in the record. The Government requested administrative notice be taken of certain facts with respect to Afghanistan.1 There was no objection, and I granted the request. The case was assigned to me on May 8, 2013.

FINDINGS OF FACT

Applicant admitted all of the SOR allegations, with comments. After a thorough and careful review of the pleadings and exhibits submitted, I make the following findings of fact.

Applicant is 25 years old. He is a high school graduate. He was born in Pakistan to Afghan parents who moved to the United States when he was five months old. He became a naturalized U.S. citizen in 2006. He has worked for a federal contractor since April 2012. Applicant’s family arranged for him to marry his wife. He returned to Afghanistan in 2010 and they married in December 2010. They have no children. His wife is a citizen of Afghanistan and resides in the United States with him. She is a registered alien.

Applicant’s brother and his wife are citizens and residents of Afghanistan. His brother lived in the United States until he was deported in 2000 while serving a prison sentence for armed robbery. Applicant indicated his brother was a gang member and because of his criminal record fell under the “three strike” law. Applicant indicated he has minimal contact with his brother, but admitted he sent his brother money to pass to Applicant’s future wife who was in Afghanistan at the time. He also stated his brother is financially well off and lives in a house their father owns in Afghanistan. He indicated that at one time his brother worked for different U.S. government agencies as a linguist, but quit because he did not feel safe. He stated in his Answer to the FORM that his brother has no links with anti-American groups.2

Applicant has another brother who is a U.S. citizen. This brother refused to provide Applicant with information for his security clearance application because he did not want to support Applicant’s efforts to work in Afghanistan. The reason was his brother was concerned for his own safety.3 Applicant’s mother-in-law is a citizen and resident of Afghanistan. Applicant describes her as a homemaker with no ties to the Afghan government. He indicated he has minimal contact with her. He talks on the telephone to her occasionally. He stated he feels no obligation toward her. Applicant did not provide information as to his wife’s relationship to her mother or the frequency of her contact with her mother in Afghanistan.4

Applicant has a history of criminal activity. In February 2006, he was issued a citation to appear in court on a possession of marijuana charge. In August 2006, Applicant failed to appear at the court hearing for this charge. He was later found guilty of the possession of marijuana charge and was ordered to complete five Narcotics Anonymous classes within a month. He completed the classes and in September 2006 the charge was reduced to disturbing the peace. Applicant stated his marijuana use was a “product of pressure from my peers at the time and those people are no longer in my life.”5 He stated in his Answer to the FORM that he used drugs recreationally with people ages 18 to 21. He stated “it was always in a social setting in which I felt pressured to do so.” During a security background interview, Applicant explained the details of his arrest for possession of marijuana. He indicated he and his girlfriend were parked in a car at a beach after hours. The police came up to the car. Because it was after hours, they searched the vehicle and found marijuana. Applicant denied it was his marijuana.

In October 2006, Applicant was charged with driving with a suspended license and reckless driving. In January 2007, Applicant was issued a ticket for failing to stop at a weigh station.6 He was fined $662. He later paid the fine after it was sent to a collection agency. In March 2008, Applicant was issued a ticket for driving without a license and was ordered to appear in court. In September 2008, Applicant was arrested for failing to appear in court for the March 2008 offense. In January 2009, Applicant was issued a ticket to appear in court for driving without a license. He chose not to appear in court because he did not have the money to pay any fines that might be imposed. In April 2009, he was arrested for failure to appear in court for the January 2009 offense. Also in April 2009, Applicant was charged with driving without a license. He attributed these offenses to the fact he was not paying tickets issued to him. This caused his license to be suspended and he would continue to drive. He stated he learned his lesson.7

In January 2010, Applicant was arrested and charged with driving under the influence (DUI) of alcohol, a misdemeanor. In February 2010, he pled no contest and the court found him guilty of the charge. He was placed on probation for 36 months, ordered to complete two programs, and pay $1,876 for fines and costs. Applicant stated he has not had any other alcohol-related offenses since his DUI conviction. He described his offense as a lapse of judgment. He stated he completed the terms of his sentence.

In November 2011, the court found Applicant in violation of his DUI probation. Applicant and friends went to a community pool after it had closed for the night. They were trespassing. Security officers arrived and called the police. Applicant later received a letter in the mail advising him he had violated his probation. His probation terminated in February 2012.8

Applicant admitted he falsified facts on his Electronic Questionnaire for Investigative Processing (e-QIP) executed on April 17, 2012. He deliberately failed to disclose that he used marijuana approximately five times between August 2004 and November 2007. In his Answer to the SOR, he explained that he did reveal the information during his subject interview and screening. He stated:

I did not answer yes in the questionnaire because I only used marijuana in bad company where I felt, as a young person, compelled to use the substance. I didn’t want to appear to be a drug user if I only used it because of peer pressure when I lacked knowledge about the substance. After I answered on my questionnaire incorrectly I felt remorse and guilt and immediately disclosed everything during my subject interview and CI screening.

In his Answer to the FORM, Applicant stated:

I was rushed through the application and did not have time to gather all of the pertinent paper work. I was told that it would not be a problem if I didn’t have all of the information with me because I would be able to discuss everything with someone in person during my CI interview. I took her advice and filled out the forms with what information I had available at the time. I was aware at the time that there was plenty left out because I was counting on the opportunity to discuss all of those things during my interview, which I eventually did.

Applicant disclosed in Section 22 (Police Record) of the e-QIP that he was charged in February 2010 with DUI. In this section he did not disclose he was convicted of DUI and was on probation. In Section 24-Use of Alcohol, Applicant disclosed the following:

After being charged and found guilty of misdemeanor DUI, I was ordered to complete a 3 month alcohol education program, attend the hospital and morgue program for youthful offenders and to pay fines, all of which I have completed. I was also placed on a 3 year probation, which was terminated early in January 2012, after only 2 years.9

Section 22 also asked the following: Have you EVER been charged with an offense involving alcohol or drugs.10 Applicant did not disclose his possession of marijuana charge. He claimed he did not disclose this charge because it was later reduced to disturbing the peace. Applicant stated in his Answer to the SOR the following:

I did not include the marijuana charge because it was reduced to a disturbing the peace charge which I believe to be an infraction and not a misdemeanor. I realize that not including these facts in section 22 of e-QIP was a mistake. I knew at the time that it was probably not the best decision. I revealed all of these facts in all earnestness during my CI screening and [s]ubject interview within days after submitting my e-QIP questionnaire.11

Regarding his failure to disclose his marijuana charge, Applicant further stated the following: “I realize it was a mistake and wrong to do so.”12

Applicant admitted he failed to disclose he had a debt with a court system that had been placed with a collection agency in March 2007. Applicant’s explanation for failing to disclose this debt was because “it was not a loan or credit card account.” He further stated: “I was not aware that court-related accounts were supposed to be included.”13

Applicant provided a certificate given to him for his exceptional performance at his job.14

Afghanistan

On May 2, 2012, the United States and Afghanistan signed the Enduring Strategic Partnership Agreement. It is a 10-year strategic partnership agreement that demonstrates the United States’ enduing commitment to strengthen Afghanistan’s sovereignty, stability, prosperity and continue cooperation to defeat al-Qaida and its affiliates. The United States has supported the elected Afghan government, providing development aid and stabilizing the country. The United States supports the Afghan government’s goals to steadily increase security and to take action to combat corruption, improve governance and provide better services to its people. Despite some progress, Afghanistan still faces daunting challenges in defeating terrorists and insurgents.

No part of Afghanistan is immune from violence, either targeted or random, against U.S. and other Western nationals. Various groups oppose the strengthening of a democratic government and will use violence to achieve their goals. U.S. citizens who are also citizens of Afghanistan may be subject to other laws that impose special obligations.

There are serious human rights problems in Afghanistan that include widespread violence from armed insurgent groups against persons affiliated with the government. There are indiscriminate attacks on civilians. There are credible reports of torture and abuse of detainees by security forces. There is pervasive corruption, endemic violence, and societal discrimination against women and girls. There are numerous other human rights problems associated with security forces.

The Department of State warns U.S. citizens against travel to Afghanistan and warns that the security threat to all U.S. citizens in Afghanistan remains critical. Extremist networks and groups coordinate complex suicide attacks and assassinations against government leaders. These terrorist groups operate within Afghanistan and also in nearby Pakistan.

POLICIES

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 AGs list potentially disqualifying conditions and mitigating conditions, which are 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), 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 access to classified information 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable security decision.”

A person who seeks access to classified information enters 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 that an applicant may deliberately or inadvertently fail to 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 10865 provides that 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).

ANALYSIS

Guideline B, Foreign Influence

AG ¶ 6 expresses the security concern regarding foreign influence:

Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.

AG ¶ 7 describes conditions that could raise a security concern and may be disqualifying. I have considered all of them and the following are potentially applicable:

(a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information; and

(d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure or coercion.

AG ¶¶ 7(a) and (d) require substantial evidence of a “heightened risk.” The “heightened risk” required to raise one of these disqualifying conditions is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government or owning property in a foreign country. The totality of Applicant’s family ties to a foreign country as well as each individual family tie must be considered.

Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.”15

Applicant’s wife is a citizen of Afghanistan and resides with him in the United States. His mother-in-law, brother, and sister-in-law are citizens and residents of Afghanistan. Minimal evidence was provided about Applicant’s wife’s contact with family members in Afghanistan. Applicant’s marriage was arranged and he met his wife when he traveled to Afghanistan for his wedding in 2010. Applicant’s brother was deported from the United States due to his criminal activity. Minimal information was provided regarding Applicant’s mother-in-law. Afghanistan’s human rights records, terrorism activities, and its problems with corruption in its government raise security concerns. Applicant’s relationships with these family members create a heightened risk. I find AG ¶¶ 7(a), 7(b), and 7(d) apply.

I have also analyzed all of the facts and considered all of the mitigating conditions for this security concern under AG ¶ 8 and conclude the following are potentially applicable:

(a) the nature of the relationship with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization and interests of the U.S.;

(b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interests in favor of the U.S. interests; and

(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation.

The nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the foreign government, the country is known to conduct intelligence operations against the United States, or the foreign country is associated with a risk of terrorism. Afghanistan has ties to the United States. However, its human rights record, terrorist activities, and corruption issues in its government raise concerns.

Applicant’s wife lives with him in the United States. He provided minimal background information about her. It is unknown if she intends to travel to Afghanistan in the future or if she has traveled there in the past. It is unknown how much contact she has with her relatives in the Afghanistan, especially her mother. It is unknown if she has assets in Afghanistan. Applicant indicated he did not know his mother-in-law very well and had little contact with her, but he was able to say she had no contact with the government. Applicant’s brother was deported due to his criminal conduct. Applicant asked his brother to pass some money to his wife before they were married. Although his contact may be infrequent, it cannot be characterized as casual. It is unlikely he would pass money to someone he did not trust. Without further information about Applicant’s wife, mother-in-law, brother and his wife, I am unable to conclude that his relationship with them does not create a security risk. I also cannot conclude that it is unlikely that Applicant would have to choose between their interests and the interests of the United States. I conclude that there is a potential conflict of interest between his wife and his loyalty to the United States. I find none of the above mitigating conditions apply.

Guideline J, Criminal Conduct

AG ¶ 30 sets out the security concern relating to criminal conduct:

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. I have considered the disqualifying conditions under Criminal Conduct AG ¶ 31 and the following are potentially applicable:

(a) a single serious crime or multiple lesser offenses; and

(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.

Applicant has numerous traffic violations, citations, and arrests for failure to appear in court. He was repeatedly arrested for his failure to appear. He repeatedly drove a vehicle without a license or when his license was suspended. He was arrested for possession of marijuana and for DUI. He violated his probation by trespassing. I find both of the above disqualifying conditions apply.

I have also considered all of the mitigating conditions for criminal conduct under AG ¶ 32 and the following are potentially applicable:

(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

(d) there is evidence of successful rehabilitation; including but not 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 involvement.

Applicant has numerous traffic violations, citations, arrests for failure to appear in court, an arrest for drug possession that was later reduced, and a DUI conviction. In 2006, Applicant was 18 years old and the offenses might be attributed to youthful indiscretion. However, his repeated failure to abide by the law and appear in court when ordered shows a disregard for complying with rules and regulations. It does not appear he learned from his first transgressions; instead he kept repeating the same conduct. It appears he complied with the sentence for his DUI conviction, but he also violated his probation by trespassing. He claims he is now more mature, but I am not convinced that future criminal conduct is unlikely to recur. He admitted that he has succumbed to peer pressure and attributes some of his conduct to being with the wrong people. Applicant’s history of criminal conduct casts doubt on his judgment, reliability, and trustworthiness. I find the above mitigating conditions do not apply.

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern about personal conduct:

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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

I considered the disqualifying conditions under AG ¶ 16 that could raise a security concern and concluded the following has been raised:

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; and

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal , professional or community standing.

Applicant disclosed in Section 22 of his e-QIP that he was charged with a DUI offense in February 2010. He disclosed in Section 24 that he was found guilty of the DUI and his sentence. I find that the information he provided in Section 24 of the e-QIP was sufficient to put the Government on notice as to the disposition of his DUI. Applicant deliberately failed to disclose his marijuana use and possession charge, his delinquent debt, his arrests for failure to appear, and charges for driving on a suspended license or without a license. The above disqualifying conditions apply.

The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered the following mitigating conditions under AG ¶ 17:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) The refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; and (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 (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.

Applicant failed to disclose all of his criminal activity on his e-QIP. He did disclose information during his background interview. Without further explanation, I am unable to determine if Applicant made a prompt good-faith effort to correct the omissions. Section 22 is very specific and direct as to the information that must be disclosed. His explanation that he was told that he did not have to include all of his offenses on his e- QIP was inconsistent with the explanation he first provided in his Answer to the SOR. He failed to provide credible information to apply AG ¶ 17(b). Applicant’s other explanations for failing to be honest on his e-QIP are inconsistent and not credible. His explanation for failing to disclose he had an unpaid debt because it was not a loan or a credit card was also not credible. Applicant has exhibited a continuing course of criminal, dishonest, and untrustworthy conduct. He has exhibited a pattern of misconduct and inability or unwillingness to abide by rules. I do not find that his conduct is unlikely to recur. His failure to be completely honest on his e-QIP casts doubt on his judgment, reliability, and trustworthiness. I find AG ¶¶ 17(a) and 17(c) do not apply. I find AG ¶ 17(d) only partially applies because I am not convinced that Applicant’s conduct will not recur.

WHOLE PERSON CONCEPT

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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(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 the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines B, J and E in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant is 25 years old. His wife is a citizen of Afghanistan. He has other relatives who are citizens and residents of Afghanistan. He failed to meet his burden of persuasion to mitigate the security concerns raised by his family. He has a history of not following rules. His explanations for repeatedly failing to abide by the law and for failing to disclose pertinent issues on his security clearance application were not credible. Overall, the record evidence leaves me with serious questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline B, foreign influence, Guideline J, criminal conduct, and Guideline E, personal conduct.

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, Guideline B: AGAINST APPLICANT

Subparagraphs 1.a-1.c: Against Applicant

Paragraph 2, Guideline J: AGAINST APPLICANT

Subparagraph 2.a: For Applicant Subparagraphs 2.b-2.d: Against Applicant Subparagraph 2.e: For Applicant Subparagraphs 2.f-2.l: Against Applicant

Paragraph 3, Guideline E: AGAINST APPLICANT

Subparagraphs 3.a-3.e: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Carol G. Ricciardello Administrative Judge

FOOTNOTES

1 Department Counsel’s Administrative Notice request and supporting Government documents are at Item 13. 2 Answer to SOR; Answer to FORM; Item 12. 3 Item 12 at 14. 4 Answer to SOR; Answer to FORM. 5 Answer to FORM. 6 This is not a criminal offense. 7 Answer to SOR; Answer to FORM; Item 12. 8 Item 12. 9 Item 4. 10 Bold emphasis in the e-QIP. 11 Answer to SOR. 12 Answer to SOR. 13 Answer to SOR. 14 Answer to SOR. 15 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004).