ISCR Case No. 14-06930.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) --- ) ISCR Case No. 14-06930 ) Applicant for Security Clearance )

For Government: Richard Stevens, Esquire, Department Counsel For Applicant: Jacob T. Ranish, Esquire

03/24/2016 ______________

______________

GALES, Robert Robinson, Administrative Judge:

Applicant has mitigated the security concerns arising from his criminal conduct and personal conduct. Eligibility for a security clearance and access to classified information is granted.

Statement of the Case

On March 6, 2014, Applicant applied for a security clearance and submitted an Electronic Questionnaire for Investigations Processing (e-QIP) version of a Security Clearance Application.1 On May 20, 2015, the Department of Defense (DOD) Consolidated Adjudication Facility (CAF) issued a Statement of Reasons (SOR) to him, pursuant to 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 and modified (Directive); and the Adjudicative Guidelines for Determining Eligibility For Access to Classified Information (December 29, 2005) (AG) for all adjudications and other determinations made under the Directive. The SOR alleged security concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) and detailed reasons why the DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The SOR recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

Applicant received the SOR on June 16, 2015. In a sworn written statement, inadvertently dated June 17, 2014,2 Applicant responded to the SOR allegations and requested a hearing before an administrative judge. Department Counsel indicated the Government was prepared to proceed on September 9, 2015. The case was assigned to me on September 18, 2015. A Notice of Hearing was issued on September 28, 2015, and I convened the hearing, as scheduled, on October 28, 2015.

During the hearing, five Government exhibits (GE 1 through GE 5) and nine Applicant exhibits (AE A through AE I) were offered into evidence. Applicant objected to GE 5, based on relevance. That objection was overruled, and GE 5 was admitted into evidence. The remaining exhibits were admitted into evidence without objection. Applicant and two witnesses testified. The hearing transcript (Tr.) was received on November 5, 2015. I kept the record open to enable Applicant to supplement it. Applicant took advantage of that opportunity. He submitted one additional document, which was marked as AE J and admitted into evidence without objection. The record closed on November 12, 2015.

In his Answer to the SOR, Applicant admitted the factual allegations pertaining to criminal conduct (¶ 1.a.) as well as a portion of the allegation pertaining to personal conduct (¶ 2.a.). He denied the remaining portion of ¶ 2.a. Applicant's admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 30-year-old employee of a defense contractor. He has been serving as an unmanned aerial vehicle pilot since August 2013.3 He was previously a pilot and helicopter mechanic.4 Applicant was unemployed from August 2007 until February 2008, and from June 2013 until August 2013.5 A 2003 high school graduate, Applicant attended a university, a technical college, and an aviation academy as a part- time student over a several-year period, but did not receive a degree.6 He enlisted in the U.S. Air Force Reserve in August 2003, and served on active duty until he was honorably discharged as a senior airman (E-4) in August 2007. He entered the inactive reserve where he remained until August 2011. During his period of military service, he was awarded the Air Force Good Conduct Medal and the Global War on Terrorism Service Medal.7 Applicant was granted a secret security clearance in August 2004.8 He has never been married.9

Criminal Conduct

Applicant was sent to pre-deployment flight training in November 2012. While at the training location, Applicant met a young woman through an Internet dating website and they started casually dating. During the course of their budding relationship, she informed him that she was in the process of getting her divorce finalized from her husband, a U.S. Marine, whom she characterized as bipolar, physically abusive, and violent. Her marital-status characterization turned out to be untrue. On Applicant’s first date with his new friend they went to a movie theater. Unbeknownst to Applicant, his girlfriend was being stalked, and Applicant was surprised when a man, roughly six foot two or more, sat down next to him and introduced himself as her husband. Applicant felt very uncomfortable. The husband and wife exited the theater to talk, while Applicant remained behind. Approximately ten minutes after the confrontation, Applicant joined his girlfriend outside when she informed him that her husband had left. Sometime after that meeting, Applicant’s girlfriend told him that her husband owned a gun.

The girlfriend’s husband sent Applicant voicemails. On Saturday, December 15, 2012, Applicant and his girlfriend were in Applicant’s hotel room watching television. He had not consumed any alcohol that day. The telephone rang and Applicant answered it. The caller was his girlfriend’s husband, but Applicant did not realize that fact at the time. When he was asked to come to the front desk, Applicant responded that he would be there in a few minutes. Finally realizing who the caller might be, Applicant became more guarded. Before Applicant could exit his room, he heard a normal knock on the door followed by a “violent pounding.” The husband had gotten the room number and was demanding that Applicant open the door. Applicant construed the husband’s comments as threatening in nature, and he felt trapped. His girlfriend ran into the bathroom with her cell phone, and Applicant assumed she was calling the police. Harsh comments between Applicant and the husband were exchanged and, still feeling threatened, Applicant grabbed his pistol and chambered a round. He did not tell the husband that he had a gun and never brandished it at him. The girlfriend left, saying she would handle the situation. The husband had called the police and he followed her. Thinking the police were on the way, Applicant exited his room. The gun was in his waistband on his back. When the police arrived, statements were taken.10

Based on the statements, the police arrested Applicant and charged him with (1) disorderly conduct with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so by recklessly handling, displaying or discharging a deadly weapon or dangerous instrument – a felony; and (2) threatening or intimidating by threatening or intimidating by word or conduct to cause physical injury to another person or serious damage to the property of another – a misdemeanor.11

Applicant spent the night in jail and was released the following afternoon. On the first workday following his arrest, Applicant informed his supervisor what had occurred.12 When Applicant went before the judge one day later, prior to an arraignment, he was informed that no complaints had been filed, and the charges were dismissed.13 The weapon was released to Applicant.14

Aside from this one incident in December 2012 – nearly two and one-half years before the SOR was issued – Applicant had never been involved in any incidents involving the police or physical fights or road rage.15 Nor is there any evidence of such incidents subsequent to December 2012. Applicant received a private pilot’s license in 2005 when he was 20-years old; he has a commercial multi-engine pilot’s license; and he is licensed to carry a concealed weapon by several states. All of his licenses required a clean background check.16 He no longer has any relationship with his former girlfriend.17

Personal Conduct

On March 6, 2014, when Applicant completed and submitted his e-QIP online, he responded to a question pertaining to his police record. One of the questions in Section 22 – Police Record, was if in the past seven years he had been arrested by any police officer, sheriff, marshal or any other type of law enforcement official. Applicant answered “no.”18 Applicant certified that the response to that question was true, complete, and correct to the best of his knowledge and belief, but the response to that question was, in fact, false, for at that time, Applicant had been arrested in December 2012, as discussed above.

Applicant subsequently denied that his omission was intentional. He contended that, when he rushed to complete his e-QIP, he was deployed to a small forward operating base in a very dangerous area in Afghanistan,19 and he failed to carefully read the question. His security clearance was about to expire, and he was advised that if he did not complete the e-QIP as soon as possible, it would expire and he would have to be sent home. He was also of the erroneous impression that his arrest was not legally reportable since the judge dismissed the case against him and his attorney advised him that everything was just “going away.” He assumed that this meant that the arrest never happened from a legal perspective. Applicant further noted that he had promptly notified his employer at the time, and was told that they “didn’t care as long as the charges were dismissed.” Applicant requested a Joint Personnel Adjudication System (JPAS) record to see if his former employer had submitted a report, but his request has still not been honored.20

Applicant had previously completed a Questionnaire for National Security Positions (SF 86) by hand in January 2003,21 and that SF 86 contained similar, but not identical questions. In that document, Applicant correctly answered “no” to earlier criminal conduct, but added several traffic infractions in an effort to be forthright. Applicant responded that he had completed that SF 86 ten years earlier when he was 17-years old. Applicant noted that at the time of his arrest there were several of his classmates around and when he went to Afghanistan, a majority of his colleagues were aware of the December 2012 incident. Applicant denied that he falsified his response, and he does not consider himself as one who lies or cheats. I accept Applicant’s explanation.

Work Performance and Character References

Applicant’s direct supervisor, who is also the site lead for the detachment in Afghanistan, has worked with Applicant at two locations. He characterized Applicant as a valuable member of the crew who has proven to be punctual and dependable in very part of the day-to-day operations while operating in “harsh environments.” He has never witnessed an “unsavory behavior” by Applicant. He recommends Applicant for a security clearance.22 An instructor operator who worked with Applicant in Afghanistan considers Applicant to be extremely mature, reliable, trustworthy, and a man of his word. Applicant would often extend his shift without prompt, doing whatever was necessary to complete the job.23 Another instructor and Applicant were in the same training class, and they deployed together to several different foreign and austere environments for missions in support of ground troops. He noted that Applicant excelled at his job and always showed initiative, good work ethic, and good moral fiber.24 A former coworker, who has known Applicant since 2009 or 2010, characterized him as pretty easy-going, with a good sense of humor. Applicant never exhibited any anger or anything unethical. Applicant is absolutely not a liar. He trusts Applicant.25

Two former classmates (one since high school and one since aviation academy) believe Applicant is ethical, honest, and responsible. Applicant is not an angry or violent person, and he does not cheat, lie, or steal. He is “a straight-up guy.” The December 2012 incident seems out of character.26 Applicant’s mother is notably proud of her son: “This is not a letter telling you what a good son I have. This is a letter to let you know what a dedicated and devoted man he is. He is a man who loves his country and has gone to great lengths to serve his country.”27

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.”28 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. The President has authorized the Secretary of Defense or his designee to grant an applicant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”29

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

An administrative judge need not view the guidelines as inflexible, ironclad rules of law. Instead, acknowledging 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. 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 meaningful decision.

In the decision-making process, facts must be established by “substantial evidence.”30 The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR. Once the Government has produced substantial evidence of a disqualifying condition, under Directive ¶ E3.1.15, the applicant has the burden of persuasion to present evidence in refutation, explanation, extenuation or mitigation, sufficient to overcome the doubts raised by the Government’s case. The burden of disproving a mitigating condition never shifts to the Government.31

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 as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to 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. Furthermore, “security clearance determinations should err, if they must, on the side of denials.”32

Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”33 Thus, nothing in this decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has or has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. 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.

Guideline J, Criminal Conduct

The security concern under the guideline for Criminal Conduct 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.”

The guideline notes a condition that could raise security concerns. Under AG ¶ 31(a), “a single serious crime or multiple lesser offenses” is potentially disqualifying. In December 2012, the police arrested Applicant and charged him with (1) disorderly conduct with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so by recklessly handling, displaying or discharging a deadly weapon or dangerous instrument – a felony; and (2) threatening or intimidating by threatening or intimidating by word or conduct to cause physical injury to another person or serious damage to the property of another – a misdemeanor. AG ¶ 31(a) has been established.

The guideline also includes examples of conditions that could mitigate security concerns arising from criminal conduct. Under AG ¶ 32(a), the disqualifying condition may be mitigated where “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.” Similarly, AG ¶ 32(c) may apply where there is “evidence that the person did not commit the offense.” In addition, where “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,” AG ¶ 32(d) may apply.

AG ¶¶ 32(a), 32(c), and 32(d) apply. Applicant’s actions nearly two and one-half years before the SOR was issued, and over three years ago, in meeting with a married woman whom he met through an Internet dating website were initially innocent. However, by continuing that relationship upon learning that she was married to a jealous and violent husband and not in the final stages of a divorce as she had claimed, he acted foolishly. Because of that continuing relationship, Applicant felt threatened when the husband came banging on his hotel room door. He chambered a round in his pistol, but did not brandish the weapon at the husband, who remained on the other side of the door. Applicant’s actions were not criminal in nature. There was no evidence that he handled his properly-licensed weapon recklessly or that he displayed it. There was no evidence that Applicant discharged the weapon. His exchange of harsh comments did not constitute a threat or intimidation to cause physical injury to the husband. Nevertheless, based on the evidence gathered by the police on December 15, 2012, that Applicant had threatened his girlfriend’s husband and had chambered a round in his pistol, the police arrested him. However, by dismissing all pending charges against him before arraignment, the prosecutor essentially acknowledged that the charges were unfounded, and that Applicant did not commit the offenses charged. That conclusion was reinforced when the pistol was returned to Applicant.

Even assuming that a crime had been committed, there is substantial evidence of successful rehabilitation, including but not limited to the passage of time without recurrence of any criminal activity, expressions of remorse, and a good employment record. After comparing Applicant’s actions with his reputation, it appears that his alleged criminal actions were out of character for him. Having learned from his experience, it is unlikely that such behavior will recur, and it no longer casts doubt on his reliability, trustworthiness, or good judgment.

Guideline E, Personal Conduct

The security concern relating to the guideline for Personal Conduct is set out in AG ¶ 15:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified 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.

The guideline notes a condition that could raise security concerns. Under AG ¶ 16(a), it is potentially disqualifying if there is

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.

As noted above, On March 6, 2014, when Applicant completed and submitted his e-QIP online, he responded to a question pertaining to his police record. One of the questions in Section 22 – Police Record, was if in the past seven years he had been arrested by any police officer, sheriff, marshal or any other type of law enforcement official. Applicant answered “no.” Applicant certified that the response to that question was true, complete, and correct to the best of his knowledge and belief, but the response to that question was, in fact, false for at that time, Applicant had been arrested in December 2012, as discussed above.

Applicant’s response provides sufficient evidence to examine if his submission was a deliberate falsification, as alleged in the SOR, or merely the result of rushing to complete the e-QIP and misunderstanding on his part. Applicant subsequently denied that his omission was intentional. He contended that when he rushed to complete his e- QIP he was deployed to a small forward operating base in a very dangerous area in Afghanistan and he failed to carefully read the question. His security clearance was about to expire, and he was advised that if he did not complete the e-QIP as soon as possible, it would expire and he would have to be sent home. He was also of the erroneous impression that his arrest was not legally reportable since the judge dismissed the case against him and his attorney advised him that everything was just “going away.” He assumed that this meant that the arrest never happened from a legal perspective.

I have considered Applicant’s educational background and professional career in analyzing his actions. Applicant is an intelligent, talented, and experienced individual, and his explanation, under the circumstances, should be afforded some weight. His confusion and resultant actions are considered aberrant behavior out of character for him. His position is reasonable. Furthermore, there would be little incentive for Applicant to falsify his response as his employer already knew of the incident, and Applicant assumed it had been reported to JPAS. As it pertains to the alleged deliberate falsification, AG ¶ 16(a) has not been established, as the allegation is unsubstantiated.

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. Moreover, I have evaluated the various aspects of this case in light of the totality of the record evidence and have not merely performed a piecemeal analysis.34

There is some evidence against mitigating Applicant’s conduct. In late 2012, while in pre-deployment training, Applicant met a young woman through an Internet dating website. Although she claimed to be in the final stages of a divorce, she was not. Nevertheless, he continued the relationship upon learning that she was married to a jealous and violent husband and not in the final stages of a divorce. He was involved in two confrontations with the husband, and during the last one, harsh words were exchanged behind closed doors and Applicant, feeling threatened, chambered a round in his pistol. He was subsequently arrested by the police and charged with a felony and a misdemeanor. In March 2014, when asked in his e-QIP if he had been arrested within the past seven years, he answered “no,” a response that was false, considering the 2012 arrest.

The mitigating evidence under the whole-person concept is more substantial. Applicant immediately informed his supervisor that he had been arrested. All pending charges against him were dismissed before arraignment, and the prosecutor essentially acknowledged that the charges were unfounded, and that Applicant did not commit the offenses charged. Applicant’s pistol was returned to him. Applicant was deployed to harsh environments in Afghanistan on three occasions: from March 2013 until June 2013; from December 2013 until November 2014; and from April 2015 until October 2015. He was scheduled to return to Afghanistan in October 2015 and remain there until April 2016. Applicant has an excellent reputation for honesty, trustworthiness, reliability, and good judgment. He has never displayed anger or violent behavior. Since the December 2012 incident, there has been no evidence of any criminal activity. It is unlikely that such behavior will recur, and it no longer casts doubt on his reliability, trustworthiness, or good judgment.

Under the evidence presented, I have no questions about Applicant’s reliability, trustworthiness, and ability to protect classified information. For all of these reasons, I conclude Applicant has mitigated the security concerns arising from his criminal conduct and personal conduct. See AG ¶ 2(a)(1) through AG ¶ 2(a)(9).

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 J: FOR APPLICANT

Subparagraph 1.a: For Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ ROBERT ROBINSON GALES Administrative Judge

1 GE 1 (e-QIP, dated March 6, 2014). 2 It should be noted that the affidavit-form upon which Applicant was to choose either a hearing or a decision based upon the administrative record, and list his contact information, and which the notary public was to sign, was a boilerplate preprinted for with “2014” furnished by the DOD CAF. 3 Tr. at 36. 4 GE 1, supra note 1, at 11-15. 5 GE 1, supra note 1, at 12-13, 16. 6 GE 1, supra note 1, at 9-11; Applicant’s Answer to the SOR, dated June 17, 2015, at 1. 7 AE D (Certificate of Release or Discharge from Active Duty (DD Form 214), dated August 4, 2007); GE 2 (Personal Subject Interview, dated July 14, 2014), at 5; Tr. at 37-38. 8 GE 1, supra note 1, at 28-29. 9 GE 1, supra note 1, at 20. 10 Tr. at 41-52, 66-70. 11 GE 4 (Police Offense Report, dated December 15, 2012). 12 Tr. at 71-72. 13 Tr. at 73; GE 3 (Federal Bureau of Investigation (FBI) Identification Record, dated March 12, 2014), at 4. See also AE H (State Criminal Code – Justification; Use of Force in Crime Prevention). 14 GE 4 (Property Invoice, dated December 17, 2012). 15 Tr. at 40. 16 Tr. at 38-40, 44-45; AE D (Licenses, various dates); AE I (State Revised Statute – Concealed Weapons; Qualification; Application; Permit to Carry). 17 Applicant’s Answer to the SOR, supra note 6, at 1. 18 GE 1, supra note 1, at 26. 19 Applicant was deployed to Afghanistan on three occasions: from March 2013 until June 2013; from December 2013 until November 2014; and from April 2015 until October 2015. He was scheduled to return to Afghanistan in October 2015 and remain there until April 2016. Tr. at 86-88. 20 Tr. at 55-58; Applicant’s Answer to the SOR, supra note 6, at 1-2. 21 GE 5 (SF 86, dated January 16, 2003). 22 AE A (Character Reference, undated). 23 AE B (Character Reference, undated). 24 AE C (Character Reference, dated June 22, 2015). 25 Tr. at 32-35. 26 Tr. at 27-30; AE J (Character Reference, dated October 31, 2015). 27 AE E (Character Reference, dated October 8, 2015). 28 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 29 Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified. 30 “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “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). 31 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 32 Egan, 484 U.S. at 531 33 See Exec. Or. 10865 § 7. 34 See U.S. v. Bottone, 365 F.2d 389, 392 (2d Cir. 1966); See also ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).