1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ) ISCR Case No. 14-06852 ) ) ) Applicant for Security Clearance Appearances For Government: Chris Morin, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ LYNCH, Noreen, A., Administrative Judge: The Department of Defense (DOD) issued a Statement of Reasons (SOR) alleging security concerns arising under Guideline G (Alcohol Consumption), Guideline F (Financial Considerations), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct). The SOR was dated April 25, 2015. 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) implemented in September 2006. Applicant timely answered the SOR and elected to have his case decided on the record in lieu of a hearing. Department Counsel submitted the Government’s written case on September 22, 2015. Applicant received a complete file of relevant material (FORM) on October 5, 2015, and was provided an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s case. Applicant submitted a response, which was marked as AX A and entered into the record without 2 objection. The case was assigned to me on January 20, 2016. Based on a review of the case file, eligibility for access to classified information is denied. Findings of Fact In his answer to the SOR, Applicant admitted and denied the factual allegations under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). He admitted the allegations under Guideline G, and under Guideline E (Personal Conduct). Applicant is a 58-year-old employee of a defense contractor. He graduated from high school in 1975. He served in the U.S. Navy from 1978 until 1991, receiving an honorable discharge. He is widowed and has two children. Applicant has worked for his current employer since 1996. He has held a security clearance for many years. Financial Considerations The SOR alleges 17 delinquent debts totaling about $13,371. (Item 5-6) Applicant admits responsibility for nine delinquent debts. He denies the other debts because they have been removed from his credit report. (Item 2) The majority of the delinquent debts are medical accounts. He has a judgment in the amount of $5,588, and he claims that he has been making monthly payments of $175 since 2014. He has not provided any information concerning payments on any of the delinquent debts. Applicant admits that he has made mistakes and is working on identifying creditors with outstanding balances so that he can arrange to pay the debts. He states that he will resolve them in the upcoming future as quickly as he can. (AX A) He admits to his delinquent accounts but states generally that he will investigate them. (Item 2) The record does not reflect that he has obtained financial counseling. Applicant has been steadily employed in his current position since 1996. He did not present any information that he was unemployed. (Item 3) He has had medical insurance through his job, according to the report with OPM investigators in July 2012. He is not sure what the medical bills are for. (Item 4) Applicant stated in that same interview that he agreed with the information in the credit reports. During his July 2012, interview with investigators, he stated he intends to pay his debts. He has not furnished any receipts for any payments or any structured plan to repay the SOR debts. (Item 4) In his response to the FORM, he submitted a letter from a collection firm that in May 2015, affirming that he started making payments concerning the judgment. However, he did not include any receipts. Criminal Conduct Applicant has six criminal arrests and five convictions from 1978 until 2014. (Item 2, 8, 9,11 and 12) He admits that he has been charged and convicted of two driving while impaired charges and two driving under the influence charges. In 2011, he states that the driving while impaired was reduced to reckless driving. (Item 4) His 2014 arrest 3 for driving under the influence resulted in a court recommendation for 20 hours of counseling, 48 hours of community service and a fine. There is no court documentation in the record to clarify the disposition. Alcohol Consumption The alcohol-related convictions from 1978 until 2014 were cross-alleged under alcohol consumption. Applicant admits the incidents and convictions. He acknowledges that he has made big mistakes by drinking and driving, especially after he had an accident. He states that he has almost stopped alcohol consumption and only has a beer every now and then. He realizes that his drinking has not done him any good and does not like to pay the fines and lose his driver’s license. (Item 2) He submitted a certificate of completion for 20 hours of DUI/DWI intensive education, dated October 4, 2015, in response to the FORM. However, he has had other alcohol courses as a result of a 2009 conviction. Despite multiple alcohol-related arrests and convictions over a span of almost 30 years, he continues to consume some alcohol. Personal Conduct Applicant admitted that on his 2012 security clearance application under Section 26-Financial Records that he failed to disclose his non-payment of state income taxes for tax years 2004 and 2006, resulting in a court-ordered garnishment of his wages in the amount of $8,475. He stated that he has no excuse for not disclosing the information. He admitted the intentional omission. Policies When evaluating an applicant’s suitability for a security clearance, an administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, they are applied in conjunction with the factors listed in the adjudicative process. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995). 1 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988). 2 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). 3 See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive 4 information), and EO 10865 § 7. ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). 5 Id. 6 4 The Government must present evidence to establish controverted facts alleged in the SOR. An 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 burden of proof is something less than a1 preponderance of evidence. The ultimate burden of persuasion is on the applicant. 2 3 A person seeking access to classified information enters into a fiduciary relationship with the Government based on 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 protect classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” “The clearly consistent standard indicates that security clearance4 determinations should err, if they must, on the side of denials.” Any reasonable doubt5 about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such information. The decision to deny an individual a6 security clearance does not necessarily reflect badly on an applicant’s character. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense established for issuing a clearance. Analysis Guideline F, Financial Considerations AG ¶ 18 expresses the security concern pertaining 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 5 questions about an individual's reliability, trustworthiness and ability to protect classified information. An individual who is financially over- extended 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. AG ¶ 19 describes conditions that could raise a security concern and may be disqualifying: (a) inability or unwillingness to satisfy debts; (b) indebtedness caused by frivolous or irresponsible spending and the absence of any evidence of willingness or intent to pay the debt or establish a realistic plan to pay the debt; (c) a history of not meeting financial obligations; (d) deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, and other intentional financial breaches of trust; (e) consistent spending beyond one's means, which may be indicated by excessive indebtedness, significant negative cash flow, high debt-to- income ratio, and/or other financial analysis; (f) financial problems that are linked to drug abuse, alcoholism, gambling problems, or other issues of security concern; (g) failure to file annual Federal, state, or local income tax returns as required or the fraudulent filing of the same; (h) unexplained affluence, as shown by a lifestyle or standard of living, increase in net worth, or money transfers that cannot be explained by subject's known legal sources of income; and (i) compulsive or addictive gambling as indicated by an unsuccessful attempt to stop gambling, "chasing losses" (i.e. increasing the bets or returning another day in an effort to get even), concealment of gambling losses, borrowing money to fund gambling or pay gambling debts, family conflict or other problems caused by gambling. Applicant admits to nine delinquent debts. As to the debts that he denies, his reasoning is that the account is not on his credit report and he will investigate it. The 6 debts are confirmed in his credit reports. Consequently, the evidence is sufficient to raise disqualifying conditions ¶¶ 19(a) and 19(c). AG ¶ 20 provides conditions that could mitigate security concerns: (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; (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; and (f) the affluence resulted from a legal source of income. Applicant has claimed that he has good intentions to pay his delinquent debts. However, he has not provided any documentary evidence to show that he has paid the delinquent debts or has a plan to repay the debts. He has not reported financial counseling. He has been gainfully employed since 1996, and has not raised any circumstances beyond his control that would contribute to his financial problems. None of the mitigating conditions apply. 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.” AG ¶ 31 describes conditions that could raise a security concern and may be disqualifying: (a) a single serious crime or multiple lesser offenses; 7 (b) discharge or dismissal from the Armed Forces under dishonorable conditions; (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; (d) individual is currently on parole or probation; and (e) violation of parole or probation, or failure to complete a court- mandated rehabilitation program. Applicant’s admissions and the evidence of arrests and convictions from 1978 until 2014 are sufficient to raise AG ¶¶ 31(a) and (c). AG ¶ 32 provides four conditions that could mitigate security concerns: (a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; (b) the person was pressured or coerced into committing the act and those pressures are no longer present in the person's life; (c) evidence that the person did not commit the offense; and (d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement. After reviewing the mitigating conditions, I find that none of them fully apply in this case. Applicant’s behavior occurred between 1978 and 2014. He acknowledged that the last incident was in 2014. Although almost two years have elapsed, Applicant has not provided information establishing that he is rehabilitated. There is no information in the record concerning completion of his community service. I find that he has not mitigated the security concern under criminal conduct. 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.” AG ¶ 22 describes conditions that could raise a security concern and may be disqualifying: 8 (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; (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; (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; (d) diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence; (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; (f) relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program; and, (g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence. Applicant has alcohol-related incidents over a span of almost 30 years. He has been ordered to complete alcohol classes. He did take a course in 2015, but despite the multiple arrests and convictions, he continues to consume alcohol. The record does not have any other information concerning rehabilitation. AG ¶ 22(a) applies. AG ¶ 23 provides conditions that could mitigate security concerns: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; (b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); 9 (c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; and, (d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program. After considering the mitigating factors, I find that none of them apply in this case. Guideline E, Personal Conduct AG ¶ 15 expresses the security concern pertaining 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. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; (b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative; (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; 10 (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information 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. This includes but is not limited to consideration of: (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information; (2) disruptive, violent, or other inappropriate behavior in the workplace; (3) a pattern of dishonesty or rule violations; and (4) evidence of significant misuse of Government or other employer's time or resources. (e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group; (f) violation of a written or recorded commitment made by the individual to the employer as a condition of employment; and (g) association with persons involved in criminal activity. Applicant’s behavior concerning his financial responsibility and his criminal conduct shows lack of judgment, reliability and trustworthiness over a period of years. His conduct shows a pattern of poor judgment. He did not disclose his financial problems concerning his failure to pay state income taxes for years 2004 and 2006 on his security clearance application. He admitted that he has no excuse for not reporting the failure and the resulting garnishment and falsified his security clearance application. AG ¶ 16 (a), (c), and (e) apply. AG ¶ 17 provides conditions that could mitigate security concerns: 11 (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; (f) the information was unsubstantiated or from a source of questionable reliability; and (g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. Applicant admitted that he did not disclose the information on his security clearance application. He gave no reason in mitigation, and his omission is concluded to be wilful and knowing. He has not provided any other information to persuade me that he has mitigated personal conduct concerns. I have doubts about his judgment and reliability. After considering the mitigating conditions outlined in AG ¶ 17, I conclude Applicant has not mitigated the security concern under personal conduct. 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 an 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 12 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. As noted above, the ultimate burden of persuasion is on the applicant seeking a security clearance. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, as well as the whole-person factors. Applicant has a history of alcohol-related arrests and convictions that span almost 30 years. He still consumes alcohol and has not presented evidence of rehabilitation. His conduct was frequent, recent, did not happen under unusual circumstances, and is likely to recur. He did present evidence of recent court-ordered counseling, but no evidence of participation in ongoing alcohol support groups. The criminal conduct is linked to the alcohol incidents. The choices he made over the years indicate lack of trustworthiness. Applicant has not provided any information to show that he is a changed person or that he has taken action to resolve his delinquent SOR debts. At this point, I have doubts about his judgment and reliability. Any doubts must be resolved in favor of the Government. Applicant has not met his burden in this case. He has not mitigated the security concerns under financial considerations, alcohol consumption, criminal conduct, and personal conduct. Clearance is denied. 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 J: AGAINST APPLICANT Subparagraphs 1.a-1.f: Against Applicant Paragraph 2, Guideline G: AGAINST APPLICANT Subparagraphs 2.a-2.f: Against Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraph 3.a: Against Applicant Guideline 4, Financial Considerations: AGAINST APPLICANT 13 Subparagraphs 4.a-q: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant a security clearance. Clearance is denied. NOREEN A. LYNCH. Administrative Judge