1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ADP Case No. 12-04343 ) ) Applicant for Position of Trust ) Appearances For Government: Fahryn Hoffman, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant failed to mitigate the Government’s trustworthiness concerns under Guidelines F, financial considerations, G, alcohol consumption, and E, personal conduct. Applicant’s eligibility for access to sensitive information is denied. On October 17, 2012, the Department of Defense (DOD) issued to Applicant a Statement of Reasons (SOR) detailing trustworthiness concerns under Guidelines F, G, and E. 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) effective within the Department of Defense for SORs issued after September 1, 2006. Applicant answered the SOR in writing on November 10, 2012, and requested a hearing before an administrative judge. The case was assigned to me on January 3, 2013. DOHA issued a notice of hearing on January 17, 2013. The case was held as scheduled on February 6, 2013. The Government offered Exhibits (GE) 1 through 4, 2 and they were admitted into the record without objection. Applicant testified and offered Exhibits (AE) A through I, which were admitted into the record without objection. The record was held open until February 14, 2013, to allow Applicant to submit additional documents which he did. The documents were marked AE J through R and admitted into the record without objection DOHA received the hearing transcript (Tr.) on February 14, 2013. Findings of Fact Applicant admitted all of the allegations in the SOR. I incorporated his admissions into the findings of facts. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 51 years old. He married in 1995 and divorced in 1999. He has a 17- year-old daughter from the marriage. He earned a bachelor’s degree in 1983 and a master’s degree in 1989.1 Applicant admitted that he repeatedly failed to file his federal income tax returns as required for tax years 2001 through 2011. He testified that the tax returns for tax years 2001 through 2008 were filed six to eight months late each year. His testimony is inconsistent with the tax forms he provided, as noted below.2 After the hearing, Applicant provided copies of his 2000 through 2008 federal income tax returns. The documents show that he filed his 2000 return on April 1, 2005; 2001 return on November 1, 2005; 2002 return on November 5, 2005; 2003 return on December 20, 2005; and his 2004 return on March 6, 2006. His 2000 through 2004 returns were filed late. He did not pay the federal income taxes he owed when required.3 For tax year 2009 Applicant filed a return on February 1, 2013; for tax year 2010 he filed on February 2, 2013; and for tax year 2011, he filed on February 3, 2013. He did not provide any payments when he filed these tax returns.4 A review of Applicant’s federal tax returns for tax year 2005 show it was filed on April 7, 2006; the 2006 return was filed on April 1, 2007; the 2007 return was filed on April 10, 2008; and his 2008 return was filed on April 14, 2009. Applicant’s federal income tax returns for 2005 through 2008 were filed on time. He did not pay the federal income taxes for those years at the time they were owed.5 1 Tr. 94, 98. 2 Tr. 42-43, 52-54; AE A, J, K, L, M, N. 3 Tr. 52-54; AE J, K. L, M. N. 4 Tr. 52-54; AE A. 5 AE O, P, Q, R. 3 Applicant’s federal tax returns reflect that his total income in 2000 was $80,592; in 2001 it was $73,878; in 2002 it was $82,399; in 2003 it was $81,195; in 2004 it was $83,699; in 2005 it was $72,205; in 2006 it was $73,569; in 2007 it was $76,793; in 2008 it was $68,670; in 2009 it was 70,813; 2010 it was $75.439; and in 2011 it was $57,228.6 Applicant had federal income taxes withheld from his paycheck for the tax years mentioned, but the withholdings were not enough to cover his tax debt each year. During one period of time his wages were garnished to pay his tax debt. Sometime in 2008, he negotiated a payment plan with the Internal Revenue Service (IRS) to pay his delinquent taxes. He stated he made $250 monthly payments. He estimated he paid about $2,000 to the IRS and then stopped making payments. He thinks he currently owes about $50,000 in delinquent federal income taxes including interest and penalties. He anticipated working out a payment plan with the IRS in the near future, but has not made any payments toward this debt. He stated he needed to complete the appropriate forms, and he had not yet done so. He explained it was both his conscience and receipt of the SOR that prompted him to act on resolving his tax problems.7 Applicant stated he has been unable to pay his tax lien because his highest priority is paying his rent and then child support. Applicant was aware that he was required to file and pay his federal income taxes, but he thought he could neglect it, and it would not affect him. He admitted he intentionally failed to file his federal income taxes and acknowledged his mistake.8 Applicant attributed his financial problems to a divorce in 1999 and subsequent child support payments of $860 a month. After his divorce he was unemployed for six months. He used his savings to live on during this period. He was unemployed from July 2001 to November 2001, but worked part-time as a delivery person. He indicated he also did not have a full-time job from March 2011 to November 2011, but he was working two part-time delivery jobs. He experienced other periods of unemployment for a month or two in the past at a time when a contract on one job would expire before he received a new contract. There were not long periods of unemployment other than what is mentioned.9 Regarding the non-tax delinquent debts alleged in the SOR, Applicant has contacted the creditor in SOR ¶ 1.d ($917). The debt is with a collection company and the original creditor is attempting to locate the account. The debt was a gas credit card and has been delinquent since 2010. Applicant is unable to pay it at this time. He is 6 AE A, J, K, L, M, N, O, P, Q, R. 7 Tr. 18-30, 66-67. 8 Tr. 51-53. 9 Tr. 56-66. 4 waiting for the creditor to provide him information on the account.10 This debt is not resolved. The debt in SOR ¶ 1.e ($155) is for a check drawn on a bank where there were nonsufficient funds. Applicant wrote the check in September 2011, and paid the delinquent debt in November 2012. 11 The debt is resolved. The debt in SOR ¶ 1.f ($329) is an unpaid electric bill. Applicant stated he could not pay the bill because he was unemployed at the time. He moved out of his residence and in with a friend to save money. He has paid half of the bill and hopes to pay the remaining amount in a couple of weeks. 12 The debt is not resolved. The debt in SOR ¶ 1.g ($228) is an unpaid telephone bill. The bill was delinquent for two years. Applicant settled with the collection company and paid the settlement amount of $125 on January 17, 2013.13 It is resolved. The debt in SOR ¶ 1.h ($198) is for cable services. The debt has been delinquent since 2009. Applicant stated he contacted the creditor a couple times in December 2012 to dispute the amount. He is attempting to find out from the creditor how the dispute has been resolved. The debt is about five years old.14 The debt is not resolved. The debt in SOR ¶ 1.i ($159) is for communication services. The debt has been delinquent for about a year. Applicant paid the debt on January 24, 2013, and it is resolved.15 On April 8, 1984, Applicant was arrested and charged with driving left of center and driving while impaired. He was convicted of driving while impaired. He was sentenced to pay a fine and perform 24 hours of community service. On June 4, 1986, he was again arrested and charged with driving while impaired. He was found guilty and sentenced to pay a fine and court costs. He was ordered to serve 12-months in jail, which was suspended except for four weekends and to attend two-years of unsupervised probation. His driver’s license was revoked for four years. Applicant stated he completed the terms of his sentence. He did not drive during his suspension and relied on friends to give him a ride or he rode his bike.16 10 Tr. 31-32. 11 Tr. 32-33, 66-68; AE B. 12 Tr. 33-34, 68; AE C. 13 Tr. 34-36; AE D. 14 Tr. 36-37, 69. 15 Tr. 38; AE E. 16 Tr. 73-74, 84-86. 5 Applicant attended outpatient alcohol treatment from July 1997 to September 1998. He and his medical insurance paid for the treatment. He attended sessions three times a week for three hours each session. He stated he attended on the request of his wife because they were going through counseling to save their marriage. Applicant stated he never received a diagnosis or prognosis. He also attended Alcoholic Anonymous (AA) meetings during this time. When asked if he believed he was an alcoholic at that time, he stated “yes.” After completion of 14 months of alcohol counseling, Applicant was advised to abstain from consuming alcohol. He abstained for approximately six months before he resumed drinking alcohol. He stopped attending AA meetings about the same time.17 Applicant currently consumes alcohol three to five times a week. Each time he consumes approximately six beers. Applicant no longer believes he is an alcoholic. He does not believe he has an alcohol problem. When first questioned at the hearing, Applicant stated that he does not believe alcohol has had a negative impact on him, but later admitted that sometimes alcohol has had a negative impact.18 On December 23, 2011, Applicant signed his Electronic Questionnaires for Investigations Processing.19 Later that night he was driving to visit friends in another city. He stopped at a gas station and bought a six pack of beer that he intended to consume while driving on the trip. He then proceeded to consume the alcohol while he drove. He stated he had about three beers when he was stopped by the police for driving 83 miles in a 75-mile-an-hour speed zone. He refused to take a breathalyzer. He was charged with driving too close, driver in possession, and speeding. The charges were later consolidated and charged as driving under the influence (DUI).The charge was eventually reduced to reckless driving. On February 1, 2012, Applicant appeared in court and pled not guilty. His adjudication was withheld. At some point he pled guilty to the reduced charge of reckless driving. He was fined $1,050 and given two days credit for time he served in jail. Applicant paid the fine.20 Applicant was interviewed by a government investigator on February 14, 2012. After discussing his 1984 and 1986 alcohol-related convictions, he was asked if he had ever been arrested for any additional alcohol-related offenses or DUI’s, either prior to the above mentioned offenses, since, or anytime recently. Applicant stated “no.” Applicant was then confronted with the December 23, 2011 arrest. Applicant commented that he was arrested on a “traffic” offense. The investigator then specifically asked Applicant if the traffic offense was a DUI. At that point, Applicant explained the circumstances of the December 23, 2011 alcohol-related incident. At his hearing, Applicant stated he thought when the investigator was questioning him that the 17 Tr. 74, 86-89. 18 Tr. 89-90, 92-93. 19 GE 1. 20 Tr. 74-77, 90-92. 6 investigator was only inquiring about other alcohol-related convictions. He explained because his latest arrest had not yet been adjudicated at that time he did not immediately disclose it. He explained he was confused and did not understand the question. He believed the investigator was only inquiring about alcohol convictions. He stated when he was prompted about the arrest he provided the specifics of the incident. I did not find Applicant’s testimony credible. I find he intentionally failed to disclose his most recent alcohol-related incident.21 Applicant provided information that he has served on jury duty three times. He attends church, donates blood, and is a member of the PTA. He stated that at various jobs where he was employed he has had access to sensitive information and has never had any negative incidences. He provided character letters from his supervisor and two coworkers. His supervisor has never had any issues with Applicant whom he has known since September 2011. Two coworkers also provided statements. Both have known Applicant for 14 to 15 years. One stated he has never heard anything negative either professionally or personally about Applicant. In fact, he only has heard good comments. The second coworker described Applicant as a great associate, who is technically proficient, and reliable. He is considered a man of integrity and enthusiasm. He has demonstrated a caring, personable attitude and professional demeanor. Applicant admitted that these three people only knew he had some financial problems, but did not know the extent, or the other allegations in the SOR.22 Policies Positions designated as ADP I and ADP II are classified as “sensitive positions.” (See Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3.) “The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, the person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to sensitive duties is clearly consistent with the interests of national security.” (See Regulation ¶ C6.1.1.1.) The Deputy Under Secretary of Defense (Counterintelligence and Security) Memorandum, dated November 19, 2004, indicates trustworthiness adjudications will apply to cases forwarded to DOHA by the Defense Security Service and Office of Personnel Management. Department of Defense contractor personnel are afforded the right to the procedures contained in the Directive before any final unfavorable access determination may be made. (See Regulation ¶ C8.2.1.) When evaluating an applicant’s suitability for a public trust position, the administrative judge must consider the disqualifying and mitigating conditions in the AG. 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 21 Tr. 46-49, 77. 22 Tr. 96-97; AE G, H. 7 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 [sensitive] information will be resolved in favor of national security.” 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 trustworthiness decision. A person who seeks access to sensitive 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 sensitive information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of sensitive information. Analysis 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. I have considered all of them under AG & 19, and the following are potentially applicable: (a) inability or unwillingness to satisfy debts; (c) a history of not meeting financial obligations; and 8 (g) failure to file annual Federal, state, or local income tax returns as required or the fraudulent filing of the same. Applicant has accumulated numerous delinquent debts that he failed to pay for a significant period of time and which remain unpaid and unresolved. Applicant intentionally failed to timely file his federal income tax returns for tax years 2000 through 2004 and 2009 through 2011. I find the above disqualifying conditions have been raised. The guideline also includes examples of conditions that could mitigate security concerns arising from those financial difficulties. I have considered all of the mitigating conditions under AG ¶ 20, and the following 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. AG ¶ 20(a) is not established because Applicant’s delinquent debts are numerous, recent, and unresolved. His ongoing failure to pay his debts cast doubt on his reliability, trustworthiness, and good judgment. Applicant’s failure to file his federal income tax returns and pay his federal taxes, resulted in large federal tax liens, and were intentional acts by him. He has consistently earned the same annual income from 2000 to 2010. He repeatedly failed to pay the total amount of federal income tax owed. He may have had short periods of unemployment, but based on his annual income it did not impact him financially except for 2011. His divorce was in 1999 and may have had some effect on his finances. Applicant has not 9 offered any reasonable explanation for why he did not pay his federal income taxes or his other debts for all of those years. I find AG ¶ 20(b) minimally applies. Applicant paid the debts in SOR ¶¶ 1.e ($155) and 1.i ($159). He settled the debt in SOR ¶ 1.g ($228) for $125. AG ¶ 20(d) applies to these debts. He made a partial payment on the debt in SOR ¶ 1.f ($329), but the debt is not yet resolved. He has not resolved his other delinquent debts. He has not completed the paperwork to arrange a payment plan with the IRS. He did not present evidence of how or when he intends to resolve his other delinquent debts. Applicant has not received financial counseling. There are not clear indications Applicant’s financial problems are being resolved or under control. AG ¶ 20(d) does not apply. Applicant disputes the debt in SOR ¶ 1.h, but failed to provide the basis of the dispute or provide documented proof to substantiate his attempts to resolve the dispute. AG ¶ 20(e) does not apply. 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, and the following two are potentially applicable: (a) alcohol-related incidents away from work, such as driving 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. Appellant had two driving while impaired convictions, one in 1984 and one in 1986. He was arrested on December 23, 2011, and later charged with DUI. Applicant completed an outpatient alcohol treatment program from July 1997 to September 1998. He was told to abstain from alcohol consumption. At the time, Applicant believed he was an alcoholic. He no longer believes he is an alcoholic. He consumes alcohol three to five times a week, drinking approximately six drinks at a sitting. I find the above disqualifying conditions apply. I have considered all of the mitigating conditions under AG ¶ 23, and the following are potentially applicable: 10 (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; and (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). Applicant continues to consume alcohol and make poor decisions, despite his previous convictions in 1984 and 1986 and completion of alcohol abuse treatment in 1997. On December 23, 2011, the same day he submitted his security clearance application, he purchased alcohol and drank it while he driving to a friend’s house. He admitted he was an alcoholic at one time, but he no longer is one. He has reluctantly agreed or recognized that alcohol has had a negative impact on his life. He has not established a pattern of responsible use. The above mitigating conditions do not apply. Guideline E, Personal Conduct AG ¶ 15 sets out the security concern relating to 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 have specifically considered the following: (b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative. When specifically asked during his background interview by a government investigator, Applicant deliberately failed to disclose his alcohol-related offense on December 23, 2011. When the investigator confronted Applicant with the facts regarding that arrest, he admitted the offense. The above disqualifying condition applies. AG ¶ 17 describes conditions that could mitigate personal conduct security concerns. The following: are potentially applicable: 11 (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; and (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. I find Applicant’s failure to disclose information was intentional and deliberate. His eventual disclosure was made only after the investigator confronted him with the facts. Applicant’s conduct is not minor, and I am not convinced it is unlikely to recur. His actions cast doubt on his reliability, trustworthiness, and good judgment. Neither mitigating condition applies. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for access to sensitive information 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 access to sensitive information 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 considered all of the character evidence provided by Applicant. Applicant repeatedly failed to file his federal income taxes. He repeatedly failed to pay his federal income taxes and has an approximately $50,000 tax lien that he has not paid. Despite having an opportunity to make arrangements with the IRS to establish a payment plan, he has not done so. He also has other unpaid delinquent debts. Applicant has three alcohol-related offenses. His most recent involved making a conscious decision to purchase alcohol so he could drink it while driving. When questioned by a government investigator and specifically asked if he had alcohol-related offenses other than the 1984 and 1986 offenses, he failed to disclose his latest arrest on December 23, 2011. Applicant’s explanation and testimony throughout his hearing was not credible. Applicant has repeatedly exhibited 12 untrustworthy and unreliable conduct. He has also repeatedly exercised poor judgment. The evidence leaves me with serious questions and doubts about Applicant’s eligibility and suitability for access to sensitive information. For all these reasons, I conclude Applicant failed to mitigate the trustworthiness concerns arising under the financial considerations, alcohol consumption, and personal conduct guidelines. 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.d: Against Applicant Subparagraph 1.e: For Applicant Subparagraphs 1.f: Against Applicant Subparagraph 1.g: For Applicant Subparagraphs 1.h: Against Applicant Subparagraph 1.i: For Applicant Paragraph 2, Guideline G: AGAINST APPLICANT Subparagraphs 1.a-1.b: Against Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: Against Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraph 1.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 eligibility for a public trust position. Eligibility for access to sensitive information is denied. _____________________________ Carol G. Ricciardello Administrative Judge