1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-05501 ) Applicant for Security Clearance ) Appearances For Government: Daniel Crowley, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ HEINY, Claude R., Administrative Judge: Applicant contests the Department of Defense’s (DoD) intent to deny his eligibility for a security clearance to work in the defense industry. The majority of the 13 charged- off or collection accounts listed in the Statement of Reasons (SOR), totaling more than $14,000, have been resolved. The criminal conduct and personal conduct security concerns are also favorable resolved. Clearance is granted. History of the Case Acting under the relevant Executive Order and DoD Directive,1 on June 6, 2012, the DoD issued an SOR detailing security concerns. DoD adjudicators could not find that it is clearly consistent with the national interest to grant or continue Applicant’s security clearance. In an undated response, Applicant answered the SOR and requested a hearing. On November 15, 2012, I was assigned the case. On November 1 Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DoD on September 1, 2006. 2 20, 2012, DOHA issued a Notice of Hearing for a hearing convened on December 3, 2012. I admitted Government’s Exhibits (Ex) 1 through 8 and Applicant’s Ex. A, without objection. Applicant testified on his own behalf as did his wife. The record was held open to allow Applicant to submit additional information. On December 4, 2012, additional material was submitted. Department Counsel had no objection to the material, which was admitted into the record as Ex. B through E. On December 13, 2012, DOHA received the hearing transcript (Tr.). Findings of Fact In Applicant’s Answer to the SOR, he denied one debt (SOR ¶ 1.e, $2,087) and admitted the remaining charged-off or collection accounts. He denied he had been arrested in July 2004 (SOR ¶ 2.b), denied violating the Uniformed Code of Military Justice (UCMJ) (SOR ¶ 3.b), and denied falsifying his December 2010 Electronic Questionnaires for Investigations Processing (e-QIP) (SOR ¶¶ 3.b, 3.c, 3.d, and 3.e). Applicant neither admitted nor denied the allegations in SOR ¶ 3.a, which cross-alleged SOR ¶¶ 2.a and 2.b. He admitted the remaining allegations. I incorporate Applicant’s admissions as facts. After a thorough review of the pleadings, exhibits, and testimony, I make the following additional findings of fact: Applicant is a 35-year-old field service technician who has worked for a defense contractor since September 2008. He installs computers and software on government vehicles. (Tr. 24, 50) He was a member of the U.S. Army from May 1998 through June 2004. He was honorably discharged as a staff sergeant (E-6) having served just over six years. (Ex. 8, Tr. 28) From May 2005 to December 2005 and June 2006 through February 2007, he was deployed to Iraq as a DoD contractor. (Ex. 8) He has also been deployed to Bosnia. (Tr. 51) Applicant called no witnesses other than himself and his wife. His first-line supervisor stated by letter that Applicant “has always demonstrated his trustworthiness, candor and reliability.” (Ex. A, Tr. 24) Applicant has been commended and received numerous awards during his tenure from senior military leaders. (Ex. A, Tr. 24) He sets the example for all team members and performs outstandingly (Ex. A) In January 2004, while in the Army, Applicant became involved in an argument with his wife during which the patio door was broken and Applicant punched holes in two bedroom doors in his government quarters. (Ex.3) He told the responding officers that he was not on good terms with his first sergeant and if provoked he (Applicant) might hit his first sergeant. (Ex. 3) At no time during the incident did he turn physical against the officers or his wife. The first sergeant told Applicant that he (first sergeant) would do everything he could to get Applicant out of the Army. The report of the incident listed violation of Article 108 of the Uniform Code of Military Justice (UCMJ) for wrongful damage to government property and for violation of Article 134 for communicating a threat. 3 Applicant was not court-martialed nor did he receive an Article 15, Nonjudicial Punishment, under the UCMJ for the incident. In February 2004, he was referred to Drug/Alcohol Use and Mental Health Service and then administratively discharged from the Army. (Ex. 3) He never saw the Commander’s Report of Disciplinary or Administrative Action (Ex. 3) until provided by Department Counsel in preparation of the hearing. (Tr. 45) From June 2004 through November 2004, Applicant was a stay at home father. His wife was working and supporting the family. (Ex. 8) At some point, his wife was out of work for some time before obtaining work in September 2011. (Ex. 8) Since that time, he and his wife have been trying to bring their accounts current. In July 2004, after leaving the Army, Applicant was involved in an argument with his wife when the police arrived and asked him to accompany them. He was never told he was being arrested. He was given a mental health evaluation and told his problem was that he needed to get a job. Something he already knew. In Applicant’s response to written interrogatories, he stated he did not remember being charged in the July 2004 incident. (Ex. 8) He received a ticket and notice to appear. (Tr. 32) He remembers going to court and talking with the judge about attending anger management classes. In October 2004, Applicant became involved in an argument with his wife. He was arrested for resisting arrest, assault, criminal damage, and disorderly conduct (fighting). He asserts he never acted aggressively that evening and followed the instructions given. He spent the night in jail and the next morning told the judge he had never been arrested before, that he had just gotten out of the Army, and that it was hard to find a job. He asked to be allowed to return to his home state to look for employment, and start over with his family. (Ex. 1, 8) He is still married to the same woman. He then left the state before the charges were adjudicated. Applicant no longer has anger issues. (Tr. 46) Applicant contacted the court several times in an attempt to resolve the matter, but was told he needed to appear in court. (Ex. 8) He has been trying to save money to hire an attorney and has send funds to retain an attorney. (Ex. 8) When he completed his Electronic Questionnaires for Investigations Processing (e-QIP) he listed this criminal matter. (Ex. 1) On November 18, 2011, there was a motion to dismiss the charges. (Ex. 4) On November 25, 2011, the entry reads “042–ME:Case Dismissed – Full.” (Ex. 4) However, on November 28, 2011, the entry reads “BWA2 – Bench Warrant.” There is also an indication that some of the charges had deferred prosecution. (Ex. 5) Applicant is frequently on temporary duty (TDY) with his DoD contractor job, which takes him away from home for lengthy periods of time. He is home two or three months of the year. (Tr. 62) When the bills arrive at his home, his wife is responsible for 2 Under state law, “BWA” means Bench Warrant Cost Assessment (in the Justice Information Management System – JIMS) and Bench Warrant Advanced (TRAVIS description), which is not further described. 4 paying them. (Tr. 58) Applicant’s annual salary is $60,000 - $62,000. (Tr. 48) In March 2012, he completed a personal financial statement. (Ex. 8) At that time, his net monthly income was approximately $6,900, his monthly expenses were $3,550, and he was paying $1,000 monthly on his debts, which left a monthly net remainder of $2,337. At that time, he stated his wife’s job was ending in April 2012 due to cutbacks. (Ex. 8) At the hearing, he stated his wife had obtained a new job with annual income is $50,000. (Tr. 49) She is a construction project manager. (Tr. 62) Applicant used his G.I bill entitlement from the Department of Veterans Affairs (VA) to attend college. He was unable to continue his classes when his work sent him to Alaska. He dropped the classes and in June 2010, the college refunded him $2,000. His wife immediately sent the refund check to the VA. (Ex. 8, Tr.40-41) His February 2012 credit bureau report (CBR) lists the account as a paid collection. (Ex. 7) In early 2010, Applicant and his wife went to a credit management company and paid the company $250 monthly for six months. (Ex. 8) The company was to help him clear up his credit by having old accounts removed from his credit report. (Ex. 8) The SOR lists 12 charged-off or collection accounts, not including the paid VA debt, totaling approximately $12,400. More than two-thirds of the delinquent amount ($8,380) was due to a 2004 repossession of his motorcycle (SOR 1.l). His unaddressed debt less the paid VA debt and the repossessed motorcycle totaled approximately $4,000. He had purchased the motorcycle in 2003, when he was in the Army. While in the service, he made the $300 monthly payments. (Ex. 8) After leaving the service, he was unable to continue making his monthly payments. He called the creditor and voluntarily surrendered the motorcycle. He did not list this on his e-QIP (Ex. 1) because he thought the repossession had occurred more than seven years before he completed the e-QIP. The debt does not appear on his current CBRs (Ex. 7, 8) and unless Texas’ 4-year statute of limitations3 has been interrupted, the debt is barred from collection. 3 See Tex. Civ. Prac. & Rem. Code §§ 16.004(c) and 16.051 (statute of limitations for contracts); 16.004(a)(3) (statute of limitations for debts); Cont’l Casualty Co. v. Dr. Pepper Bottling Co. of Tex., 416 F. Supp. 2d 497, 505-507 (W.D. Tex. 2006); Facility Ins. Corp. v. Employers Ins. of Wausau, 357 F.3d 508, 513-514 (5 th Cir. 2004) (discussing statute of limitations for open or revolving accounts). Debts barred by the Texas statute of limitations are legally uncollectible. However, Applicant’s payments on his debts have reinstated them, ending the statute of limitations defense to collection. See Stine v. Stewart, 80 S.W.3d 586, 591, 45 Tex. Sup.J. 966 (Tex. 2002). The South Carolina Court of Appeals succinctly explained the societal and judicial value of application of the statute of limitations: Statutes of limitations embody important public policy considerations in that they stimulate activity, punish negligence and promote repose by giving security and stability to human affairs. The cornerstone policy consideration underlying statutes of limitations is the laudable goal of law to promote and achieve finality in litigation. Significantly, statutes of limitations provide potential defendants with certainty that after a set period of time, they will not be ha[iled] into court to defend time-barred claims. Moreover, limitations periods discourage plaintiffs from sitting on their rights. Statutes of limitations are, indeed, fundamental to our judicial system. Carolina Marine Handling, Inc. v. Lasch, 363 S.C. 169, 175-76, 609 S.E.2d 548, 552 (S.C. Ct. App. 2005) (internal quotation marks and citations omitted). The reduction in the magnitude and number of debts that 5 The SOR lists a number of collection accounts for medical services. Applicant had medical insurance for himself and his family and believes his insurance provider should have paid for the medical treatment. He is requesting they do so. (Tr. 72) Following the hearing, Applicant paid the following charged-off and collection accounts: SOR ¶ 1.a ($323), SOR ¶ 1.c ($326), SOR ¶ 1.f ($889), SOR ¶ 1.g ($436), SOR ¶ 1.h ($51), SOR ¶ 1.i ($577), SOR ¶ 1.j ($355), SOR ¶ 1.k (same debt as SOR ¶ 1.k), and SOR ¶ 1.m ($703). (Ex. C, E) There was no documentation that the $25 medical copayment (SOR ¶ 1.b) or the $165 city water bill (SOR ¶ 1.d), had been paid. In December 2010, when Applicant completed an e-QIP, he was asked if he had ever been arrested. He listed the October 2004 arrest, but not the July 2004 incident. He listed the October 2004 arrest in great detail. On the same form, he failed to indicate that his motorcycle had been repossessed in 2004 in response to Question 26, and failed to indicate he had been more than 180 days delinquent on a debt or was currently more than 90 days delinquent. At the time, he knew he had debts, but did not believe he was currently 90 days delinquent or had been more than 180 days past due on any debt. (Tr. 36) 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 must be considered 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 interests of 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. creditors can legally enforce because of the application of the Texas statute of limitations reduces the potential vulnerability to improper financial inducements, and the degree that a debtor is “financially overextended,” is also reduced. However, it does not negate the debtor’s past conduct, which failed to take more aggressive actions to resolve the financial jeopardy. 6 Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the 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 applicant 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 (EO) 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 Adjudicative Guideline (AG) ¶ 18 articulates the security concerns relating to financial problems: 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. Additionally, an individual who is financially irresponsible may also be irresponsible, unconcerned, negligent, or careless in properly handling and safeguarding classified information. Behaving responsibly or irresponsibly in one aspect of life provides an indication of how a person may behave in other aspects of life. A person’s relationship with his creditors is a private matter until evidence is uncovered demonstrating an inability or unwillingness to repay debts as agreed. Absent substantial evidence of extenuating or mitigating circumstances, an applicant with a history of serious or recurring financial difficulties is in a position of risk that is inconsistent with holding a security clearance. An applicant is not required to be debt free, but is required to manage his finances to meet his financial obligations. 7 Applicant had 13 charge-off or collection accounts, which totaled $14,000. Disqualifying Conditions AG ¶ 19(a), “inability or unwillingness to satisfy debts” and AG ¶ 19(c), “a history of not meeting financial obligations,” apply. Four Financial Considerations 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; and (d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts. Applicant has paid ten of the accounts. There is no documentation that he paid a $25 medical copayment or that the city water bill is current. These two bills are so small as not to be a security concern. In 2004, Applicant voluntarily surrendered his motorcycle incurring an $8,500 obligation. That obligation is now uncollectable under the state statute of limitation unless there was an interruption in the statute. The creditor is not actively seeking payment of this seven year old debt, which no longer appears on his CBR. The eight-year-old motorcycle debt does not raise concerns about his current reliability, trustworthiness, or good judgment. Applicant has sufficient funds to address his financial needs. The nonpayment of these accounts appears to be inattention and not inability. Now that he is fully aware of the impact his finances have had on his job caused by his finances, it is unlikely this conduct will be repeated. AG ¶ 20(a) applies. Under AG & 20(b), Applicant’s largest debt was the repossessed motorcycle. He purchased it while in the Army and the following year could not make the monthly payments after leaving the service and not finding a job. His inability to find a job was a condition beyond his control. AG & 20(b) applies to this debt. Under AG & 20 (c) Applicant and his wife sought financial assistance through a credit management company. However, after paying the company $1,500 they received little of value. It appears Applicant’s financial problems are under control. The total amount of SOR debt to be addressed was only $4,000, other than the VA debt that had 8 already been repaid and the motorcycle debt. AG & 20(c) applies. AG & 20(d) applies to the ten debts that have been paid. 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.” In July 2004, police responded to Applicant’s residence and asked him to accompany them, which he did. This was not an arrest. Following an evaluation, he was told his problem was a lack of money and that he needed to get a job, which he already knew. In October 2004, he was arrested after an argument with his wife. AG ¶ 31(a) “a single serious crime or multiple lesser offenses” applies. Security concerns raised by criminal conduct may be mitigated under AG ¶ 17(c), if “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.” The incident occurred in 2004 and seven years later the prosecutor dismissed the charges. The key question is whether Applicant’s conduct is mitigated by the passage of time. There are no bright line rules for determining when conduct has been mitigated by the passage of time. The determination must be based on a careful evaluation of the totality of the evidence. See ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows “a significant period of time has passed without any evidence of misconduct,“ then an administrative judge must determine whether that period of time demonstrates “changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.” Id. Applicant’s last misconduct was more than eight years ago. Since then, he has been gainfully employed. He has worked for defense contractors since December 2008. I conclude that AG ¶ 17(c) is established. Under AG ¶ 17(d), the security concerns raised by criminal conduct also may be mitigated if “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.” There has been no criminal conduct since 2004, he is remorseful, sincere, testified credibly at the hearing, and has a good employment record. AG ¶ 17(d) applies. Applicant has taken other positive steps to alleviate the stressors, circumstances, or factors that caused the inappropriate behavior, and such behavior is unlikely to recur. The incident was contributed to by Applicant’s lack of money. From June 2004 through November 2004, Applicant was a stay at home father. His wife’s work supported the family. He is no longer pressured by a lack of a job or insufficient 9 funds. He is now better at handling stress. He has learned from his mistakes, matured, and is a responsible member of the community. Personal Conduct AG ¶ 15 explains why personal conduct is a security concern stating: 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 provides one condition that could raise a security concern and may be disqualifying in regard to falsification of Applicant’s security clearance application: (b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative; and (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. The criminal matters have already been discussed. In January 2004, an argument in Applicant’s home escalated to where the police responded. A patio door was broken and two additional doors punched. Additionally, he made some comments about his first sergeant. No judicial or nonjudicial punishment was taken by his command related to the incident. Applicant was separated from the service with an honorable discharge. This incident occurred more than nine years ago and is no longer poses a security concern. On Applicant’s December 2010 e-QIP, he listed his October 2004 arrest, but not the June 2004 incident. There is no documentary evidence supporting the June 2004 incident was an arrest. He acknowledges the police came to his home and asked him to accompany them, which he did. There is no indication he was ever arrested. On the same e-QIP Applicant failed to indicate his motorcycle had been repossessed in 2004. He says he though the repossession exceeded the seven year scope of the question. The repossession had occurred only six years previous. I will not fault Applicant for failing to remember the repossession occurred within six years before 10 the form was completed and not the required seven years. It does not appear Applicant was trying to hide anything by his answer. Applicant is gone from home most of the year. Last year he was home only two or three months. His wife is in control of the family’s finances since that is where the bills arrive. When he completed the e-QIP, he knew he had debts, but did not believe any of them were currently more than 90 days delinquent or had ever been 180 days delinquent. His delinquent debts included the previously described motorcycle, a $2,000 VA debt that had already been repaid, and approximately $4,000 in other debts. Some of the debt was due to medical services, which he believed his medical insurance was properly addressing. I do not find his answer a falsification. The Government has shown Applicant's answers to Question 26 were incorrect, but this does not prove the Applicant deliberately failed to disclose information about his finances. He has denied intentional falsification. His statements about his intent or state of mind at the time he executed the e-QIP are relevant and material, but not conclusive. An intent to deceive or mislead the government does not require direct evidence and can be inferred from circumstantial evidence, but this is not the case here. When his statements are weighted in light of the evidence as a whole, I find his answers were not deliberate omissions, concealments, or falsifications and, therefore, none of the disqualifying conditions under personal conduct 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 relevant 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. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. In 2004, Applicant had some problems after leaving the Army and being unable to find a job. This resulted in the repossession of his motorcycle, which was two thirds of the SOR debt and also resulted in two incidents where the police came to his home. One incident resulted in an arrest 11 and the other simply in him accompanying them for an evaluation. These incidents occurred more than eight years ago. Since then he has obtained employment that has taken him to Iraq twice and to many military locations in the United States. His job keeps him on the road and away from home nine or ten months out of the year. Applicant deserves substantial credit for his service in Southwest Asia at various times from 2005 through 2007. He has demonstrated his loyalty, patriotism, and trustworthiness through his service to the DoD as a contractor. Overall, the record evidence leaves me without questions or doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his financial considerations, criminal conduct, and personal 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, Financial Considerations: FOR APPLICANT Subparagraphs 1.a – 1.m: For Applicant Paragraph 2, Criminal Conduct: FOR APPLICANT Subparagraphs 2.a and 2.b: For Applicant Paragraph 3, Personal Conduct: FOR APPLICANT Subparagraphs 3.a – 3.e: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is granted. _______________________ CLAUDE R. HEINY II Administrative Judge