1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ------------------- ) ISCR Case No. 10-05543 ) Applicant for Security Clearance ) Appearances For Government: Pamela Benson, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ GALES, Robert Robinson, Administrative Judge: Applicant mitigated the security concerns regarding criminal conduct, but failed to mitigate the concerns related to alcohol consumption and financial considerations. Eligibility for a security clearance and access to classified information is denied. Statement of the Case On January 6, 2010, Applicant applied for a security clearance and submitted an Electronic Questionnaire for Investigations Processing version of a Security Clearance Application (e-QIP).1 On an unspecified date, the Defense Office of Hearings and Appeals (DOHA) issued him a set of interrogatories. He responded to the interrogatories on November 18, 2011.2 On March 7, 2012, DOHA issued a Statement of Reasons (SOR) to him, pursuant to Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended and modified; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended and modified (Directive); and the Adjudicative 1 Item 1 (SF 86, dated January 1, 2010). 2 Item 6 (Applicant’s Answers to Interrogatories, dated November 18, 2011). 2 Guidelines for Determining Eligibility For Access to Classified Information (December 29, 2005) (AG) applicable to all adjudications and other determinations made under the Directive, effective September 1, 2006. The SOR alleged security concerns under Guideline G (alcohol consumption), Guideline J (criminal conduct), and Guideline F (financial considerations), and detailed reasons why DOHA was 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 acknowledged receipt of the SOR on March 12, 2012. In a sworn statement, dated March 30, 2012, Applicant responded to the SOR allegations and elected to have his case decided on the written record in lieu of a hearing. A complete copy of the Government’s file of relevant material (FORM) was provided to Applicant on May 18, 2012, and he was afforded a period of 30 days after receipt of the FORM, to file objections and submit material in refutation, extenuation, or mitigation. Applicant received the FORM on June 4, 2012. As of August 3, 2012, Applicant had not submitted any information or documents. The case was assigned to me on August 7, 2012. Findings of Fact In his Answer to the SOR, Applicant admitted all of the factual allegations pertaining to alcohol consumption (SOR ¶¶ 1.a. through 1.l.); most of the factual allegations pertaining to criminal conduct (SOR ¶¶ 2.a. and 1.b.); and all of the factual allegations pertaining to financial considerations (SOR ¶¶ 3.a. through 3.i.). Those admissions are incorporated herein as findings of fact. He failed to address one remaining allegation (SOR ¶ 2.c.). Applicant is a 48-year-old employee of a defense contractor, currently serving as a senior chemist. He obtained a bachelor’s degree in chemistry in 1998. He has never served in the U.S. military. Applicant’s employment history between 1998 and 2002 has not been described. He subsequently held a variety of positions with different employers. He was a field technical support from April 2002 until October 2003; a lab manager and instrument specialist from May 2004 until April 2006; a marine lab specialist from August 2006 until May 2008; and a technical support and trainer from November 2008 until November 2009. He joined his current employer in November 2009. He was also unemployed from October 2003 until May 2004; April 2006 until August 2006; and from May 2008 until November 2008. Applicant was married in 1994 and divorced in 1999. He has no children. Applicant has never had a security clearance. Alcohol Consumption & Criminal Conduct Applicant has a lengthy history of alcohol consumption and criminal conduct that commenced in about 1992. He was arrested on numerous occasions:3 in May 1992 for 3 Item 11 (Federal Bureau of Investigation (FBI) Criminal History Record, dated January 22, 2010); Item 10 (Criminal Record, dated February 2, 2010); Item 9 (State District Court Case File, various dates); Item 8 (State District Court Case Information, various dates); State General District Court Case Information, dated February 15, 2012). 3 possession of marijuana residue and drug paraphernalia; in October 1998 for driving while intoxicated (DWI), driving roadway lane traffic, and proper signal to turn; in February 2000 for driving under the influence (DUI); August 2000 for DUI, improper tires required, and failure to maintain lane; in August 2001 for disturbing the peace and disorderly conduct; in March 2002 for DWI and resisting an officer; in November 2002 for DUI; in July 2003 for various variations of DUI and DWI (both alcohol and other unspecified substances or drugs), reckless driving, negligent driving, driving in improper lane, failure to obey traffic control device instructions, failure to display registration card on demand, violating license restriction, and failure to properly signal an intention to turn; in February 2006 for DUI; in March 2007 for public intoxication; and in September 2007 for public intoxication. The fact scenarios for many of the incidents leading up to the arrests were strikingly similar: after consuming large quantities of alcohol while eating dinner, Applicant either slept in his automobile because he was too intoxicated to drive home, or although he was still too intoxicated to drive home, he nevertheless attempted to do so. Applicant engaged the services of an attorney to represent him in many of the court hearings, and while several of the charges against him were eventually dismissed for a variety of reasons, he was also convicted of many of the charges. Because of his failure to appear for the July 2003 charges, which Applicant attributed to mail delivery problems, a bench warrant was issued for his arrest in about December 2004, and those charges were finally resolved in May 2011. As a direct result of his heavy drinking, in April 2006, after being observed drinking at a restaurant by his new branch manager one evening, Applicant was called into the office early the next morning by the branch manager, ordered to undergo alcohol testing, and was fired from his job for being at work in an intoxicated state. Applicant denied ever receiving any “formal counseling” for his alcohol abuse, but did acknowledge having attended court-ordered alcohol education programs conducted by Mothers Against Drunk Driving (MADD) on two separate occasions, in 1992 and 1998. The programs consisted of two to three Saturday classes. Following his November 2002 arrest, he also attended an Alcohol Safety Action Program (ASAP) consisting of one month of monitoring and six to eight weekend classes. In the early 1990’s, he also attended Alcoholics Anonymous (AA) meetings on about ten occasions. In February 2010, Applicant described his alcohol consumption as four to five beers per sitting, on average, one to two times per week. In November 2011, Applicant acknowledged still consuming alcohol, generally beer, wine, or a mixed drink, on various occasions. He admitted consuming one to six beers a few days each week, and wine or a mixed drink with dinner once each month. He also acknowledged drinking to the point of intoxication “probably” once each month. He cited his most recent episode as having taken place during a college football game two weeks before submitting his answer to the interrogatories. He intended to continue to do so.4 Applicant does not believe he has a problem with alcohol. 4 Item 6, supra note 2, at 18. 4 Financial Considerations It is unclear when Applicant’s finances first became a problem for him, but he seemingly attributed them to “the position [his ex-wife] and divorce put [him] in.” He stated:5 During my divorce or actually property settlement finances got really messed up under confusion of who should pay what. The property settlement was finally done about 7 or 8 years ago but I am not sure if it passes into the 7 year time frame. With all my moving especially to . . . . where the mail is unreliable I am sure something fell through from time to time. . . . He contended he closed all of his credit card accounts in 2005, and has not used any credit card other than a company account since that time. Nevertheless, several accounts became delinquent and were placed for collection or charged off. In February 2010, Applicant discussed various accounts appearing in a credit report with an investigator from the U.S. Office of Personnel Management (OPM). Applicant was unaware of certain accounts about which he was questioned. He stated his intention to find out more about each such account and, if it was due, to make arrangements to resolve the account. The SOR identified nine continuing delinquencies, totaling approximately $92,494. In response to the SOR, Applicant furnished opinions or explanations regarding several accounts, claimed to have no knowledge regarding other accounts, and indicated that when he saves up sufficient money to hire an attorney to assist him in resolving the accounts he will do so. He offered no evidence that he had contacted any of his creditors, and he submitted no documentation to support any conclusion other than, to date, the accounts remain unattended to and unpaid. In November 2011, Applicant submitted a personal financial statement that reflected his monthly net income as $4,201, with monthly expenses of $2,600, and a monthly net remainder of $1,601 available for discretionary spending or saving. It reflected no debt payments. There is no evidence that Applicant ever received financial counseling. Policies 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.”6 As Commander in Chief, 5 Item 5, supra note 1, at 53. 6 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 5 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.”7 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.”8 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.9 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. 7 Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified. 8 “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 (4 th Cir. 1994). 9 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 6 Furthermore, “security clearance determinations should err, if they must, on the side of denials.”10 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.”11 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. Analysis Guideline G, Alcohol Consumption The security concern relating to the guideline for Alcohol Consumption is set out in AG ¶ 21: 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. The guideline notes several conditions that could raise security concerns. Under AG ¶ 22(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 is potentially disqualifying. Similarly, under AG ¶ 22(b), alcohol- related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent, may raise security concerns. In addition, 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, may apply under AG ¶ 22(c). AG ¶ 22(a) is established by Applicant’s alcohol-related incidents away from work, including his various convictions; AG ¶ 22(b), by his reporting to work while intoxicated, and getting fired; and AG ¶ 22(c), because he habitually consumes alcohol to the point of impaired judgment. The guideline also includes examples of conditions that could potentially mitigate security concerns arising from alcohol consumption under AG ¶¶ 23(a)-(d). But in this instance, none of the mitigating conditions apply. Furthermore, after careful consideration of the Appeal Board’s jurisprudence on alcohol consumption, I conclude 10 Egan, 484 U.S. at 531 11 See Exec. Or. 10865 § 7. 7 Applicant’s continued alcohol consumption to the point of impairment or intoxication after his various alcohol-related convictions and attendance in alcohol education programs, his denial of the presence of an alcohol problem, as well as his stated intention to continue his alcohol consumption, sometimes to the point of intoxication, demonstrate a lack of judgment and a failure to control impulses which are inconsistent with the holder of a security clearance. Guideline J, Criminal Conduct The security concern relating to 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 several conditions that could raise security concerns. Under AG ¶ 31(a), a single serious crime or multiple lesser offenses is potentially disqualifying. Similarly, under AG ¶ 31(c), an allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted, may raise security concerns. Applicant’s history of criminal conduct, involving arrests for alcohol and drug-related incidents, and various convictions related to same, is well documented. AG ¶¶ 31(a) and 31(c) have been established. The guidelines also include 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. In addition, AG ¶ 32(d) may apply when 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(a) applies and AG ¶ 32(d) partially applies. Applicant’s drug-related criminal conduct occurred in 1992 and possibly in 2003, but aside from those two incidents, there has been no evidence of more frequent or recent drug-related criminal conduct. His remaining criminal conduct was all alcohol-related, and while frequent, there has been no such conduct since 2007. The court decision in May 2011 stemmed from Applicant’s conduct in 2003, and as such, should not reflect on him as recent criminal conduct. Although Applicant has refused to abstain from consuming alcohol to the point of intoxication or impairment, since 2007, he has at least refrained from driving while in such a condition. Accordingly, Applicant’s most recent criminal conduct of any type ceased in 2007, or five years ago. With the exception of no further incidents since 2007, there is little other evidence of successful rehabilitation. A person should not be held forever accountable for misconduct from the past, without a clear indication of subsequent reform, remorse, or rehabilitation. In this instance, Applicant has reformed 8 some of his conduct, and unless he turns away from responsible drinking and back to irresponsibility that includes driving while intoxicated or impaired, there is a reasonable probability that such conduct will not recur in the future. Guideline F, Financial Considerations The security concern relating to the guideline 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. Under AG ¶ 19(a), an inability or unwillingness to satisfy debts is potentially disqualifying. Similarly, under AG ¶ 19(c), a history of not meeting financial obligations may raise security concerns. Applicant’s financial problems commenced sometime between his 1999 divorce and 2005 when some accounts became delinquent and were placed for collection or charged off. AG ¶¶ 19(a) and19(c) apply. The guideline also includes examples of conditions that could mitigate security concerns arising from financial difficulties. Under AG ¶ 20(a), the disqualifying condition may be mitigated where 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. Also, under AG ¶ 20(b), financial security concerns may be mitigated where 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. Similarly, AG ¶ 20(d) applies where the evidence shows the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.12 12 The Appeal Board has previously explained what constitutes a “good-faith” effort to repay overdue creditors or otherwise resolve debts: In order to qualify for application of [the “good-faith” mitigating condition], an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term ‘good-faith.’ However, the Board has indicated that the concept of good-faith ‘requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.’ Accordingly, an applicant must do more than merely show that she or she relied on a legally available option (such as bankruptcy [or statute of limitations]) in order to claim the benefit of [the “good-faith” mitigating condition]. (internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). 9 In this instance, none of the mitigating conditions apply. Except for his unsupported opinions or explanations regarding several accounts, Applicant claimed to have no knowledge regarding other accounts. He eventually intended to hire an attorney to help him resolve his delinquent accounts, but he offered no evidence that he had contacted an attorney or any of his creditors, and he submitted no documentation indicate he had made any effort to resolve any of those delinquent accounts.13 Instead, Applicant appears to be counting on the statute of limitations to avoid resolving his accounts. Applicant has not acted responsibly under the circumstances.14 Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. The Appeal Board has addressed a key element in the whole-person analysis in financial cases stating:15 In evaluating Guideline F cases, the Board has previously noted that the concept of “‘meaningful track record’ necessarily includes evidence of actual debt reduction through payment of debts.” However, an applicant is not required, as a matter of law, to establish that he [or she] has paid off each and every debt listed in the SOR. All that is required is that an applicant demonstrate that he [or she] has “. . . established a plan to 13 “Even if Applicant’s financial difficulties initially arose, in whole or in part, due to circumstances outside his [or her] control, the Judge could still consider whether Applicant has since acted in a reasonable manner when dealing with those financial difficulties.” ISCR Case No. 05-11366 at 4 n.9 (App. Bd. Jan. 12, 2007) (citing ISCR Case No. 99-0462 at 4 (App. Bd. May 25, 2000); ISCR Case No. 99-0012 at 4 (App. Bd. Dec. 1, 1999); ISCR Case No. 03- 13096 at 4 (App. Bd. Nov. 29, 2005)). A component is whether he or she maintained contact with creditors and attempted to negotiate partial payments to keep debts current. 14 See ISCR Case No. 09-08533 at 3-4 (App. Bd. Oct. 6, 2010). 15 ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008) (internal citations omitted). 10 resolve his [or her] financial problems and taken significant actions to implement that plan.” The Judge can reasonably consider the entirety of an applicant’s financial situation and his [or her] actions in evaluating the extent to which that applicant’s plan for the reduction of his outstanding indebtedness is credible and realistic. See Directive ¶ E2.2(a) (“Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.”) There is no requirement that a plan provide for payments on all outstanding debts simultaneously. Rather, a reasonable plan (and concomitant conduct) may provide for the payment of such debts one at a time. Likewise, there is no requirement that the first debts actually paid in furtherance of a reasonable debt plan be the ones listed in the SOR. There is some evidence in favor of mitigating Applicant’s conduct. His most recent criminal conduct of any type ceased in 2007, or five years ago, and he has reformed some of his conduct. The disqualifying evidence under the whole-person concept is more substantial. Applicant’s general criminal conduct commenced in 1992 and continued through 2007, his purely alcohol-related problems commenced in 1998, and while he has had no alcohol-related arrests since 2007, he continues to consume alcohol to the point of intoxication or impairment. He has no intention of abstaining from further alcohol abuse although he has completed several alcohol education programs and been convicted of numerous alcohol-related charges. His financial problems remain unaddressed, devoid of any meaningful track record of financial responsibility except a negative one. 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.16 Overall, the evidence leaves me with substantial questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all of these reasons, I conclude Applicant has failed to mitigate the security concerns arising from his alcohol consumption and financial considerations. He has, however, mitigated the security concerns regarding criminal conduct. See AG ¶ 2(a)(1) through AG ¶ 2(a)(9). 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 G: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: Against Applicant 16 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). 11 Subparagraph 1.d: Against Applicant Subparagraph 1.e: Against Applicant Subparagraph 1.f: Against Applicant Subparagraph 1.g: Against Applicant Subparagraph 1.h: Against Applicant Subparagraph 1.i: Against Applicant Subparagraph 1.j: Against Applicant Subparagraph 1.k: Against Applicant Subparagraph 1.l: Against Applicant Paragraph 2, Guideline J: FOR APPLICANT Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant Subparagraph 2.c: For Applicant Paragraph 3, Guideline F: AGAINST APPLICANT Subparagraph 3.a: Against Applicant Subparagraph 3.b: Against Applicant Subparagraph 3.c: Against Applicant Subparagraph 3.d: Against Applicant Subparagraph 3.e: Against Applicant Subparagraph 3.f: Against Applicant Subparagraph 3.g: Against Applicant Subparagraph 3.h: Against Applicant Subparagraph 3.i: 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 eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ ROBERT ROBINSON GALES Administrative Judge