1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) REDACTED ) ISCR Case No. 16-01129 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MENDEZ, Francisco, Administrative Judge: Applicant presented sufficient evidence to mitigate security concerns raised by two alleged drunk driving incidents, but his financial situation continues to raise a security concern. Clearance is denied. Statement of the Case On July 19, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) sent Applicant a Statement of Reasons (SOR) alleging security concerns under the financial considerations, alcohol consumption, and personal conduct guidelines.1 Applicant answered the SOR and requested a hearing. On April 13, 2017, a date mutually agreed to by the parties, the hearing was held. Applicant testified at the hearing and the exhibits offered by the parties were admitted into the administrative record without objection. (Government Exhibits 1 – 7 and Applicant’s 1 This action was taken under Executive Order (E.O.) 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. 2 Exhibits A – D.) The transcript (Tr.) was received on April 21, 2017, and the record closed on May 12, 2017.2 Findings of Fact Applicant, 34, is a high school graduate and twice divorced. He served on active duty in the U.S. military from 2002 to 2008. His service in the military included an 18- month deployment to Iraq. He has nagging injuries, which he suspects are connected to his military service. He has not gone to the Department of Veteran’s Affairs to have his injuries assessed to determine whether they are service-connected and, if so, the extent of his disability, because he does not view his injuries as significant or daunting as those of others who served with him and returned from Iraq. He received an honorable discharge upon separating from active duty and then served in the reserves for a time. He was first granted a security clearance while in the military.3 After leaving active duty in 2008, Applicant was unable to find gainful employment until 2013, when he was hired as a federal contractor. He submitted a security clearance application in 2015 in connection with this job. On his application, Applicant disclosed that he had twice been charged with drunk driving. Specifically, in 2008, shortly before separating from the military, Applicant and a friend who had recently returned from a deployment to Iraq went out drinking. Applicant consumed too much alcohol and made the poor decision of getting behind the wheel. He was arrested, charged, and convicted of drunk driving. Applicant had no further alcohol-related incidents until 2014. On this occasion, Applicant went out to dinner and on the way home had a bathroom emergency. He was pulled over for speeding short of reaching a gas station with a bathroom. He tried to explain the situation to the police officer who had stopped him after a short chase, but the exasperated officer arrested him for drunk driving. His blood alcohol content level was registered at a .14. He went to court and the drunk driving charge was reduced to reckless driving. He pled nolo contendere to the reduced charge and was found guilty. He successfully completed a drunk driving course that was ordered by the court. He also voluntarily obtained and successfully completed alcohol counseling, and attended AA. He has not been involved in any further criminal conduct, alcohol related or otherwise. At the time Applicant submitted the clearance application, the drunk driving charge was still pending. He freely disclosed the matter on the application. Applicant accumulated delinquent debt shortly before and after leaving active duty in 2008. The SOR lists 11 delinquent debts totaling about $40,000. The debts include a 2 Correspondence with the parties, the notice of hearing, and case management order are attached to the record as Appellate Exhibits I – III. Applicant submitted Exhibits A – D post-hearing and they consist of: (a) his May 11, 2017 email, (b) documents related to the 2014 reckless driving conviction, (c) DD Form 214 (Member-1 form was provided which does not contain discharge characterization), and (d) documents from the credit repair firm. 3 Based on the limited evidentiary record, I cannot easily determine what impact, if any, Applicant’s military service and service-connected injuries had to the security concerns at issue. 3 $120 collection account for cell phone service (SOR 1.k), a $3,800 collection account for a jewelry store account (SOR 1.i), and two student loan accounts in collection status for over $12,000 (SOR 1.a and 1.c). On the 2015 security clearance application, Applicant noted that he was aware of a number of delinquent debts appearing on his credit report and that he was in the process of addressing his debts. During his April 2015 clearance interview, Applicant was asked about the delinquent accounts appearing on his credit reports, including a number of the SOR debts. He promised to look into the debts and address them. He took no such action and testified that he had no good explanation for his inaction. (Tr. 48-49) Applicant recently moved in with his girlfriend and they are splitting living expenses. After paying recurring expenses, Applicant estimates his disposable or net monthly income is approximately $2,000. He testified that he had paid or was paying two of the SOR debts, namely, the $120 collection account for cell phone service referenced in SOR 1.k and the $3,800 collection account for a jewelry store account listed in SOR 1.i. (Tr. 38-41) He did not submit any evidence to corroborate his testimony. He provided no evidence showing he reached out to any of his overdue creditors and paid his debts, or otherwise resolved any of the SOR debts. Applicant claims that some of the SOR debts may be debts incurred by his father with whom he shares the same name, or could be related to his failed marriages, or could be the result of identity theft. Shortly before the hearing, Applicant hired a credit repair firm. (Tr. 48) He provided documentation post-hearing showing that the credit repair firm successfully disputed a number of negative items appearing on some of his credit reports, including potentially the debts referenced in SOR 1.a, 1.c, and 1.e. Applicant admitted all the SOR debts in his Answer, and the record is silent as to the actual basis for the removal of some negative credit entries that appeared on one or more of Applicant’s credit reports.4 At hearing, Applicant acknowledged that he was at the beginning stages of getting his finances in order. (Tr. 37) Policies “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Individual applicants are eligible for access to classified information “only upon a finding that it is clearly consistent with the national interest” to authorize such access. E.O. 10865 § 2. 4 Applicant was twice advised on the record that if he submitted documentary evidence post-hearing that the documents needed to be clear and unambiguous on their face, and that he needed to provide a full and detailed explanation regarding the relevance of any post-hearing documents. Tr. 40-41, 50. It is unclear from the record whether the negative entries removed from one or more of Applicant’s credit reports occurred after Applicant challenged the validity of the debts due to identity fraud, or the credit agencies are no longer able to report the negative information because of the age of the debt, or other reason. See generally ISCR Case No. 15-03527 (App. Bd. Dec. 29, 2016) (adverse clearance decision affirmed where applicant failed to present clear, concise, and unambiguous evidence regarding SOR debts). 4 When evaluating an applicant’s eligibility for a security clearance, an administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations, the guidelines list potentially disqualifying and mitigating conditions. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies the guidelines in a commonsense manner, considering all available and reliable information, in arriving at a fair and impartial decision. Department Counsel must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. Applicants are responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven . . . and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15. Administrative Judges are responsible for ensuring that an applicant receives fair notice of the issues raised, has a reasonable opportunity to litigate those issues, and is not subjected to unfair surprise. ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014). In resolving the ultimate question regarding an applicant’s eligibility, an administrative judge must resolve “[a]ny doubt concerning personnel being considered for access to classified information . . . in favor of national security.” AG ¶ 2(b). Moreover, recognizing the difficulty at times in making suitability determinations and the paramount importance of protecting national security, the Supreme Court has held that “security clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531. 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. 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 an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Analysis Guidelines E and G, Personal Conduct and Alcohol Consumption The SOR alleges that Applicant’s drunk driving arrests in 2008 and 2014 raise the personal conduct and alcohol consumption security concerns. See AG ¶¶ 15, 21. Applicant mitigated the security concerns raised by these two alcohol-related incidents. He voluntarily obtained counseling following the latest incident three years ago and has not been involved in another incident, alcohol-related or otherwise, which raises a concern about his judgment and ability to follow rules and regulations. He candidly disclosed this potentially adverse information on his security clearance application and later fully discussed the incidents during the processing of his case, including freely 5 disclosing adverse information at hearing that was unknown to the Government (or, at the least, not present on the face of the evidence offered by the Government). Accordingly, Applicant provided sufficient evidence to mitigate the security concerns raised by the two drunk driving arrests alleged in the SOR. See AG ¶¶ 17(c), 17(d), 22(a), 22(b), 22(d) (applicable mitigating conditions that Applicant established in full or in part). Guideline F, 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. As stated in the relevant portion of AG ¶ 18 quoted above, the security concern at issue is not limited to a consideration of whether a person with financial issues might be tempted to compromise classified information or engage in other illegality to pay their debts. It also addresses the extent to which the circumstances giving rise to delinquent debt cast doubt upon a person’s judgment, self-control, and other qualities essential to protecting classified information.5 In assessing Applicant’s case, I considered the following pertinent disqualifying and mitigating conditions: AG ¶ 19(a): inability or unwillingness to satisfy debts; AG ¶ 19(c): a history of not meeting financial obligations; 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; 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 5 ISCR Case No. 11-05365 at 3 (App. Bd. May. 1, 2012). 6 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. Applicant admits all the SOR debts. He has been aware of the majority of these debts since at least the security clearance interview, which took place three years ago. He has repeatedly promised to take action to address and resolve these debts, but waited until shortly before the hearing to start putting his financial house in order. He has been gainfully employed as a federal contractor since 2013, and estimates that his current monthly disposable income is $2,000. AG ¶¶ 19(a) and (c) apply. None of the mitigating conditions fully apply. Individuals applying for a security clearance are not required to be debt free. They are also not required to resolve all past-due debts simultaneously or even resolve the delinquent debts listed in the SOR first. However, they are expected to present documentation to refute, explain, or mitigate security concerns raised by their circumstances, to include the accumulation of delinquent debt. Moreover, they bear the burden of showing that they manage their finances in a manner expected of those granted access to classified information.6 Applicant failed to meet his burden. Whole-Person Concept Under the whole-person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of an applicant’s conduct and all the relevant circumstances. An administrative judge should consider the whole-person factors listed at AG ¶ 2(a). I hereby incorporate my above analysis and highlight some additional whole-person factors. Applicant honorably served this nation in the military, including a lengthy deployment to Iraq. He incurred injuries (apparently) connected to his military service. He has held a security clearance for years without apparent issue beyond those discussed herein. This favorable evidence raises favorable inferences regarding his suitability. However, a review of the record shows that after years of procrastinating Applicant has just started to take the initial steps to put his financial house in order.7 He has been aware for some time that his delinquent debts placed his security clearance eligibility (and continued employment that is dependent on maintaining a clearance) in jeopardy. He may in the future be able to re-establish his security clearance eligibility by showing that he is responsibly managing his personal finances in the manner expected of all clearance holders. At present, though, the questions and doubts about his eligibility that were raised by his financial situation remain. 6 ISCR Case 07-10310 at 2 (App. Bd. Jul. 30, 2008). 7 See Tr. 14 (in opening statement, Applicant admits he put the debts on the proverbial “back burner”). 7 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 (Financial Considerations): AGAINST APPLICANT Subparagraphs 1.a – 1.k: Against Applicant Paragraph 2, Guideline G (Alcohol Consumption): FOR APPLICANT Subparagraphs 2.a – 2.b: For Applicant Paragraph 3, Guideline E (Personal Conduct): FOR APPLICANT Subparagraph 3.a: For Applicant Conclusion In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for continued access to classified information. Applicant’s request for a security clearance is denied. ____________________ Francisco Mendez Administrative Judge