1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 10-10419 ) ) Applicant for Security Clearance Appearances For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ LYNCH, Noreen, A., Administrative Judge: The Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) alleging security concerns arising under Guideline F (Financial Considerations), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct). The SOR was not dated. 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 (AG) implemented in September 2006. Applicant timely answered the SOR and elected to have his case decided on the record in lieu of a hearing. Department Counsel submitted the Government’s written case on November 7, 2011. Applicant received a complete file of relevant material (FORM) on November 18, 2011, and was provided an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s case. Applicant did not submit a response. The case was assigned to me on January 23, 2011. Based on a review of the case file, eligibility for access to classified information is denied. 2 Findings of Fact In his answer to the SOR, Applicant admitted the factual allegations under Guideline F (Financial Considerations), Guideline J (Criminal Conduct), and under Guideline E (Personal Conduct). Applicant is a 27-year-old employee of a defense contractor. He received a certificate from a technical school in 2003. He is married and has two children. Applicant has worked for his current employer since January 2004. This is his first application for a security clearance. Financial Considerations Applicant admits to 27 delinquent debts alleged in the SOR in an amount of approximately $37,000. (Item 4) The collection accounts include a 2005 vehicle repossession, student loans, and a 2009 vehicle repossession. He has not provided any information concerning payments on any of the delinquent debts. Applicant states that his financial problems began when he was in school in late 2002 until 2003. However, the majority of Applicant’s debts do not arise out of the 2002- 2003 period. The car purchased in 2004 for $16,000 was repossessed in April 2005. In July 2006, Applicant and his wife signed for a gym membership. Within six months, the account was delinquent. In December 2007 or 2008, Applicant’s wages were garnished in the amount of $100 per week for failure to pay his student loans. In 2008, Applicant purchased another vehicle, which was repossessed in March 2009. (Item 8) Applicant has been steadily employed in his current position since January 2004. He did not present any information that he was unemployed other than not having steady hours when he was in technical school. (Item 6). In September 2011, Applicant’s budget showed a negative monthly remainder of $450. His budget does not include any payments toward his student loans, which came out of forbearance in April 2011. He notes his net monthly income is $3,648. His spouse does not work outside their home. (Item 6) Applicant acknowledged and disclosed his debts to the Government. During his July 2010, interview with investigators, he stated he intends to pay his debts. He has not furnished any receipts for any payments or any structured plan to repay the SOR debts. Criminal Conduct Applicant has three criminal arrests three and convictions from 2005 until 2007. (Item 5) He admits that he committed the acts. (Item 4) He is currently on probation for a felony conviction until May 2012. He is also required to register as a sex offender until the year 2022. 3 Applicant’s explanation for his 2005 arrest and charge for solicitation of a minor for sexual assault, 3 degree felony, for which he pled guilty in May 2007, is hisrd engagement in chat rooms. He was 21 and he believed the female was 18 or 19. He was unmarried. He wanted to “hang out with her.” (Item 6) He met her at a pool and was arrested for the above charge. He did not know that he had been corresponding with an undercover police officer. Applicant was sentenced to five years of community supervision (completion date May 2012). He was fined $2,500 and ordered to register as a sex offender. He was required to complete 160 hours of community service and participate in a sex offender treatment program. In May 2007, one week after he was placed on probation for the felony offense, discussed above, Applicant was arrested and charged with theft after he and his wife attempted to steal groceries. He pled guilty to the charge and was placed on one year probation. (Item 6) In August 2007, Applicant was arrested and charged with driving with an invalid license. He pled guilty to the offense and was ordered to serve three days in confinement and pay court costs. The invalid license was due to Applicant not renewing his license and having the required “sex offender” noted on the driver’s license within 30 days of sentencing. Applicant claims this was an error on the part of the Department of Motor Vehicles. There is no court documentation in the record to substantiate this claim. Personal Conduct Applicant admitted the information that was raised under Criminal Conduct. The SOR bases the Personal Conduct on the three allegations to which Applicant admitted. His lack of financial responsibility in dealing with his delinquent debts since 2003, and his criminal conduct cast doubt on his judgment and reliability. Policies When evaluating an applicant’s suitability for a security clearance, an administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, they are applied in conjunction with the factors listed in the adjudicative process. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” An 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 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995). 1 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988). 2 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). 3 See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive 4 information), and EO 10865 § 7. ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). 5 Id. 6 4 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. The Government must present evidence to establish controverted facts alleged in the SOR. 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. . . .” The burden of proof is something less than a1 preponderance of evidence. The ultimate burden of persuasion is on the applicant. 2 3 A person seeking access to classified information enters into a fiduciary relationship with the Government based on 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 the applicant may deliberately or inadvertently fail to protect classified information. Such decisions entail a certain degree of legally permissible extrapolation of 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.” “The clearly consistent standard indicates that security clearance4 determinations should err, if they must, on the side of denials.” Any reasonable doubt5 about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such information. The decision to deny an individual a6 security clearance does not necessarily reflect badly on an applicant’s character. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense established for issuing a clearance. Analysis Guideline F, Financial Considerations AG ¶ 18 expresses the security concern pertaining to financial considerations: 5 Failure or inability to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. An individual who is financially over- extended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts. AG ¶ 19 describes conditions that could raise a security concern and may be disqualifying: (a) inability or unwillingness to satisfy debts; (b) indebtedness caused by frivolous or irresponsible spending and the absence of any evidence of willingness or intent to pay the debt or establish a realistic plan to pay the debt; (c) a history of not meeting financial obligations; (d) deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, and other intentional financial breaches of trust; (e) consistent spending beyond one's means, which may be indicated by excessive indebtedness, significant negative cash flow, high debt-to- income ratio, and/or other financial analysis; (f) financial problems that are linked to drug abuse, alcoholism, gambling problems, or other issues of security concern; (g) failure to file annual Federal, state, or local income tax returns as required or the fraudulent filing of the same; (h) unexplained affluence, as shown by a lifestyle or standard of living, increase in net worth, or money transfers that cannot be explained by subject's known legal sources of income; and (i) compulsive or addictive gambling as indicated by an unsuccessful attempt to stop gambling, "chasing losses" (i.e. increasing the bets or returning another day in an effort to get even), concealment of gambling losses, borrowing money to fund gambling or pay gambling debts, family conflict or other problems caused by gambling. 6 Applicant admits to delinquent debts in the amount of approximately $37,000. The debts are confirmed in his credit reports. They span from 2003 until the present time. Consequently, the evidence is sufficient to raise disqualifying conditions ¶¶ 19(a) and 19(c). AG ¶ 20 provides conditions that could mitigate security concerns: (a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; (b) the conditions that resulted in the financial problem were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the individual acted responsibly under the circumstances; (c) the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control; (d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; (e) the individual has a reasonable basis to dispute the legitimacy of the past-due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue; and (f) the affluence resulted from a legal source of income. Applicant has good intentions to pay his delinquent debts. However, he has not provided any information to show that he has paid the delinquent debts or has a plan to repay the debts. He has not reported financial counseling. He has been gainfully employed since 2004, and has not raised any circumstances beyond his control that would contribute to his financial problems. None of the mitigating conditions apply. Guideline J, Criminal Conduct AG ¶ 30 expresses the security concern pertaining 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.” AG ¶ 31 describes conditions that could raise a security concern and may be disqualifying: 7 (a) a single serious crime or multiple lesser offenses; (b) discharge or dismissal from the Armed Forces under dishonorable conditions; (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; (d) individual is currently on parole or probation; and (e) violation of parole or probation, or failure to complete a court- mandated rehabilitation program. Applicant’s admissions and the evidence of arrests and convictions from 2005 until 2007 are sufficient to raise AG ¶¶ 31(a) and (c). Applicant is currently on probation until May 2012. AG ¶ 31(d) is also applicable. AG ¶ 32 provides four conditions that could mitigate security concerns: (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; (b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person's life; (c) evidence that the person did not commit the offense; 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. After reviewing the mitigating conditions, I find that none of them fully apply in this case. Applicant’s behavior occurred between 2005 and 2007. He acknowledged that the last incident was in 2007. Although four years have elapsed, Applicant has not provided information establishing that he is rehabilitated. He is still on probation. There is no information in the record concerning completion of his community service. I find that he has not mitigated the security concern under criminal conduct. Guideline E, Personal Conduct AG ¶ 15 expresses the security concern pertaining to personal conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions 8 about an individual’s reliability, trustworthiness, and ability to protect classified information. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying: (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; (b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative; (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information; (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information. This includes but is not limited to consideration of: (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information; (2) disruptive, violent, or other inappropriate behavior in the workplace; (3) a pattern of dishonesty or rule violations; and (4) evidence of significant misuse of Government or other employer's time or resources. 9 (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, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group; (f) violation of a written or recorded commitment made by the individual to the employer as a condition of employment; and (g) association with persons involved in criminal activity. Applicant’s behavior concerning his financial responsibility and his criminal conduct shows lack of judgment, reliability and trustworthiness over a period of years. AG ¶¶ 16(d) and (e). His conduct shows a pattern of poor judgment. He did disclose his financial problems and his criminal conduct on his security clearance application to his credit. However, absent any significant evidence of mitigation, he has not met his burden. AG ¶ 17 provides conditions that could mitigate security concerns: (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; (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; (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; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; 10 (f) the information was unsubstantiated or from a source of questionable reliability; and (g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. Applicant admitted his financial delinquencies and his criminal conduct on his security clearance application. He has not presented any other information to persuade me that he has mitigated personal conduct concerns. I have doubts about his judgment and reliability. After considering the mitigating conditions outlined in AG ¶ 17, I conclude Applicant has not mitigated the security concern under personal conduct. 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 an 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. As noted above, the ultimate burden of persuasion is on the applicant seeking a security clearance. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, as well as the whole-person factors. Applicant has a history of criminal conduct beginning in 2005 through 2007 which includes arrests, convictions, guilty pleas, and probation. Granted, the last offense was in 2007. However, he is still on probation. The choices he made over the years indicate lack of trustworthiness. Applicant has not provided any information to show that he is a changed person or that he has taken action to resolve his delinquent SOR debts. At this point, I have doubts about his judgment and reliability. Any doubts must be resolved in favor of the Government. Applicant has not met his burden in this case. He has not mitigated the 11 security concerns under financial consideration, criminal conduct, and personal conduct. Clearance is denied. 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 F: AGAINST APPLICANT Subparagraphs 1.a-1.n: Against Applicant Paragraph 2, Guideline J: AGAINST APPLICANT Subparagraphs 2.a-2.c: Against Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraph 3.a: 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 a security clearance. Clearance is denied. NOREEN A. LYNCH. Administrative Judge