1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02006 ) Applicant for Security Clearance ) Appearances For Government: Charles Hale, Esq., Department Counsel For Applicant: Pro Se ______________ Decision ______________ CERVI, Gregg A., Administrative Judge: Applicant has mitigated the financial considerations and the personal conduct security concerns are not justified by the evidence. Eligibility for access to classified information is granted. Statement of the Case Applicant completed a Questionnaire for National Security Positions (SF 86)1 on September 22, 2015. On July 29, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines F, financial considerations, and E, personal conduct.2 1 Also known as a Security Clearance Application (SCA). 2 The action was taken 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 (Directive) (January 2, 1992), as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), implemented by the DOD on September 1, 2006. 2 Applicant responded to the SOR on August 29, 2016, and requested a hearing before an administrative judge. Department Counsel amended the SOR to add allegation ¶ 2.b to the SOR. Applicant answered the amended SOR on October 31, 2016. The Defense Office of Hearings and Appeals issued a notice of hearing on December 13, 2016, and the hearing was convened on January 31, 2017. Government Exhibits (GE) 1 through 8 were admitted in evidence without objection.3 Applicant testified but did not submit exhibits until after the hearing. Post-hearing, Applicant Exhibits (AE) A through O were admitted without objection. DOHA received the hearing transcript (Tr.) on February 8, 2017. Findings of Fact The SOR alleged under Guideline F that Applicant is delinquent on five accounts including collection accounts, a charged-off credit card debt, and a mortgage foreclosure in 2012. In addition, the SOR alleged under Guideline E, falsification of his 2015 SCA for failure to disclose all debts except the mortgage. The SOR was amended by Department Counsel before the hearing to allege an additional allegation of falsification under Guideline E of Applicant’s SCA for failing to disclose that his security clearance was revoked in 2000. Applicant denied the SOR allegations in his answer and provided explanations. Applicant is 42 years old and is employed as a technical trainer for a defense contractor.4 He was married in 1993 and divorced in 1998, and again married in 2005 and divorced in 2014. He has five children, ages 9, 20, 21, and 24-year-old twins. None of his children live with him. He honorably served in the U.S. Army from 1992 to 2013 when he retired as a Sergeant First Class (E-7) in 2013. He was awarded a Bronze Star while deployed to Iraq and a Meritorious Service Medal at retirement. Applicant earned a master’s degree in 2009 and is working toward a doctorate in Business Administration. He has held his most recent security clearance since 2005. Appellant claimed he was unaware of his delinquent debts when he completed his 2015 SCA because they were either accounts acquired by his former spouse while he was stationed overseas or they became delinquent while he was deployed. He also asserted that he was an authorized user of a credit card account that belonged to his father who had cancer. Applicant did not have responsibility for paying the account and the matter is part of his father’s probate estate. The debt was removed from his credit report. Other debts were paid once Applicant learned of them during his Office of Personnel Management (OPM) interview. He purchased a home in 2005 but his ex- spouse failed to pay the mortgage while Applicant was stationed overseas. His spouse left the home in 2010 and it remained vacant for two years. He stopped payment on the mortgage in 2012 as he could not afford the vacant home and his rent while stationed in 3 DC submitted the “discovery letter” dated June 15, 2016 and sent to Applicant, which was admitted as Hearing Exhibit (HE) 1. 4 Tr. 120. 3 another state. He unsuccessfully tried to sell the home in 2013 and offered to relinquish it to the lender in a deed-in-lieu of foreclosure. The lender instead offered to modify the terms of the mortgage, but Applicant had no intent to return to the home. The property was eventually foreclosed and sold by the lender in March 2015. He has not been notified of a deficiency owed. After the hearing, Applicant requested a satisfaction of mortgage letter from the lender, but a final response has not been provided. Applicant’s security clearance was revoked in 2000 while he was on active duty, after he became involved in a scheme to mail cocaine from Panama to his home for further distribution. Applicant dated a woman in 1998 that asked permission to use his home address to receive a package for her grandmother. Applicant claimed he was unaware of its contents. Law enforcement authorities intervened and arrested the woman after Applicant agreed to assist in a sting operation. Applicant was later questioned by Army investigators and admitted that he knew the package contained cocaine and made false statements with regard to his involvement to law enforcement authorities. He later recanted his confession, claiming that Army investigators used psychological tactics and threats of incarceration to scare him into admitting involvement. No criminal or disciplinary action was taken as a result of these allegations. After his clearance was revoked in 2000, Applicant wrote a letter (undated but likely in or around 2000) to a Congressman5 in an effort to have it reinstated. His clearance was reinstated in 2005. Applicant reapplied for a clearance in 2015, and failed to disclose the previous revocation.6 In his answer to the SOR, Applicant denied that he intentionally failed to disclose the clearance revocation in his SCA. He claimed he had no recollection of the revocation when he completed his SCA since the event occurred “17 years” ago and that the failure to report it was an oversight. No law enforcement or Army records were provided to explain the 1998 drug mailing incident or statements made thereto, however, Applicant’s letter requesting reinstatement of his clearance is part of the record. Applicant submitted three character letters and an employee achievement award. The letters generally attest to his good moral character, integrity, reliability and community involvement. Law and Policies When evaluating an applicant’s suitability for a security clearance, the 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, which are to be used in evaluating an applicant’s eligibility for access to classified information. 5 GE 2. 6 Applicant did not report any clearance actions before 2005 in his SCA. He also did not report the drug mailing incident on his SCA or voluntarily mention it during his first OPM interview, despite the discussion of his 2000 clearance revocation during the interview. The Government did not allege these omissions as falsifications. 4 These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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. 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 the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable security clearance decision.7 The Supreme Court stated that the burden of proof is less than a preponderance of the evidence.8 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.” It is well-established law that no one has a right to a security clearance. As noted by the Supreme Court in Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.” Under Egan, Exec. Or. 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security.9 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 safeguard 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 Exec. Or. 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 Exec. Or. 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). 7 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). 8 Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”); Duane v. DOD, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a security clearance). 9 Egan, 484 U.S. at 531. 5 Analysis Guideline F, Financial Considerations The security concern for financial considerations 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. The guideline notes several conditions that could raise security concerns under AG ¶ 19. The following are potentially applicable in this case: (a) inability or unwillingness to satisfy debts; and (b) a history of not meeting financial obligations. Applicant incurred long-standing delinquent debts, which were largely unresolved until he was made aware of them during his OPM interview. The above disqualifying conditions apply. Conditions that could mitigate the financial considerations security concerns are provided under AG ¶ 20. I have considered them all, and believe the following are potentially applicable: (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, and10 10The Appeal Board has previously explained what constitutes a “good faith” effort to repay overdue creditors or otherwise resolve debts: 6 (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. Once Applicant became aware of the delinquent debts, he took appropriate action to resolve them and dispute the debt that did not belong to him. In addition, he made good-faith efforts to resolve the mortgage obligation he had while married, but the lender chose to foreclose. Applicant has requested a statement of satisfaction of the mortgage. Should the lender reply with a verified deficiency balance owed, I expect that Applicant will continue his efforts to finally resolve the debt. I believe Applicant’s other delinquencies have been resolved and security concerns arising from the debts are no longer present. His efforts so far have been adequate to demonstrate that his financial circumstances are under control and that he is willing and able to meet his financial obligations. AG ¶ 20 (a), (b), (d) and (e) apply. Guideline E, Personal Conduct AG ¶ 15 explains why personal conduct is a security concern stating: 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. The relevant disqualifying condition in this case is: AG ¶ 16(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. In order to qualify for application of [the “good faith” mitigating condition], an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term “good-faith.” However, the Board has indicated that the concept of good-faith “requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.” Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy) in order to claim the benefit of [the “good faith” mitigating condition]. (internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). 7 When falsification allegations are controverted, as in this case, the Government has the burden of proving the allegations. An omission, standing alone, does not prove falsification. An administrative judge must consider the record evidence as a whole to determine an applicant’s state of mind at the time of the omission.11 An applicant’s level of education and business experience are relevant to determining whether a failure to disclose relevant information on a security clearance application was deliberate.12 Applicant asserted that when he completed his SCA in 2015, he was not aware of the delinquent debts in his name except for the mortgage foreclosure, which he listed. The record does not support that Applicant intentionally failed to disclose his 2000 security clearance revocation. Applicant stated that he forgot about the revocation of his clearance since it was 15 years since it occurred and he did not report any clearance actions prior to his last clearance, which was granted in 2005. Applicant’s letter to his Congressman requesting reinstatement of his clearance, written in or around 2000, does not serve to prove a refreshed mindset when Applicant completed his 2015 SCA. Although it shows that Applicant was aware of the revocation in or about 2000, it does not show intent to falsify his 2015 SCA. There has been insufficient evidence presented to show Applicant deliberately and intentionally misled the government when he completed his SCA. Although Applicant’s are expected to carefully read the questionnaire and answer truthfully, based on the evidence in the record, Applicant’s omissions fail to rise to the level of intentional or deliberate falsifications. 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 relevant 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 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. I considered all of the 11 See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004). 12 ISCR Case No. 08-05637 (App. Bd. Sep. 9, 2010). 8 potentially disqualifying and mitigating conditions in light of all the evidence in favor of and against Applicant, and the facts and circumstances surrounding this case. I have incorporated my findings of fact and comments under Guidelines F and E in this whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under Guidelines F and E, I have also considered Applicant’s actions to resolve his financial issues and the effect of his deployments and divorce on his financial situation. In addition, I considered the passage of substantial time since Applicant’s clearance was revoked, the fact that he has had a clearance since 2005, the unlikelihood of recurrence, and his favorable character references. Overall, the record leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. 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 Subparagraph 1.a – 1.e: For Applicant Paragraph 2, Guideline E: For Applicant Subparagraph 2.a and 2.b: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. ________________________ Gregg A. Cervi Administrative Judge