1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-00721 ) Applicant for Security Clearance ) Appearances For Government: Richard Stevens, Esq., Department Counsel For Applicant: Pro Se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant failed to mitigate the Government’s security concerns under Guidelines F, Financial Considerations; J, Criminal Conduct; G, Alcohol Consumption; and E, Personal Conduct. Applicant’s eligibility for a security clearance is denied. Statement of the Case On July 20, 2011 and October 5, 2011, the Defense Office of Hearings and Appeals (DOHA) issued Applicant Statements of Reasons (SOR) detailing security concerns under Guidelines F, J, G and E. The actions were 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) effective within the Department of Defense on September 1, 2006. Applicant answered the SORs on August 4, 2011, and October 19, 2011, and requested a hearing before an administrative judge. The case was originally assigned to 2 another administrative judge on November 22, 2011, and was reassigned to me on December 7, 2011. DOHA issued a Notice of Hearing on December 15, 2011. An amended Notice of Hearing was issued on December 29, 2011, changing the time of the hearing. I convened the hearing as scheduled on January 23, 2012. The Government offered Exhibits (GE) 1 through 8, and they were admitted into evidence without objections. Applicant offered Exhibits (AE) A through K, and they were admitted into evidence without objections. DOHA received the hearing transcript (Tr.) on January 31, 2012. Findings of Fact Applicant admitted SOR allegations ¶¶ 1.a, 1.b, 1.c, 1.e, 1.f, 2.a, 2.c, 2.d, 2.f, 2.g, 2.h, 2.j, 2.k, 2.l, 2.n, 2.o, 2.q, and 3.b. He denied the remaining allegations. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 57 years old. He has never been married. He has a daughter who is 32 years old. He did not graduate from high school. He has some technical training. He is an auto mechanic and has worked for a federal contractor in Iraq for periods of time from 2005 to 2008.1 There are 13 delinquent debts alleged in the SOR totaling approximately $49,418. Of those debts there are two federal tax liens totaling $37,913 that Applicant admitted he owed (SOR ¶¶ 1.e and 1.f). He also owes two state tax liens totaling approximately $8,926 (SOR ¶¶ 1.b and 1.c). He thinks the debts may be for tax years 2006 or 2007, but was uncertain. In April 2011, he contacted a commercial tax consultant. Other than a one-page consultation report from the consultant with no substantive information, Applicant did not provide other evidence. He was told he owed the taxes by the tax consultant. He explained the tax consultant is going to try and have the tax debts placed in a non-collectible status because Appellant believes he is disabled. He does not dispute he owes the tax debts. He has not contacted the tax consultant in the past four months. Applicant believed he was exempt from paying taxes while he was working overseas. He admitted that he earned a salary of $120,000 at one time while working overseas. He also stated that he asked his daughter to file his tax returns for him while he was overseas, but she did not do so. Applicant admitted that when he returned from Iraq he was unable to obtain a loan for a mortgage to buy a house due to his poor credit, so he purchased a house with cash for $84,000. He did not use his earnings to pay his delinquent taxes. He does not have the money now to pay his tax debts. He did not provide any other information on what actions he has taken to resolve the delinquent tax debts.2 Regarding the remaining nine debts, Applicant did not provide any evidence of actions he has taken to resolve them. The judgment alleged in SOR ¶ 1.g ($315) 1 Tr. 29, 33, 94. 2 Tr. 41-51, 98-103, 115; GE 3, 4. 3 Applicant disputed, but did not provide any evidence to show actions he has taken to resolve the judgment.3 The judgment in SOR ¶ 1.h ($459) is for a truck that Applicant financed. He was unable to make the payments in 2000 and it was repossessed. He was unable to make the payments because he stated he was in jail. The amount owed is the deficiency judgment. Applicant has not paid the debt.4 Applicant agrees he likely owes the cable debt in SOR ¶ 1.a, but he does not have the money to pay it. He stated he is unsure of what the delinquent debts in SOR ¶¶ 1.a, 1.d, 1.i, 1.m are for. He did not provide any other information on actions he has taken to resolve the debts. The debts in SOR ¶¶ 1.j, 1.k, 1.l, and 1.m are for medical services. Applicant admitted he owed them, but does not have the money to pay them.5 Applicant has a long history of criminal offenses. He was arrested and charged in June 14, 1981, for aggravated assault. The charge was dismissed. He was arrested and charged with simple assault on June 18, 1981. He denied he committed the offense, but was found guilty. He did not serve a jail sentence. On April 28, 1994, Applicant was arrested and charged with simple assault and cruelty to children, a felony. He stated that he was taken to the police station and the charge was dismissed. Applicant was arrested in February 1990 and charged with simple assault-family violence. The offense was nolle prosequi. In August 1990, Applicant was charged with simple battery and theft by taking. He was convicted and sentenced to 12 months probation for the simple battery and was sentenced to three years probation for the theft by taking charge. He admitted he was charged with a felony. It appears he was found guilty of a misdemeanor battery and misdemeanor theft. He did not disclose the felony charge on his security clearance application. (SOR ¶¶ 2.a through 2.e)6 Applicant denies he was charged with aggravated assault, a felony, on December 25, 1992. He was acquitted of the charge.7 Applicant was arrested on January 17, 1997, and charged with interference with custody. It is unclear if the charge was dismissed or he was acquitted of the charge. Applicant was arrested on March 17, 1997 and charged with driving under the influence of alcohol (DUI). He admitted he was drinking alcohol at his friend’s house and drove a vehicle. He did not disclose this DUI offense on his security clearance application. He stated he failed to disclose it because he did the best he could in filling out the application. (SOR ¶¶ 2.f, 2g, 2.h).8 3 Tr. 51-56; GE 3, 4. 4 Tr. 34, 56-57. 5 Tr. 23-41, 57-59. 6 Tr. 32-34, 59-70; GE 6, 7, 8; AE G. 7 Tr. 70-71; GE 6, 7, 8. 8 Tr. 71-75; GE 6, 7, 8 4 Applicant was arrested on June 2, 1997, and charged with stalking and criminal trespass. He stated he was following his girlfriend in his car and was arrested. He pled guilty. On September 17, 1997, Applicant was arrested for “deposit account fraud/bad checks $499 or less and aggravated assault.” He stated he was convicted and received a 12-month suspended sentence. He was also fined and ordered to pay restitution. On October 9, 1997, he was arrested and charged with “deposit account fraud/bad checks $499 or less” and aggravated assault. He was convicted and given a 15-month suspended sentence, fined, and ordered to pay restitution. He paid the restitution.9 (SOR ¶¶ 2.i, 2.j, 2.k) Applicant was arrested in November 1999 and charged with DUI and a probation violation. He admitted he was drinking alcohol. He had an open container of alcohol in his car and was driving. He was on probation at the time. He stated he just was not thinking when he committed this offense. He was arrested again on February 19, 2000, and charged with a probation violation. He was convicted and given a 25-month suspended sentence. He was unable to pay the fine because he did not have the money. He admitted he committed the offense. On July 30, 2002, Applicant was charged with DUI and probation violation. He admitted he was convicted of the lesser offense of reckless driving and was sentenced to six months of probation and fined $800. On October 4, 2003, Applicant was arrested for DUI. He was convicted and sentenced to three days confinement, 12-months probation, community service, and he was ordered to attend DUI school. Applicant stated that he attended a rehabilitation program for 12 months that was not court ordered. (SOR ¶¶ 2.l, 2.m, 2.n, 2.o) Applicant admitted he did not drink alcohol while he was in the rehabilitation program because he was regularly tested. He later went to Iraq and did not drink alcohol while he was there. He stated that the lesson he learned while attending the rehabilitation program was that it was not good to drink and drive. He resumed drinking when he returned from Iraq in approximately 2008. He continues to drink alcohol on the weekends and consumes about a six pack of beer and a couple of mixed drinks. He stated he does not drive now after consuming alcohol. He does not believe he has an alcohol problem.10 On January 18, 2007, Applicant was arrested for disorderly conduct. He got in a fight with a friend over a gambling debt. In August 2010, Applicant was arrested and charged with reckless driving and improper lane change. He admitted he had been drinking alcohol in the afternoon and evening the day before he was arrested. He was arrested the following morning when he was following his girlfriend in his car and was stopped by the police. Applicant admitted that he was arrested and charged approximately five times for DUI or offenses that were alcohol-related. He admitted he has consumed alcohol other times and driven even though he was not stopped or arrested.11 9 Tr. 75-77; GE 6, 7, 8. 10 Tr. 32, 77-90, 94, 106; GE 6, 7, 8. 11 Tr. 90-96; 106-112; GE 6, 7, 8. 5 When Applicant completed his security clearance application on November 24, 2007, he responded “no” to question 23 that asked if he had ever been charged with or convicted of any offense related to alcohol. His explanation for failing to disclose all of his past alcohol offenses was that he believed the question was asking him about drugs and did not think it was about alcohol. He did disclose one offense: that he had been charged with DUI on August 2003. He did not disclose any of his other alcohol-related offenses. He explained he failed to disclose his past arrests, charges, and convictions for the preceding seven years because he did not understand the question and he was not trying to hide anything. In response to the SOR dated August 4, 2011, Applicant stated: “most of the DUI charges were dropped. The last charge was almost 10 years ago. I have had a clean record since.” Applicant was aware he had more recent alcohol- related offenses. I find he deliberately and intentionally failed to disclose his alcohol- related offenses.12 Applicant stated he will pay his delinquent debts. He stated he knows his record is bad. He does not believe he has an alcohol problem. He has not been employed since 2008. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines 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 12 Tr. 96-98. 6 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 to obtain 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 the applicant may deliberately or inadvertently fail to safeguard 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline F, Financial Considerations The security concern for Financial Considerations is set out in AG & 18: 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 overextended is at risk of having to engage in illegal acts to generate funds. The guideline notes several conditions that could raise security concerns. I have considered all of the disqualifying conditions under AG & 19 and the following three are potentially applicable: (a) inability or unwillingness to satisfy debts; (b) a history of not meeting financial obligations; and (g) failure to file annual Federal, state, or local income tax returns as required or the fraudulent filing of the same. Applicant failed to file his state and federal tax returns resulting in tax liens that are unpaid. He has a history of accumulating delinquent debts. Despite having money to 7 pay his liens and debts, he instead used it to purchase a house with cash. I find there is sufficient evidence to raise these disqualifying conditions. The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. The following mitigating conditions under AG ¶ 20 are potentially applicable: (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; and (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. Applicant has not taken action to resolve any of his debts and they are unresolved. The evidence does not support that his financial problems occurred under unique circumstances and are unlikely to recur. Applicant has had a long period of unemployment. However, at one point Applicant had a significant amount of savings to pay all of his debts, but chose to purchase a house for cash instead. I find his actions were not responsible under the circumstances. There is insufficient evidence to conclude there are clear indications the problem is being resolved or is under control. There is no evidence he received counseling or that he made a good-faith effort to repay the debts. Appellant disputes certain debts, but failed to provide a reasonable basis to dispute the legitimacy of the delinquent debts and documented proof to substantiate the basis of the dispute or evidence to resolve the issues. I find none of the mitigating conditions under AG ¶ 20 apply. 8 Guideline J, Criminal Conduct AG ¶ 30 sets out the security concern for 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 offense; and (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; Applicant has been arrested or charged five times with DUI or alcohol-related offenses. He has been arrested another 11 times for various criminal offenses from 1981 to 2010. He has pled guilty and been found guilty for various criminal offenses over the past 19 years. 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 a long history of criminal conduct spanning nineteen years. He clearly has difficulty abiding by the law. His most recent criminal arrest and charge were in August 2010 for reckless driving, and he admitted he had consumed alcohol prior to the arrest. There is insufficient evidence to conclude any of his multiple criminal offenses occurred under unique circumstances and they are unlikely to recur. There is insufficient evidence of successful rehabilitation. Applicant’s criminal conduct is a serious concern and casts doubt on his reliability, trustworthiness, and judgment. I find AG ¶¶ 32(a) and 32(d) do not apply. 9 Guideline G, Alcohol Consumption AG ¶ 21 expresses the security concern pertaining to alcohol consumption: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. I have considered all of the disqualifying conditions under AG ¶ 22 including: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; and (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; Applicant has five alcohol-related criminal arrests. He attended a rehabilitation program for a year. He resumed drinking alcohol after abstaining for a period of time. He continues to drink alcohol, despite the negative impact it has had on him. I find the above disqualifying conditions apply. I have also considered all of the mitigating conditions under AG ¶ 23 and the following potentially apply: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; (b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); and (d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program. 10 Applicant attended an alcohol rehabilitation program, but resumed consumption of alcohol after a period of time. He has a long history of alcohol use and numerous instances where it has had a negative impact on him. He does not believe he has an alcohol problem. He continues to consume alcohol. There is insufficient evidence to conclude that his use of alcohol will not continue to be a problem. Although he testified he completed a rehabilitation program, he did not provide any documentation to support his completion of that program or that he received a favorable prognosis. His most recent arrest in 2010 was after he had consumed alcohol during the afternoon and evening the day before and he was following his girlfriend. His actions raise concerns. I find none of the above mitigating conditions apply. Guideline E, Personal Conduct AG ¶ 15 expresses the security concern for 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. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. I find the following potentially applicable: (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 failed to disclose his alcohol-related arrests as well as his criminal arrests and charges for the previous seven years on his security clearance application. On his answer to the SOR, he falsified information by saying most of his DUI charges were dropped and the last one was almost ten years ago, and he has a clean record since then. These statements were misleading and false. I find Applicant deliberately failed to disclose his alcohol offenses and criminal conduct on his security clearance application. I find the above disqualifying conditions apply to Applicant’s personal conduct. 11 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; (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; and (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; There is no evidence that Applicant made prompt, good-faith efforts to correct his omissions, concealments, and falsifications. He actually continued to mislead the Government with his answer to the SOR. The offenses are not minor. Due to his numerous arrests, charges, and convictions over the past 19 years, Applicant may not have remembered each individual one, but he was aware that he had been arrested numerous times and alcohol was involved in some of them. He did not put the Government on notice as to the extent of his alcohol-related conduct and his criminal conduct. I have considered all of the mitigating conditions and conclude none apply. 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 12 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 E, F, G, and J in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant has a long history of criminal conduct spanning 19 years. Some of his criminal conduct is alcohol-related. He continues to consume alcohol even after attending a year-long rehabilitation program. He has numerous delinquent debts, included tax liens that remain unpaid. At one point, he had sufficient savings to address his debts, but instead purchased a house for cash. He was aware of his criminal past and his alcohol- related issues and was not honest when he completed his security clearance application. He continued to mislead the Government in his answer to the SOR. Overall, the record evidence leaves me with serious questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under the guidelines for Personal Conduct, Financial Considerations, Alcohol Consumption, and Criminal 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 F: AGAINST APPLICANT Subparagraphs: 1.a-1.m: Against Applicant Paragraph 2, Guideline J: AGAINST APPLICANT Subparagraphs 2.a-2.q: Against Applicant Paragraph 3, Guideline G: AGAINST APPLICANT Subparagraphs 3.a-3.b: Against Applicant Paragraph 4, Guideline E: AGAINST APPLICANT 13 Subparagraphs 4.a-4.c: 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. Eligibility for access to classified information is denied. _____________________________ Carol G. Ricciardello Administrative Judge