1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 10-02142 ) ) Applicant for Security Clearance ) Appearances For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MASON, Paul J., Administrative Judge: Applicant’s good-faith effort to resolve his delinquent bills justifies a finding in his favor under the financial guideline. However, his excessive alcohol consumption and illegal drug use since 1980 has not been mitigated. The intentional falsification of his security application in September 2009 and his interrogatory response in August 2011 is compounded by the poor judgment he demonstrated in threatening his wife and children between 2009 and 2012, and leading to several domestic violence protective orders being filed against him. Eligibility for access to classified information is denied. Statement of the Case Applicant completed and signed an Electronic Questionnaire for Investigations Processing (e-QIP), Government’s Exhibit (GE 1), on September 18, 2009. He was In state X, the case is placed on the inactive docket with no finding of guilt or absence of guilt. Generally,1 state X will agree not to re-institute criminal proceedings on condition the defendant satisfy certain conditions like community service, restitution, or complying with the law for a period of time. 2 interviewed by an investigator from the Office of Personnel Management (OPM) on December 16, 2009. The interview summary appears in GE 2, Applicant’s interrogatory responses, signed on August 9, 2011, and October 12, 2011. Under question #4 of the exhibit, Applicant added that he was arrested in April 2009 for possession of marijuana in December 2008. He also noted that the charge was placed on the “stet” docket. Under1 question #5, Applicant agreed the summary could be admitted into evidence at a hearing to determine his security suitability. (GE 2 at I18) On November 2, 2012, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing security concerns under alcohol consumption (Guideline G), drug involvement (Guideline H), personal conduct (Guideline E), and financial considerations (Guideline F). The action was taken pursuant to Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive), and the adjudicative guidelines (AG) implemented by the Department of Defense on September 1, 2006. Applicant’s answer to the SOR was signed and notarized on December 3, 2012. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on March 20, 2013, for a hearing on April 10, 2013. The hearing was held as scheduled. Thirty-three Governments exhibits (GE) were admitted in evidence (GE 1 through GE 33) without an objection. Applicant’s one exhibit (AE A) was admitted into evidence without objection. In the time period allowed to submit post hearing exhibits, Applicant submitted two additional exhibits (AE B and C), which were admitted into evidence without objection. The transcript was received on April 17, 2013. The record closed on April 25, 2013. Findings of Fact The SOR alleges alcohol consumption (Guideline G), drug involvement (Guideline H), personal conduct (Guideline E), and financial considerations (Guideline F). Applicant admitted all allegations. Applicant is 45 years old. He has been divorced since October 2010. He has two daughters, six and three years of age, from this marriage. He provides child support for these two children and his wife’s three children from another relationship. He received an honorable discharge from the U.S. Marine Corps in September 1989, after three years of service. Though he received an honorable discharge, his alcohol-related driving history while in the service was an unofficial reason for his discharge from the Marines. Also, he Applicant remembered receiving some level of alcohol treatment after he was sentenced to a juvenile2 detention center at age 17 for a hit-and-run accident and fleeing the police. He had been drinking before the police stopped him. (Tr. 52-53) 3 received no Veterans benefits. Applicant received a certificate from an electronics school in January 1996. He has been employed as an engineering technician 1 for a defense contractor since January 2008. He seeks a security clearance. Alcohol History Applicant’s alcohol-related offenses began in February 1987, when he received non- judicial punishment under the Uniform Code of Military Justice (UCMJ) for drinking in the barracks. He was found guilty in October 1987 of driving while impaired, not intoxicated as alleged in SOR 1.b. Later in October 1987, Applicant was evaluated by a medical officer for alcohol treatment. He was diagnosed as alcohol dependent based on an escalating drinking pattern and drinking in the barracks incident identified at SOR 1.b. His alcohol use made him feel he was losing control and was impacting his professional and social relationships. A licensed alcohol counselor and a substance abuse counselor reviewed and signed this evaluation. Additional medical records, signed by a substance abuse specialist on April 2, 1988, reflect Applicant was hospitalized in December 1987. The records add to the account2 provided in the evaluative records of October 1987. He began drinking at age 14 and reached a heavy level at age 15. When admitted to the hospital in December 1987at age 20, he was drinking 15 to 20 beers at a time, and experiencing blackouts. He was in denial and had anger issues. He made good progress during treatment in understanding his alcoholism, and committed himself to Alcoholics Anonymous (AA). His final diagnosis was alcohol dependence with a fair to good prognosis. (GE 3, GE 5, GE 7) In November 1988, Applicant had been drinking and lost control of his car when the headlights turned off without notice. His car struck a pole and he was in a coma for five weeks. After his discharge, he continued to drink alcohol and drive. There were periods of abstinence of six months to one year. (Tr. 51, 55) In February 1997, Applicant was arrested for driving while under the influence of alcohol (DWI). At the time, he was employed as a tester of cellular telephones. The DWI was dismissed when Applicant informed court officials he was leaving the jurisdiction. (Tr. 56) 4 In September 1998, Applicant was at a bar with his brother. He was charged with second degree assault for slapping a female after she hit his brother. He had been drinking before the assault. He pleaded guilty and received six months probation. Applicant has not committed any alcohol-related offenses since September 1998. (GE 10; Tr. 56-57) Applicant has continued to drink. In January 2009, Applicant informed his facility security officer (FSO) that he had a drug and alcohol problem. Treatment records for other medical problems reflect that in April 2010 and May 2011, and February 2012, Applicant was consuming about 80 ounces of alcohol, seven times a week. He currently drinks alcohol about three to four times a week. He last consumed alcohol on April 9, 2013. He has been in and out of AA, but is not currently going to meetings. He acknowledges he is an alcoholic. (GE 4 at 299-311, GE 14; Tr. 58-60) Drug History Applicant used marijuana from 1980 to at least February 2012. He admitted using the drug hundreds of times between January 2000 and January 2007, but did not believe he was addicted to the drug. He stopped using the drug in February 2012, but admitted he stopped in the past and restarted after varying periods off abstinence. Applicant recalled treatment at a drug rehabilitation center in 2006. He left the center after five or six weeks because he grew weary of the treatment regimen. He used no marijuana from May 2007 to December 2008, when he had an argument with his former wife. He claimed that immediately after argument, he drank beer and used marijuana twice in a nearby wooded area. Records show that police officers responded to Applicant’s location in the woods on January 13, 2009, not December 2008. He told them that he had been drinking and that he smoked marijuana. A search revealed marijuana in his right jacket pocket. The police record reflects that the police issued Applicant a summons for possession of marijuana and possession of paraphernalia. An arrest warrant, which was issued on July 14, 2009, indicated that Applicant could not be found. The record does not reflect why the charges were dismissed on September 11, 2009. (GE 2 at I19, GE 4, GE 15, GE 17; Tr. 60-66) At the urging of his wife and her parents, Applicant checked into a drug treatment program in January 2009 for four months. The treatment included classes, group discussions, and church attendance three times a day. Aftercare attendance included attending AA two times a week. Though the records indicate he left treatment to care for his wife, he modified his explanation when he testified that he and his wife decided he had been there long enough. In more recent treatment records, he admitted using marijuana in April 2010, April 2011, and February 2012. He did not intend to use marijuana in the future because it is in his past. (GE 4, GE 15, GE 17; Tr. 60-66) 5 Personal Conduct In December 2008, a neighbor was helping Applicant and his brother move some material that belonged to Applicant. The neighbor did not want to pay Applicant the fair market value of the material. Applicant called the police who surprisingly arrested Applicant. When he did not appear for his court appearance July 2009, he was charged with failure to appear. The (SOR 3.b) offense was dropped on September 11, 2009, for unknown reasons. (GE 2 at I37) On September 28, 2009, Applicant deliberately under reported his marijuana use in response to question 23 (drug use in the last seven years) of his security clearance questionnaire (SCA). He falsely claimed that after using marijuana hundreds of times between 2000 and May 2007, he stopped. The record shows he used the drug more recently in December 2008. (Tr. 73) Between 2009 and 2011, several domestic violence protective orders were issued to Applicant by his wife for threats against her or their children. Some of the protective orders were dismissed or placed on a “stet” docket. Applicant currently has a protective order against him because of his improper conduct with his former wife as he returned the children to her after visitation. (Tr. 65-69) In 2007 and 2008, Applicant was treated for anger management issues. In April 2010, he was evaluated for anger management therapy. He attended 47 anger management sessions. The marriage therapist noted in a letter that Applicant was making progress with anger issues and strategies like conduct regulation and a willingness to improve healthy attitudes. It was recommended in a follow-up letter from the marriage therapist in dated April 2012, that Applicant had completed 76 anger therapy sessions altogether, but recommended continued therapy. Applicant stopped attending because the therapy was not mandatory. He believes he is in control of his anger even though he continues to drink alcohol. (GE 2 at I41, GE 29, GE 30; Tr. 71-72) In August 2011, Applicant was presented with a set of interrogatories to answer about his drug use. In response to question #1 (have you ever used any drugs), Applicant responded “yes,” indicating that he had used marijuana on two occasions, with the last use on December 2008 instead of May 2011. He was not sure whether he intentionally falsified the answer or that his answer was based on confusion over the dates he used marijuana. Applicant’s explanation is not credible. (Tr. 74) 6 Financial Indebtedness History Paragraph 4 of the SOR lists four accounts that became past due between December 2008 and March 2009. Before his marriage, Applicant paid all his bills on time. During the marriage, Applicant overused the credit cards because of recurring marital problems. Applicant enrolled in a debt consolidation plan in February 2011. The accounts in the SOR are included in the plan. Applicant has made 26 monthly payments of $400 a month. He has paid a total of $10,400, over 60% of the total amount of delinquent debt ($18, 000). He is also current with his child support. (GE 2 at I30, AE B, AE C; Tr. 76-77) Policies When evaluating an applicant's suitability for a security clearance, the administrative judge must consider the AG. Each guideline lists potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant's eligibility for access to classified information. The disqualifying and mitigating conditions should also be evaluated in the context of nine general factors known as the whole-person concept to bring together all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision for security clearance eligibility. Such decisions entail a certain degree of legally permissible extrapolation as to the potential, rather than actual, risk of compromise of classified information. 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 of establishing that it is clearly consistent with the national interest to grant him a security clearance. Analysis Alcohol Consumption AG ¶ 21 sets forth the security concern for 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. 7 AG ¶ 22 has five conditions that may be disqualifying: (a) alcohol-related incidents away from work regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent. (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; (e) evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program; and (f) relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program. The SOR identifies seven alcohol-related incidents that occurred between February 1987 and March 2012. Applicant was punished three times under the UCMJ for alcohol- related conduct while he was in the Marines. He received an alcohol dependence diagnosis from a substance abuse counselor in October 1987. He received an alcohol dependence diagnosis in April 1988 for a substances abuse counselor. Though he received an honorable discharge in 1989, he was officially pressured to leave the service because of his alcohol-related offenses. He received no Veterans benefits. In February 1997, Applicant had been drinking alcohol before his arrest for DUI. After his single car accident in November 2008, he continued to drink and drive. The only reason he was not prosecuted was his departure from the jurisdiction with a month of his arrest. In September 1998, Applicant was drinking at a bar when he slapped a female after she hit his brother. While there were periods treatment as well periods of abstinence for up to a year, Applicant eventually resumed drinking. He currently drinks about three or four times a week. AG ¶¶ 22(a), 22(c), and 22(f) apply. There are three conditions under AG ¶ 23 that potentially mitigate Appellant’s alcohol consumption: (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 actions taken to overcome this problem, and has 8 established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); and (d) the individual has successfully completed an inpatient or outpatient treatment counseling or rehabilitation along with any required after care, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of AA or a similar organization and has received a favorable diagnosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized treatment program. Applicant continues to consume alcohol three or four times a week. His past history of excessive alcohol consumption, alcohol-related incidents, and continued alcohol use raises lingering questions about his reliability, trustworthiness, and judgment. Even though Applicant acknowledges he is an alcoholic, he has not established an independently corroborated pattern of abstinence and a network supportive of sobriety. He is not presently in AA or a similar organization. AG ¶¶ 23 (a), 23(b), and 23(d) do not apply. Drug involvement Paragraph 24 of the AG sets forth the security concern for drug involvement: Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability tor willingness to comply with laws, rules and regulations. The pertinent conditions under AG ¶ 25 that may be disqualifying are: (a) any drug use; (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (d) diagnosis by a duly qualified medical professional off drug abuse or drug dependence. The record shows that Applicant used marijuana from 1980 to February 2012. He used the drug hundreds of times between 2000 and May 2007. He was arrested for possession of marijuana and paraphernalia in 2009. Although the marijuana possession and paraphernalia charges (SOR 2.c) were dismissed in September 2011, the dismissal 9 does not eliminate the fact he used the drug in January 2009. He intentionally under reported his marijuana use in his September 2009 SCA and in August 2011 interrogatory responses. His claim of stopping marijuana use in February 2012 is hard to believe because he has made the same claim on several earlier occasions. AE ¶¶ 25(a) and 25(c) apply. AG ¶ 25(d) does not apply due to the absence of a diagnosis. The two potentially mitigating conditions under AG ¶ 26 of the drug involvement guideline are: (a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment); and (b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts, (2) changing or avoiding the environment where drugs are used, (3) an appropriate period of abstinence, and a signed statement of intent with automatic revocation of clearance for any violation. The mitigating condition AG ¶ 26(a) is similar to AG ¶ 23(a). The condition is not applicable because I do not believe Applicant is completely committed to abstain from marijuana use in the future. Even if I were to accept Applicant’s claim that he stopped in February 2012, a little over a year of abstinence does not dispel the security concerns associated with Applicant’s long history of marijuana use since 1980. Though Applicant has produced some evidence that he no longer associates with drug-using associates and is trying to cultivate an environment free of drug influence, he has not established an appreciable period of abstinence. There is no signed statement of intent to refrain in the future. AG ¶ 26(b) does not apply. Personal Conduct The security concern for personal conduct is set forth in AG ¶ 15: 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. 10 AG ¶ 16 contains two disqualifying conditions that are potentially pertinent: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personnel security statement, or similar form to conduct investigations, determine employment qualifications, award benefits and status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; and (c) credible adverse information in several adjudicative 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 he may not properly safeguard classified information. Deliberately providing false information during the security investigation raises security concerns about an applicant’s judgment, reliability, and trustworthiness. On September 28, 2009, Applicant certified and signed an SCA. He provided false information in response to question 23 (drug use in the last 7 years) when he claimed he stopped using marijuana in May 2007. He did not admit he falsified the information on the form until he supplied his answer to the SOR in December 2012. In his response to interrogatories submitted on August 9, 2011, Applicant under reported the full extent of his marijuana use. Though he indicated that confusion over the dates of use caused him to answer the interrogatory incorrectly, I conclude his explanation is not credible because Applicant used the drug in January 2009, about eight months before he filled out the SCA. AG ¶ 16(a) applies to SOR 3.c and 3.h. The admitted allegations listed in SOR 3.a, 3.d, 3.e, 3.f, and 3.g fall within the scope of AG ¶ 16(c). Several protective orders were taken out against Applicant between 2009 and 2011. The fact that Applicant is currently under a protective order suggests that he has lingering anger management issues. Since the July 2009 failure to appear charge was dismissed in September 2011 for unknown reasons, SOR 3.b is found in Applicant’s favor. There are three mitigating conditions under AG ¶ 17 that are potentially pertinent to the circumstances in this case. Those conditions are: (a) the individual made prompt, good-faith efforts to correct the omission, concealment or falsification before being confronted with the facts; 11 (c) the offense was 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; and (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate stressors, circumstances, or factors that caused untrustworthy, unreliable or other inappropriate behavior, and such behavior is unlikely to recur. None of the mitigating conditions apply. Applicant did not disclose his deliberate falsifications until he was confronted with the SOR in November 2012. He acknowledged his falsifications in his December 2012 answer. AG ¶ 17(c) does not apply for the same reasons AG ¶¶ 26(a) and 23(a) do not apply. AG ¶ 17(d) does not apply as Applicant is still drinking and not attending AA meetings or anger management sessions. Financial Considerations Paragraph 18 of the AG sets forth the security concern for to financial considerations: 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. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts. The two relevant disqualifying conditions under AG ¶ 19 are: (a) inability or unwillingness to satisfy debts; and (c) a history of failing to meet financial obligations. The credit reports and Applicant’s admissions confirm that between December 2008 and March 2009, Applicant became delinquent on four debts totaling approximately $18,000. AG ¶¶ 19(a) and (c) apply. 12 Four conditions under AG ¶ 20 could potentially mitigate Appellant’s delinquent indebtedness: (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, and the person 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. In February 2011, Applicant initiated responsible action by enrolling in a debt consolidation plan. The records reflect that Applicant has made 26 regular payments to the debt plan organization and has reduced the total delinquent debt by almost 60%. The record also reflects Applicant’s consistent child support payments since his divorce in October 2010. AG ¶¶ 20(a), 20(b), 20(c), and 20(d) apply to mitigate the listed indebtedness. Whole-Person Concept I have examined the evidence under the disqualifying and mitigating conditions of alcohol consumption, drug involvement, personal conduct, and financial considerations. I have also weighed the circumstances within the context of nine variables known as the whole-person concept. In evaluating the relevance of an individual's conduct, the administrative judge should consider the following factors: 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 the participation was 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. 13 Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be a commonsense judgment based on careful consideration of the guidelines and the whole-person concept. Applicant is 45 years old and divorced. He has worked as an engineering technician for his employer since January 2008. The record of regular child support payments since October 2010 and regular debt plan payments since February 2011, demonstrates Applicant’s trustworthiness and good judgment. However, Applicant has not exercised good judgment over the years asa shown by his abuse of alcohol and illegal use of marijuana. At age 20, he was diagnosed alcohol dependent. Yet, he continued to drink alcohol excessively. Applicant was drinking seven days a week in 2010 and 2011. Presently, he continues to drink and is not involved in AA or any other support therapy. Applicant has a long history of marijuana use. Between 2000 and 2007, he used the drug hundreds of times. He continued to smoke the drug until February 2012. Without independent evidence in support, the short period of abstinence is insufficient to firmly establish his case in mitigation under drug involvement. Applicant’s intentional falsification of his SCA in September 2009, and his interrogatory response in August 2011, together with his pattern of misconduct resulting in domestic violence protective orders over a three-year period, has not been mitigated either. Having weighed the disqualifying evidence with the mitigating evidence, and in the context of the whole-person concept, Applicant has successfully met his burden of persuasion under the financial guideline. Conversely, the lack of ongoing therapy and the passage of sufficient time foils Applicant’s mitigation efforts under alcohol consumption, drug involvement 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 (Guideline G): AGAINST APPLICANT Subparagraphs 1.a-1.j: Against Applicant Paragraph 2 (Guideline H): AGAINST APPLICANT Subparagraphs 2.a-2.e: Against Applicant 14 Paragraph 3 (Guideline E): AGAINST APPLICANT Subparagraphs 3.a, 3.c-3.h: Against Applicant Subparagraph 3.b: For Applicant Paragraph 4 (Guideline F): FOR APPLICANT Subparagraphs 4.a-4.d For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. Paul J. Mason Administrative Judge