1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 16-01729 ) Applicant for Security Clearance ) Appearances For Government: Benjamin R. Dorsey, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guidelines F (Financial Considerations), J (Criminal Conduct), and G (Alcohol Consumption). Applicant mitigated the security concerns under Guidelines J and G, but she did not mitigate the concerns under Guideline F. Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application on June 3, 2015, seeking to continue a clearance she has held since January 2002. (Tr. 28.) On August 17, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent her a Statement of Reasons (SOR) alleging security concerns under Guidelines F, J, and G. The DOD CAF acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. The adjudicative guidelines are codified in 32 C.F.R. § 154, Appendix H (2006), and they replace the guidelines in Enclosure 2 to the Directive. 2 Applicant answered the SOR on September 16, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 20, 2016, and the case was assigned to me on November 18, 2015. On the same day, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for December 8, 2016. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 7 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AX) A through D, which were admitted without objection. I kept the record open until January 6, 2017, to enable her to submit additional evidence. She timely submitted AX E through I, which were admitted without objection. DOHA received the transcript (Tr.) on December 16, 2016. Findings of Fact1 In her answer to the SOR, Applicant admitted the allegations in SOR ¶¶ 1.a-1.h, 1.j, and 2.a. She denied SOR ¶¶ 1.i, 1.k, 2.b, and 3.b. She neither denied nor admitted SOR ¶ 3.a, which cross-alleges SOR ¶¶ 2.a and 2.b. Her admissions in her answer and at the hearing are incorporated in my findings of fact. Applicant is a 36-year-old systems engineer employed by a defense contractor since December 2001. She received an associate’s degree in computer systems and networking from a community college in November 2001. Applicant is divorced and has no children. She testified that she began excessive drinking in 2008, when she met her ex-boyfriend, and they went to bars six days a week and consumed 10 to 12 beers each time. She estimated that she spent between $2,000 and $2,500 per month on alcohol during 2008 through 2012. (Tr. 56-57.) In August 2009, Applicant was charged with driving under the influence (DUI). She pleaded guilty, was placed on probation for one year, and required to attend a victim-impact panel. In October 2012, Applicant was charged with felony DUI and illegal drug possession. She denied that the drugs in her car were hers. In November and December 2009, she underwent a chemical assessment by a licensed alcohol and drug counselor. The counselor noted that she was being treated with prescription drugs for anxiety, mild depression, and narcolepsy, and he advised her to abstain from alcohol due to the potential combined effects of alcohol and drugs. He cited the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR) and found “episodic, indiscriminate, and legally problematic alcohol use,” but he did not specify any of the listed alcohol-related diagnoses in DSM-IV-TR. He recommended drug and alcohol education. (AX H.) 1 Applicant’s personal information is extracted from her security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record. 3 In April 2014, Applicant was evaluated by a licensed alcohol and drug counselor, who diagnosed her with drug abuse, which is specifically listed in DSM-IV-TR. He also recommended alcohol and drug abuse education. (AX D.) Applicant’s trial for the October 2012 DUI and drug charges was delayed by plea negotiations and issues about the lawfulness of the drug seizure. In May 2014, she pleaded guilty to misdemeanor DUI, and adjudication of the drug offense was deferred. She was placed on supervised probation until May 2017. Due to a job transfer in October 2012, her probation was transferred to another state. She attended a victim- impact panel in March 2015. She started a 12-hour outpatient substance abuse treatment program in March 2015 and completed it April 2015. (GX 5; AX C; 54-55.) In May 2015, she was released from probation and the drug charge was dismissed. (GX 4; AX A; AX B.) Applicant last consumed alcohol on May 12, 2014. (Tr. 55.) Her relationship with the ex-boyfriend has ended. She no longer lives in the state where her excessive drinking occurred. She testified that her alcohol-abuse treatment helped her realize how much more enjoyable her life could be. Instead of spending her time sitting at a bar, she exercises on a regularly, explores new activities, and has made new friends. (Tr. 56.) Applicant’s excessive spending on alcohol caused her financial problems, resulting in the delinquent debts alleged in SOR ¶¶1.a-1.k and reflected in credit bureau reports (CBRs) from June 2015 and March 2016. (GX 2; GX 3; Tr. 33.) The delinquent debts alleged in SOR ¶¶ 1.a-1.h and 1.j were credit-card accounts that became delinquent in 2011 and 2012. The total credit-card debt alleged is about $31,700. The debt in SOR ¶ 1.f was forgiven, and Applicant received an IRS Form 1099-A, but the record does not reflect the reason for the creditor’s decision to forgive the debt. Applicant has not contacted any of the creditors about resolving the debts, but she testified that she intends to use a credit-counseling agency to resolve them. (Tr. 33-36, 41.) Applicant denied owing the $388 medical bill alleged in SOR ¶ 1.i and the $470 utility bill alleged in SOR ¶ 1.k. She testified at the hearing that she had not contacted these creditors or disputed the debts with the credit reporting bureau. (Tr. 41.) She testified that the creditor in SOR ¶ 1.k provided electricity for the marital home before she divorced and moved out, but her ex-husband did not take her name off the account. (Tr. 25-26.) The June 2015 CBR reflects that it was an individual account in her name. (GX 2 at 6.) Applicant testified that she contacted a credit-counseling agency in June 2015 but had not been able to meet with the agency because of her frequent work-related travel. (Tr. 35.) She was scheduled to meet with the agency shortly after the hearing. (Tr. 37.) She did not report any progress with the credit-counseling agency in her post- hearing submission. 4 Applicant earns about $4,500 per month. Her monthly expenses are about $3,189, leaving a net monthly remainder of about $1,311. (AX E.) She presented evidence that loss of her security clearance would reduce her monthly income to about $3,295, leaving a net monthly remainder of about $121. (AX F.) However, the financial consequences of the loss of a security clearance “are not a relevant consideration in an adjudication of an applicant’s security eligibility.” ISCR Case No. 02-09220 (App. Bd. Sep. 28, 2004.) Policies “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 5 presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). Analysis Guideline F, Financial Considerations The concern under this guideline 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. This concern is broader than the possibility that a person might knowingly compromise classified information to raise money. It encompasses concerns about a person’s self-control, judgment, and other qualities essential to protecting classified information. A person who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding classified information. See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012). Applicant’s admissions, corroborated by her CBRs, establish two disqualifying conditions under this guideline: AG ¶ 19(a) (“inability or unwillingness to satisfy debts”) and AG ¶ 19(c) (“a history of not meeting financial obligations”). The following mitigating conditions under this guideline are potentially applicable: AG ¶ 20(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; 6 AG ¶ 20(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; AG ¶ 20(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; AG ¶ 20(d): the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; and AG ¶ 20(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. Applicant’s delinquent debts are numerous, recent, and were not incurred under circumstances making them unlikely to recur. AG ¶ 20(b) is not established. Applicant’s divorce in 2011 was a condition beyond her control, but her excessive spending on alcohol with a boyfriend began in 2008, and it was the primary cause of her financial problems. AG ¶ 20(c) is not established. Although Applicant has contacted a credit- counseling agency, she presented no evidence that any counseling has taken place, and her financial situation is not under control. AG 20(d) is not established. Applicant presented no evidence of payments on the debts alleged in the SOR. The debt in SOR ¶ 1.f was cancelled, but there is no evidence that the cancellation was preceded by good-faith efforts to resolve it. AG ¶ 20(e) is not established. Applicant denied the debts in SOR ¶¶ 1.i and 1.k. In her post-hearing submission, she claimed that she disputed the medical debt in SOR ¶ 1.i online, but she submitted no documentation of the dispute. Guideline J, Criminal Conduct The concern raised by criminal conduct is set out in AG ¶ 30: “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.” Applicant’s admissions and the documentary evidence submitted at the hearing establish two disqualifying conditions under this guideline: AG ¶ 31(a) (“a single serious crime or multiple lesser offenses”) and AG ¶ 31(c) (“allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted, or convicted”). 7 The following mitigating conditions are potentially relevant: AG ¶ 32(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; and AG ¶ 32(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. The first prong of AG ¶ 32(a) focuses on whether the criminal conduct was recent. There are no Abright line@ rules for determining when conduct is Arecent.@ The determination must be based on a careful evaluation of the totality of the evidence. See ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows Aa significant period of time has passed without any evidence of misconduct,@ then an administrative judge must determine whether that period of time demonstrates Achanged circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.@ Id. AG ¶¶ 32(a) and 32(d) are established. Applicant’s last criminal conduct was in October 2012, more than four years ago. She is remorseful and determined to not repeat past mistakes. There has been no further criminal conduct, and she successfully completed her period of probation. Guideline G, Alcohol Consumption The concern under this guideline is set out in AG ¶ 21: “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.” The following disqualifying conditions under this guideline are potentially relevant: AG ¶ 22(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; AG ¶ 22(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; AG ¶ 22(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 8 AG ¶ 22(f): relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program. The allegation in SOR ¶ 3.b that Applicant was diagnosed with alcohol dependence is not supported by substantial evidence. The 2009 chemical assessment did not specifically find alcohol dependence, and the April 2014 diagnosis was alcohol abuse, not alcohol dependence. Applicant’s two DUI convictions establish AG ¶ 22(a). Her admission of six years of binge drinking with a boyfriend establishes AG ¶ 22(c).2 Her diagnosis of alcohol abuse in April 2014 establishes AG ¶ 22(e).3 However, AG ¶ 22(f) is not established by Applicant’s relapse after the chemical assessment in 2009, because she did not undergo an alcohol rehabilitation program. The following mitigating conditions are potentially relevant: AG ¶ 23(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; AG ¶ 23(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); and AG ¶ 23(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 2 The National Institute on Alcohol Abuse and Alcoholism defines “binge drinking” as “a pattern of drinking that brings a person’s blood alcohol concentration (BAC) to 0.08 percent or above,” which typically occurs when a man has five or more drinks or a woman has four or more drinks within a two-hour period. Centers for Disease Control and Prevention, Fact Sheets – Binge Drinking, www.cdc.gov/alcohol/fact- sheets/binge-drinking.htm. 3 The diagnosis was by a licensed alcohol and drug counselor and not by a licensed clinical social worker. However, AG ¶ 22(e) is not limited to the specific credentials that are enumerated. Instead, it “contemplate[s] a broad range of providers who, by education and by position, are qualified to diagnose and treat alcohol dependence and other substance abuse disorders.” ISCR Case No. 07-00558 at 5 (App. Bd. Apr. 7, 2008). 9 social worker who is a staff member of a recognized alcohol treatment program. AG ¶¶ 23(a) and 23(b) are established by the passage of time, Applicant’s acknowledgment of her alcohol abuse, her completion of the outpatient treatment program, and her established pattern of abstinence. AG ¶ 23(d) is not fully established, because there is no evidence of a favorable prognosis. Whole-Person Concept 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. In applying the whole- person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. An 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. I have incorporated my comments under Guidelines F, J, and G in my whole- person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant was candid and sincere at the hearing. She has held a clearance for 15 years, apparently without incident. She appears to have put her alcohol abuse behind her, but she has not been proactive in putting her financial house in order. A security clearance adjudication is an evaluation of an individual’s judgment, reliability, and trustworthiness. It is not a debt-collection procedure. ISCR Case No. 09- 02160 (App. Bd. Jun. 21, 2010.) The adjudicative guidelines do not require that an individual make payments on all delinquent debts simultaneously, pay the debts alleged in the SOR first, or establish resolution of every debt alleged in the SOR. He or she need only establish a plan to resolve financial problems and take significant actions to implement the plan. See ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008). Applicant does not yet have a plan, and she has not taken any significant steps to resolve her financial problems. She testified that she intends to resolve her delinquent debts, but promises to pay delinquent debts in the future are not a substitute for a track 10 record of paying debts in a timely manner. ISCR Case No. 07-13041 at 4 (App. Bd. Sep. 19, 2008). After weighing the disqualifying and mitigating conditions under Guidelines F, J, and G, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns raised by her criminal conduct and alcohol consumption, but she has not mitigated the security concerns raised by her history of delinquent debts. Accordingly, I conclude she has not carried her burden of showing that it is clearly consistent with the national interest to continue her eligibility for access to classified information. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT Subparagraphs 1.a-1.k: Against Applicant Paragraph 2, Guideline J (Criminal Conduct): FOR APPLICANT Subparagraphs 2.a-2.b: For Applicant Paragraph 3, Guideline G (Alcohol Consumption) FOR APPLICANT Subparagraphs 3.a-3.b: For Applicant Conclusion I conclude that it is not clearly consistent with the national interest to continue Applicant’s eligibility for access to classified information. Clearance is denied. LeRoy F. Foreman Administrative Judge