DATE: July 20, 2001

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SSN: ---------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

RICHARD A. CEFOLA

APPEARANCES

FOR GOVERNMENT

Martin H. Mogul, Department Counsel

FOR APPLICANT

Pro Se

STATEMENT OF THE CASE

On May 9, 2001, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

Applicant filed an Answer to the SOR on or about May 24, 2001.

Applicant elected to have this case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) on June 7, 2001. Applicant was instructed to submit objections or information in rebuttal, extenuation or mitigation within 30 days of receipt of the FORM. Applicant received her copy on June 12, 2001, and submitted nothing in reply. The case was received by the undersigned for resolution on July 17, 2001. The issues raised here are whether the Applicant's personal conduct militates against the granting of a security clearance.

The following Findings of Fact are based on Applicant's Answer to the SOR, and the File of Relevant Material. The Applicant is 47 years of age, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant.

Guideline E - Personal Conduct

1.a. In answering question 24 on her February 2000, Security Clearance Application (Standard Form 86), the Applicant knowingly and wilfully failed to disclose her arrest in 1969 or 1970 on a charge of possession of marijuana (Government Exhibit (GX) 4 at page 10, and GX 5 at page 3). The Applicant avers that she thought she "only had to list information covering seven years" (GX 5 at page 3). This explanation is not believable as the question clearly asks "Have you ever been charged with . . . any offense related to . . . drugs?" (GX 4 at page 10, emphasis supplied).

1.b. In answering question 26 on her February 2000, Standard Form 86, the Applicant knowingly and wilfully failed to disclose that in April of 1999 she was charged with Possession of a Completed Check with Intent to Utter and Pass, a misdemeanor (GX 4 at page 11, GX 5 at page 2, and GX 8). She avers that she did not think she was arrested as "the charge against me was dismissed" (GX 5 at page 2). This explanation avoids the question posited, which states, in part, "have you been arrested for, charged with, or convicted of any offense . . . " (GX 4 at page 11, emphasis supplied). By her own admission, she knew she had been charged (GX 5 at page 2).

1.c. In answering question 36 on her February 2000, Standard Form 86, the Applicant knowingly and wilfully failed to disclose that she had four liens placed against her property, in 1994, in 1995, in 1996, and again in 1997 (GX 4 at page 12, GX 5 at page 4, and GX 6 at pages 1~2). She avers that she did not list them as they were paid off, and she was "confused as to the timeframe(sic)" This explanation is also not believable. The question asks, in part, "In the last 7 years, have you had a lien placed against your property . . ." (GX 4 at page 12, emphasis supplied). All of the liens clearly were within seven years of the Applicant executing her Standard Form 86, the last lien being only three years prior. She listed no liens at all, and simply answered "NO" to the posited question (id).

Mitigation

The Applicant offers little in the way of mitigation. In her answer to the SOR, she merely admits each and every allegation without further explanation.

Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are:

Condition that could raise a security concern:

2. The deliberate omission, concealment; or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications . . . ;

Conditions that could mitigate security concerns:

None.

As set forth in the Directive, each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate:

a. Nature and seriousness of the conduct and surrounding circumstances.

b. Frequency and recency of the conduct.

c. Age of the applicant.

d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved.

e. Absence or presence of rehabilitation.

f. Probability that circumstances or conduct will continue or recur in the future."

The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence that are speculative or conjectural in nature.

The Government must make out a case under Guidelines E (personal conduct), which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and her ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance.

Unacceptable personal conduct is conduct involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations; and criminal conduct also creates doubt about a person's judgment, reliability and trustworthiness. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places.

When asked three separate questions on her February 2000, Standard Form 86, the Applicant answered "NO" to the posited questions. She answered "NO" despite having been charged with a drug offense in 1969 or 1970, despite having been charged with a misdemeanor the prior year in 1999, and despite having four liens placed against her property. There was also clearly no prompt, good faith effort to correct these falsifications, as she only admitted her mis-statements more than five months later in a sworn statement. Guideline E is therefore found against the Applicant.

Considering all the evidence, the Applicant has not rebutted the Government's case regarding her personal conduct. The Applicant has thus not met the mitigating conditions of Guideline E, and of Section F.3. of the Directive. Accordingly, she has not met her ultimate burden of persuasion under Guideline E.

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: AGAINST THE APPLICANT

a. Against the Applicant.

b. Against the Applicant.

c. Against the Applicant.

Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

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