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                             DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 15-02036
)
)
Applicant for Security Clearance )
Appearances
For Government: Andrew Henderson, Esquire, Department Counsel
For Applicant: Pro se
September 1, 2016
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on February 12, 2014.  On November 2, 2015, the Department of Defense
(DOD) issued a Statement of Reasons (SOR) detailing the security concerns under
Guidelines F, G and E for Applicant.  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 after
September 1, 2006.
Applicant acknowledged receipt of the SOR on November 20, 2015.  He
answered the SOR in writing (Answer) on December 1, 2015, and requested a hearing
before an Administrative Judge.  The Defense Office of Hearings and Appeals (DOHA)
received the request soon thereafter, and I received the case assignment on March 15,
2016.  DOHA issued a notice of hearing on March 16, 2016, and I convened the hearing
as scheduled on April 7, 2016.  The Government offered Exhibits (GXs) 1 through 9,
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which were received without objection.  Applicant testified on his own behalf, called two
witnesses to testify, and submitted Exhibits (AppXs) A through H, which were received
without objection.  DOHA received the transcript of the hearing (TR) on April 19, 2016.  I
granted Applicant’s request to keep the record open until May 6, 2016, to submit
additional matters.  On May 5, 2016, he submitted Exhibits I and J, which were received
without objection.  The record closed on May 6, 2016.  Based upon a review of the
pleadings, exhibits, and testimony, eligibility for access to classified information is
denied.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Subparagraphs 1.a.~1.e., 1.g., 1.h., 1.j.~1.m., 2.a.~2.e., 3.a. and 3.b. of the SOR, with
explanations.  He denied the factual allegations in Subparagraphs 1.f. and 1.i. of the
SOR.  He also provided additional information to support his request for eligibility for a
security clearance.
Applicant is a 63 year old self described “Computor [sic] Operator,” who has
worked for a government contractor since November of 2008.  (GX 1 at pages 5 and 9.)
In 1995, he retired from the Army as a Sergeant First Class after 20 years of service.
(TR at page 28 lines 11~25.)
Guideline F - Financial Considerations
1.a. and 1.i.  Applicant avers, and the Government concedes, that these are one
and the same past-due debt to Creditor A in the amount of about $797.  (TR at page 34
line 8 to page 35 line 9, and at page 36 line 17 to page 37 line 18.)  Applicant has
initiated a “DEBT SETTLEMENT AGREEMENT,” by which he would pay “$150.00 as
full payment on the debt,” as evidenced by correspondence to Creditor A.  (AppX J at
page 1.)  I find that Applicant has “initiated a good-faith effort to repay” this admitted
past-due debt; and as such, this allegation is found for Applicant.
1.b.  Applicant admits that he is indebted to Creditor B for a past-due debt in the
amount of about $3,619.  Applicant has initiated a “DEBT SETTLEMENT
AGREEMENT,” by which he would pay “$275.00 as full payment on the debt,” as
evidenced by correspondence to Creditor B.  (AppX J at page 6.)  I find that Applicant
has “initiated a good-faith effort to repay” this admitted past-due debt; and as such, this
allegation is found for Applicant.
1.c.  Applicant admits that he is indebted to Creditor C for a past-due debt in the
amount of about $3,426.  Applicant has initiated a “DEBT SETTLEMENT
AGREEMENT,” by which he would pay “$300.00 as full payment on the debt,” as
evidenced by correspondence to Creditor C.  (AppX J at page 3.)  In response, a
successor creditor to Creditor C has made a counter offer.  (AppX J at page 9.)  I find
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that Applicant has “initiated a good-faith effort to repay” this admitted past-due debt; and
as such, this allegation is found for Applicant.
1.d.  Applicant admits that he is indebted to Creditor D for a past-due debt in the
amount of about $1,460.  Applicant has initiated a “DEBT SETTLEMENT
AGREEMENT,” by which he would pay “$225.00 as full payment on the debt,” as
evidenced by correspondence to Creditor D.  (AppX J at page 7.)  I find that Applicant
has “initiated a good-faith effort to repay” this admitted past-due debt; and as such, this
allegation is found for Applicant.
1.e.  Applicant admits that he is indebted to Creditor E for a past-due debt in the
amount of about $644.  Applicant has initiated a “DEBT SETTLEMENT AGREEMENT,”
by which he would pay “$130.00 as full payment on the debt,” as evidenced by
correspondence to Creditor E.  (AppX I at page 7.)  I find that Applicant has “initiated a
good-faith effort to repay” this admitted past-due debt; and as such, this allegation is
found for Applicant.
1.f.  Applicant denies that he is indebted to Creditor F for a past-due debt in the
amount of about $6,485.  Applicant avers that this is his son’s debt, which is
corroborated by a statement from his son.  (TR at page 37 line 19 to page 39 line 4, and
AppX I at page 6.)  This allegation is found for Applicant.
1.g.  Applicant admits that he is indebted to Creditor G for a past-due debt in the
amount of about $3,960.  Applicant has initiated a “DEBT SETTLEMENT
AGREEMENT,” by which he would pay “$275.00 as full payment on the debt,” as
evidenced by correspondence to Creditor G.  (AppX J at page 2.)  I find that Applicant
has “initiated a good-faith effort to repay” this admitted past-due debt; and as such, this
allegation is found for Applicant.
1.h.  Applicant admits that he is indebted to Creditor H for a past-due debt in the
amount of about $870.  Applicant has initiated a “DEBT SETTLEMENT AGREEMENT,”
by which he would pay “$120.00 as full payment on the debt,” as evidenced by
correspondence to Creditor H.  (AppX J at page 5.)  I find that Applicant has “initiated a
good-faith effort to repay” this admitted past-due debt; and as such, this allegation is
found for Applicant.
1.i.  This allegation has already been discussed, above.
1.j.  Applicant admits that he is indebted to Creditor J for a past-due debt in the
amount of about $385.  Applicant has initiated a “DEBT SETTLEMENT AGREEMENT,”
by which he would pay “$77.00 as full payment on the debt,” as evidenced by
correspondence to Creditor J.  (AppX I at page 7.)  I find that Applicant has “initiated a
good-faith effort to repay” this admitted past-due debt; and as such, this allegation is
found for Applicant.
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1.k.  Applicant admits that he is indebted to Creditor K for a past-due debt in the
amount of about $376.  Applicant has initiated a “DEBT SETTLEMENT AGREEMENT,”
by which he would pay “$77.00 as full payment on the debt,” as evidenced by
correspondence to Creditor K.  (AppX J at page 4.)  I find that Applicant has “initiated a
good-faith effort to repay” this admitted past-due debt; and as such, this allegation is
found for Applicant.
1.l.  Applicant admits that he is indebted to Creditor L for a past-due debt in the
amount of about $157.  Applicant has initiated a “DEBT SETTLEMENT AGREEMENT,”
by which he would pay “$50.00 as full payment on the debt,” as evidenced by
correspondence to Creditor L.  (AppX I at page 8.)  I find that Applicant has “initiated a
good-faith effort to repay” this admitted past-due debt; and as such, this allegation is
found for Applicant.
1.m.  Applicant has paid the admitted $47 debt to Creditor M, as evidenced by
correspondence from Creditor M, and a cancelled check.  (AppX C at pages 1~2.)
Guideline G - Alcohol Consumption
2.a.~2.e.  In March of 1984, Applicant was arrested, in part, for Driving Under the
Influence (DUI) of alcohol.  (TR at page 29 lines 2~10, and at page 29 line 20 to page
30 line 22.)  As a result of this DUI, Applicant was administered Non-Judicial
Punishment (NJP).  (Id, and GX 4.)
After he retired from the Army, in February of 1998, Applicant was again arrested
for a DUI.  (TR at page 30 line 23 to page 31 line 10, and GX 5 at pages 1~2.)  Prior to
his arrest, he had consumed about eight beers over a period of three hours.  (Id.)  He
“was fined, given 3 years Unsupervised Probation, [his] License [was] suspended for
one year and . . . [he] had to attend a DUI School.”  (GX 5 at page 2.)
In a February 2004 sworn statement, Applicant averred the following: “My future
intent is to never use alcohol again and I have not since 2001.  I am a Diabetic so I
cannot drink, and I do not any longer.”  (GX 5 at page 2.)
In October of 2005, Applicant was arrested for, and subsequently pled guilty to, a
third DUI.  (TR at page 31 line 11 to page 33 line 1, and GX 3 at page 3.)  A year later,
in October of 2006, Applicant was again arrested for a fourth DUI.  (TR at page 46 line
19 to page 49 line 2.)  Finally, in December of 2007, Applicant was arrested, the last
time, for a DUI.  (TR at page 33 line 2~7.)  He entered a guilty plea in May of 2008, was
sentenced to 45 days in jail, placed on probation for 36 months, and ordered to attend a
multiple offender alcohol program, which he successfully completed.  (GX 6, and AppX
D at page 5.)
Applicant has ceased the consumption of alcohol since January of 2008, more
than eight years ago.  (TR at page 40 line 16 to page 43 line 25.)  This sobriety is due to
his diabetes, and a new found religious faith.  (Id, and AppX I at pages 4 and 5.)
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Guideline E - Personal Conduct
3.a.  Applicant admits that he failed to answer “Section 26 - Financial Record”
correctly on his February 2014 e-QIP, when he answered, “No,” as to any “Delinquency
Involving Routine Accounts . . . In the past (7) years.”  (TR at page 61 line 20 to page 62
line 11, and GX 1 at pages 29~31.)  In his Answer to the SOR, Applicant avers, in part,
that he “was rushed and accidentally checked the incorrect answer.”  (Answer at page
3.)  Applicant did not correct this obvious error (in light of the numerous, continuing
past-due debts admitted to in Paragraph 1 of the SOR), until he was confronted by a
special investigator.  (TR at page 54 line 20 to page 56 line 21.)  I find this to be a wilful
falsification.
3.b.  Applicant admits that he failed to answer “Section 22 - Police Record
(EVER” correctly on his February 2014 e-QIP, when he answered, “No,” to the question,
“Have you EVER been charged with an offense involving alcohol . . . .”  (TR at page 53
line 17 to page 54 line 18, and GX 1 at pages 25~26.)  In his Answer to the SOR,
Applicant again avers, in part, that he “was rushed and accidentally checked the
incorrect answer.”  (Answer at page 3.)  Applicant did not correct this obvious error (in
light of his past five DUIs extending from March of 1984 to December of 2007) admitted
to in Paragraph 2 Of the SOR, until he was confronted by a special investigator.  (TR at
page 53 line 17 to page 54 line 19.)  I also find this to be a wilful falsification.
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG).  In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful 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 AG Paragraph 2(a) describing the adjudicative process.  The
administrative judge’s over-arching adjudicative goal is a fair, impartial and
commonsense decision.  According to AG Paragraph 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 national security is the paramount consideration.  AG
Paragraph 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.
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Under Directive Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph E3.1.15,
the Applicant is responsible “to rebut, explain, extenuate, or mitigate facts admitted by
applicant or proven by Department Counsel. . . .”  The Applicant has the ultimate burden
of persuasion as to obtaining a favorable clearance 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 protect or
safeguard classified information.  Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
Section 7 of Executive Order 10865 provides that adverse 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
The security concern relating to the guideline for Financial Considerations is set
out in Paragraph 18:
Failure or inability to live within one=s means, satisfy debts, and
meet financial obligations may indicate poor self-control, lack of judgment,
or unwillingness to abide by rules and regulations, all of which can raise
questions about an individual=s reliability, trustworthiness and ability to
protect classified information.  An individual who is financially
overextended is at risk of having to engage in illegal acts to generate
funds.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 19(a), an “inability or unwillingness to satisfy debts@ is potentially
disqualifying.  Similarly under Subparagraph 19(c), “a history of not meeting financial
obligations@ may raise security concerns.  Applicant has had difficulty meeting his
financial obligations.  Under Subparagraph 20 (d), it may be mitigating where “the
individual initiated a good-faith effort to repay overdue creditors or otherwise resolve
debts.”  Through correspondence with his creditors, Applicant is making a good-faith
effort to address his admitted past-due debts.  Guideline F is found for Applicant.
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Guideline G - Alcohol Consumption
Paragraph 21 of the adjudicative guidelines sets out the security concern relating
to Alcohol Consumption: “Excessive alcohol consumption often leads to the exercise of
questionable judgment or failure to control impulses, and can raise questions about an
individual’s reliability and trustworthiness.”
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Subparagraph 22(a) is applicable and provides that “alcohol-related incidents
away from work, such as driving under the influence . . . ” may be disqualifying.
Applicant has five DUIs beginning in 1984 and ending in 2007.  However, this is
mitigated by the countervailing mitigating condition under Subparagraph 23(a) as “so
much time has passed [more than eight years] . . . that it [the behavior] is unlikely to
recur . . . .”  Applicant has not consumed alcohol since January of 2008, and intends no
future consumption.  Guideline G is also found for Applicant.
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
Paragraph 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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(a), “deliberate omission, concealment, or falsification of relevant facts
from any personnel security questionnaire,” may be disqualifying.  Applicant was not
candid about his past-due indebtedness and his past criminal conduct.  I find no
countervailing Mitigating Conditions that are applicable here.  Guideline E is found
against Applicant.
Whole-Person Concept
Under the whole-person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances.  Under AG Subparagraph 2(c), the ultimate
determination of whether to grant eligibility for a security clearance must be an overall
commonsense judgment based upon careful consideration of the guidelines and the
whole-person concept.
The Administrative Judge should also consider the nine adjudicative process
factors listed at AG Subparagraph 2(a):
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(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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  One of his two co-workers did testify most
favorably for Applicant.  (TR at page 75 line 6 to page 80 line 10.)  However, the record
evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability
for a security clearance.  For this reason, I conclude Applicant has not mitigated the
security concerns arising from his alleged 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 F: FOR APPLICANT
Subparagraphs 1.a.~1.m. For Applicant
Paragraph 2, Guideline G: FOR APPLICANT
Subparagraphs 2.a.~2.e: For Applicant
Paragraph 3, Guideline E: AGAINST APPLICANT
Subparagraphs 3.a. and 3.b.: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
Richard A. Cefola
Administrative Judge