1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In re: ) ) ) ISCR Case No. 16-00364 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ Curry, Marc E., Administrative Judge: Applicant mitigated the personal conduct, criminal conduct, and drug involvement security concerns, but failed to mitigate the financial considerations security concerns. Clearance is denied. Statement of the Case On May 27, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guidelines F, financial considerations, E, personal conduct, H, drug involvement, and J, criminal conduct. The DOD CAF took the action under Executive Order (EO) 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 for Determining Eligibility for Access to Classified Information (AG) effective within the DOD on September 1, 2006. On June 8, 2016, Applicant answered the SOR allegations, admitting all of the allegations except subparagraphs 1.b and 1.d, and requested a hearing. The case was 2 assigned to me on December 6, 2016. On February 13, 2017, the Defense Office of Hearings and Appeals issued a notice of hearing scheduling Applicant’s case for April 3, 2017. The hearing was held as scheduled. I received five Government exhibits (GE 1 – GE 5), and considered the testimony of Applicant and three character witnesses. The transcript (Tr.) was received on April 10, 2017. While my decision was pending, Security Executive Agent Directive 4 was issued establishing National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligiblty to hold a sensitive position. The AG supersede the adjudicative guidelines implemented in September 2006 and are effective for any adjudication made on or after June 8, 2017. Accordingly, I have adjudicated Applicant’s security clearance eligibility under the new AG. Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. Findings of Fact Applicant is a 31-year-old single man. He has a high school education and he has earned some college credits. For the past two years, he has worked for a defense contractor as an electronics mechanic assembler. (Tr. 14) He is highly respected on the job. According to his program manager, he has a strong work ethic and is “dedicated to getting the job done.” (Tr. 33) According to his immediate supervisor, he is “a very hard worker” who is trustworthy and responsible.” (Tr. 29) Since 2007, Applicant has incurred approximately $17,000 of delinquent debt, as alleged in the SOR. All of these bills except the bill alleged in SOR subparagraph 1.b, as duplicated in SOR subparagraph 1.d, totaling $1,347, constitute medical expenses stemming from a 2007 motor cycle accident, a kidney stone removal in 2009, and an emergency appendectomy received between 2012 and 2014. Applicant had no health insurance when he suffered these medical problems. (Tr. 16) Thus far, he has made a partial payment towards the satisfaction of the debt alleged in SOR subparagraph 1.l, totaling $95. (Tr. 23) The remainder of the debts are outstanding. Applicant contends that many of the debts are unpaid because he has been unable to discern their identity, as they are unidentified in the SOR (subparagraphs 1.e, 1.f, 1.i, 1.j, and 1.m – 1.o). Applicant has approximately $2,000 of monthly discretionary income. (Tr. 25) He deposits about $200 per month into a savings account. He has never attended credit counseling. (GE 2 at 6) The debt alleged in SOR subparagraph 1.b, totaling $1,347, constitutes court- ordered restitution stemming from an arrest after Applicant’s employer caught him stealing merchandise (see also, SOR subparagraph 2.a and SOR subparagraph 4.a). The court ordered him to pay restitution through a two-year payment plan. (Tr. 23) The charge was initially a misdemeanor, but was later converted to a felony, per state law, after Applicant missed one of the restitution payments. (Tr. 23-24) Applicant contends that he satisfied the restitution payments in full by March 2015. (Tr. 24) He provided no supporting evidence. 3 Applicant stole the merchandise because at the time, he had been going through “some tough times just trying to pay bills and feed [him]self.” (Tr. 20) Applicant smoked marijuana recreationally from 2002 through 2012. His use ranged from weekly to monthly. He has not used marijuana since 2012 and no longer associates with his marijuana-using friends. (AE 2 at 5) Policies The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered 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 the adjudicative process. The administrative judge’s overall adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 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 ¶ 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. 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 applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion to obtain a favorable security 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 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. Section 7 of EO 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). 4 Analysis Guideline F, Financial Considerations The security concerns about financial considerations are set forth in AG ¶ 18, as follows: 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 or sensitive information. Applicant’s ongoing financial problems trigger the application of disqualifying conditions AG ¶ 19(a), “inability to satisfy debts,” and AG ¶ 19(c), “a history of not meeting financial obligations.” The following mitigating conditions are potentially applicable: 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, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances; AG ¶ 20(c) the individual has received or is receiving counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control; and AG ¶ 20(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts. The majority of Applicant’s debts relate to medical expenses he incurred after a succession of health problems or injuries that occurred when he had no health insurance. The first prong of AG ¶ 20(b) applies. Conversely, Applicant has only made one payment towards the satisfaction of any of the debts, despite having $2,000 of monthly discretionary income. Applicant’s testimony that his debt payment efforts have been stymied by his inability to identify some of the creditors has merit, as multiple creditors alleged in the SOR are unidentified. However, this argument is undercut by the fact that the debts owed to identified creditors, totaling $6,500, are unpaid. Under these circumstances, neither the second prong of AG ¶ 20(b), nor the remaining mitigating conditions, listed above, apply. Applicant has not mitigated the financial considerations security concerns. 5 Guideline J, Criminal Conduct Under this guideline, “criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness.” Applicant’s arrest for stealing merchandise from his employer in August 2011 triggers the application of AG ¶ 31(b), ”evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.” Applicant’s criminal conduct was isolated and occurred nearly six years ago. He has been working for his current employer for the past two years and he is highly regarded on the job. Under these circumstances, the following mitigating conditions under AG § 32 apply: (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 (d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement, apply. Applicant has mitigated the criminal conduct security concern. Guideline E, Personal Conduct Under this guideline, “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 ¶ 15) Applicant’s 2011 arrest triggers the application of AG ¶ 16(d)(1), “untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information.” Applicant’s conduct was isolated. Moreover, “so much time has passed . . . that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.” (AG ¶ 17(c)) He has mitigated the personal conduct security concern. Guideline H, Drug Involvement Under this guideline, “the illegal use of a controlled substance . . . can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical and psychological impairment, and because it raises questions about a person’s ability or willingness to comply with laws and regulations.” (AG ¶ 25) Applicant’s 6 use of marijuana from 2006 to 2012 triggers the application of AG ¶ 26(a) “any substance misuse.” Applicant’s marijuana use occurred during his early to mid-twenties. He has not used marijuana in approximately five years. Currently, he is a well-respected employee who performs well on the job. Considering these circumstances, I conclude that AG ¶ 26(a), “the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment,” applies, and that Applicant has mitigated the drug involvement security concern. Whole-Person Concept Under the whole-person concept, the administrative judge must consider the totality of an applicant’s conduct and all relevant circumstances in light of the nine adjudicative process factors in AG ¶ 2(a).1 In evaluating the financial considerations security concern, I paid particular attention to the longstanding nature of Applicant’s financial problems and its nature and seriousness, as his financial problems once prompted him to steal from his employer. Considering this case in light of the whole-person concept, I conclude that Applicant has not mitigated the security concern. 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: AGAINST APPLICANT Subparagraphs 1.a – 1.o: Against Applicant Paragraph 2, Guideline E: FOR APPLICANT Subparagaph 2.a: For Applicant Paragraph 3, Guideline H: FOR APPLICANT Subparagraph 3.a: For Applicant 1 The factors under AG ¶ 2(a) are as follows: (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. 7 Paragraph 4: Guideline J: FOR APPLICANT Subparagraph 4.a: For 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. _____________________ Marc E. Curry Administrative Judge