1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) -------------------------- ) ISCR Case No. 16-02844 ) ) Applicant for Security Clearance ) Appearances For Government: Pamela C. Benson, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ HOWE, Philip S., Administrative Judge: On November 19, 2015, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On November 10, 2016, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines G, J, and F.1 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. Applicant acknowledged receipt of the SOR on November 22, 2016. He answered the SOR in writing on December 6, 2016, and requested a hearing before an administrative judge. Department Counsel was prepared to proceed on January 27, 2017, and I received the case assignment on February 13, 2017. DOHA issued a Notice 1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines, effective September 1, 2006. 2 of Hearing on February 27, 2017, and I convened the hearing as scheduled on March 16, 2017. The Government offered Exhibits 1 through 9, which were received without objection. Applicant testified and had no exhibits to offer because he attached his documents to his SOR Answer. DOHA received the transcript of the hearing (Tr.) on March 29, 2017 Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted. Procedural and Evidentiary Rulings Motion to Amend SOR On my own motion, I amended the SOR by striking the word “suspended” in the second sentence of Subparagraph 1.d and adding the word “served” in its place with a parenthesis following with the words, “(87 days suspended)” to reflect the facts as represented by Applicant and Department Counsel, correcting an error in the SOR. (Tr. 13, 14) Findings of Fact In his Answer to the SOR Applicant admitted the factual allegations in Paragraphs 1, 2, and 3 of the SOR, with explanations. He also provided additional information to support his request for eligibility for a security clearance. Applicant is 32 years old and divorced. He has two children. He has a bachelor’s degree in accounting and graduated in 2012. He works for a defense contractor since graduation and earns about $54,000 annually. He served in the U.S. Air Force from 2006 to 2011 and ended his service as an E-5. He currently has a security clearance. (Tr. 9-28; Answer; Exhibit 1) Applicant admits he was arrested for drunk driving in January 2007 while on active duty with the U.S. Air Force. He was given probation for two years and received a letter of reprimand from his commander (Subparagraphs 1.a and 2.a). Applicant attended the Air Force alcohol counseling program and completed it. It was about 10 hours long. (Tr. 35-37; Exhibits 2-5, 8) Applicant was on active Air Force duty in December 2009 and stationed overseas when he became involved in a physical altercation with other military members in a local restaurant. One of the other participants hit him in the head with a beer bottle, causing Applicant to receive 12 stiches and a concussion. His commander concluded alcohol played a part in the fight and referred Applicant to the U.S. Navy alcohol rehabilitation program in the United States for 30 days. He completed that program successfully and did not return to his assignment overseas (Subparagraph 1.b). (Tr. 37-41; Answer; Exhibits 2-5, 8) Applicant was arrested in the United States while on active Air Force duty and charged with improper lane usage and drunken driving (Subparagraphs 1.c and 2.a). He 3 received non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). His punishment was a grade reduction from E-5 (Staff Sergeant) to E-4 (Senior Airman). Applicant claims his pending divorce and military duties supervising a seven-person office as a staff sergeant while working 10 hours per day caused great stress. He started drinking again to relieve that stress. His exhibits pertaining to this incident show he was the non-commissioned officer of the quarter with a good performance evaluation in April 2008. (Tr. 23, 41-43; Answer; Exhibits 2-5, 8) In 2013 Applicant was arrested in March and charged with physical control of a vehicle while intoxicated. He was at a casino and drinking. He drove after drinking alcohol, but got tired and pulled off to the side of the road. He moved into the passenger side of the automobile to try to sleep. A police officer came by and charged him with being in control of the auto while intoxicated. He was sentenced to 90 days of jail time, with three days served and 87 days suspended. He was also ordered by the state court to attend a weekend alcohol awareness program. Applicant additionally received two years of unsupervised probation and his driver’s license was suspended for one year. From September to December of that year he attended and successfully completed an alcohol counseling program with a diagnosis of alcohol abuse. He has not had any alcohol treatment since December 2013. (Tr. 43-50; Answer; Exhibits 2-5, 8) While attending that course, in November 2013 Applicant was arrested again and charges with driving under the influence of alcohol. Again, Applicant was at a casino and drinking alcohol. He drove home, and while driving looked at his cell phone and had a collision with the slowed traffic in front of him. He left the scene of the accident. Applicant drove while suspended. He was not charged with a violation of his probation. He was sentenced to 65 days in jail with 60 days suspended and placed on one year’s probation. He was ordered to continue the alcohol treatment and counseling (Subparagraphs 1.d, 1.e, 1.f, and 2.a). Applicant contends that since 2013 he has not driven while intoxicated. He either calls a taxicab or uses a ridesharing service to take him home. He testified he sees his problem as drinking and driving. If he does not drive after drinking he is safe to drink. (Tr. 43-50; Answer; Exhibits 2-5, 8) Applicant continues to consume alcohol a few times per week. He consumes three beers usually each time he has alcohol beverages at home. He admitted he was intoxicated the week before the hearing, but it was at a bar behind his rented home so he could walk to and from it. He does get intoxicated once a month but does not drive when he is in that state. (Tr. 51-54) Applicant filed Chapter 7 bankruptcy in May 2016 with $12,691 in assets and $151,311 in liabilities. Applicant’s move toward filing bankruptcy starred when the 2006 model car he purchased for his cohabitant needed repairs of about $3,000. He returned the car to the seller and it demanded he pay the full amount of the loan. The lender was going to garnish his wages to get its money back, but he filed bankruptcy to avoid paying for the car while obtaining another car for his cohabitant. Applicant testified and wrote it in his Answer that the liabilities included $83,000 on a mortgage foreclosure that was under a Department of Veterans Affairs (VA) home loan program. The lender, he 4 stated, was fully compensated. His bankruptcy petition also included $49,135 in student loans although those loans cannot be discharged in bankruptcy. Applicant’s Answer states his liabilities without those two obligations were actually $18,176. His student loans are in forbearance, according to him. That ends in June 2017. He is trying to establish a repayment program to pay $200 monthly on the student loans. He also has a budget after completing the bankruptcy consumer counseling program. (Tr. 54-58, 68; Answer with VA statement on house loan and certificate of debtor education under the U.S. Bankruptcy Code; Exhibits 6-9) Applicant has about $2,000 in his savings account. He paid cash for a 1999 model car after turning in his other car during the bankruptcy. He saved himself about $400 per month on his car payment and auto insurance. Applicant’s student loans at the time of his bankruptcy filing were about $45,000. (Tr. 59-65; Answer; Exhibits 1-9) Applicant has decreased his gambling attendance to almost nothing at the present. The last time he went to a casino was four months earlier. (Tr. 67, 68) Applicant submitted his September 2015 to August 2016 employee evaluation showing he meets or exceeds expectations as a budget analyst for his employer. He also submitted four Air Force enlisted evaluations from 2006 to 2010 showing he was graded as meeting or exceeding requirements for his position. He testified he has 10 years of government service without a negative employee evaluation. His e-QIP states he works for a defense contractor as a budget analyst. (Tr. 78; Answer; Exhibit 1) 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 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, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing 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. 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 5 the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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, and 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 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 G: Alcohol Consumption The security concern relating to the guideline for Alcohol Consumption 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 guideline at AG ¶ 22 contains seven conditions that could raise a security concern and may be disqualifying. Four conditions may apply: (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 the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder; 6 (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder; ( e) the failure to follow treatment advice once diagnosed; and (f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder. Applicant has five alcohol-related driving or altercation incidents between 2007 and 2013. He went to alcohol counseling as order by the state courts after being convicted of the offenses adjudicated in the court. He received two military sanctions for incidents occurring when he served in the U.S. Air Force. AG ¶ 22 (a) is established. Applicant’s alcohol consumption while gambling and at other times since 2007 is part of continuing pattern of alcohol consumption. He habitually drinks alcohol, either in his home or away from it. Those actions caused his five incidents requiring law enforcement or the U.S. Air Force to take appropriate action. AG ¶ 22 (c) is established. Applicant did not abstain from alcohol consumption after attending the U.S. Navy treatment course or the court-ordered courses. He drove while intoxicated in November 2013 while attending one court-ordered course. Applicant was diagnosed as an alcohol abuser in one course. The documentation from that course is not in the record, so the exact situation is not noted, but Applicant admitted to that allegation in the SOR. He has not taken the advice given him by the alcohol counselors. He sees his problem as drinking and driving. If he does not drive after drinking alcohol, then he can consume alcohol as he desires. AG ¶ 22 (e) and (f) are established The guideline at AG ¶ 23 contains four conditions that could mitigate security concerns. Two conditions may apply: (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 judgment; and (b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations. Applicant’s last alcohol-related law enforcement problem was in 2013. Four years have passed without a reoccurrence of his past actions perpetrated over the previous six years. Now Applicant has a cohabitant and two children with a responsible job working for a defense contractor. His youthful thoughtlessness has passed. He knows 7 he cannot drink and drive. He drinks at home or walks to the bar near his house. He now recognizes his problem and has taken steps since the age of 28 years to remediate his past transgressions. AG ¶ 23 (a) and (b) are established. Guideline J: Criminal Conduct The security concern relating to the guideline for 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. The guideline at AG ¶ 31 contains five disqualifying conditions that could raise a security concern and may be disqualifying. Two conditions apply: (a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness; and (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. Appellant committed four alcohol-related offenses from 2007 to 2013. In 2013 he had two incidents requiring police intervention. Appellant has a history of criminal offenses. AG ¶ 30 (a) and (b) are established. The guideline in AG ¶ 32 contains four conditions that could mitigate criminal conduct security concerns. Three conditions may 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; (b) the individual was pressured or coerced into committing the act and those pressures are no longer present in the person's life; 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. 8 Applicant has not had a recurrence of his previous alcohol-relating driving incidents in the past four years. One incident was caused by his divorce from his first wife and the stress of his supervisory position in his military organization. Those stressors are now in the past. He has a family situation with two children he has to provide for and protect. He is focused on that effort. Applicant has a good employment record as shown by his civilian and military job performance reports going back to 2006. They do not cast doubt on his trustworthiness, reliability, and good judgment for his conduct. AG ¶ 32 (a), (b), and (d) are established. Guideline F, Financial Considerations The security concern relating to the guideline for Financial Considerations is set out in AG & 18: Failure 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. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage. The guideline at AG ¶ 19 contains nine disqualifying conditions that could raise security concerns. Three conditions are applicable to the facts found in this case: (a) inability to satisfy debts; (b) unwillingness to satisfy debts regardless of the ability to do so; and (c) a history of not meeting financial obligations. Applicant accumulated about $151,000 in delinquent debt from 2008 to 2016. In May 2016 he filed Chapter 7 bankruptcy to rid himself of these financial burdens. His student debt could not be discharged by law. But he alleviated his financial burden of his house he purchased during his first marriage without paying any of his money on the mortgage. He changed his car loans and rid himself of his other debts that as an accountant he could not budget to pay in good faith. The evidence raises all of the above security concerns, thereby shifting the burden to Applicant to rebut, extenuate, or mitigate those concerns. 9 The guideline in AG ¶ 20 contains six conditions that could mitigate security concerns arising from financial difficulties. Two conditions may be applicable: (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, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances; and (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. Applicant bought a house while married to his first wife. Then they divorced and he assumed the mortgage. That problem was beyond his control. He found he could not repair the house defects inexpensively so he could sell it. He had a VA loan. He also had court and attorney fees from his 2013 driving with alcohol-related offenses. He could not afford to repay his $45,000 in student loans while all the other debts were unpaid. He consulted an attorney who prepared and filed the Chapter 7 bankruptcy in May 2016. The divorce and the house created the financial burden preventing Applicant from managing his other debt. He will establish a repayment program for his student loans in June 2017, according to his testimony. While filing bankruptcy is not repaying his debts, at least he did not ignore them and attempted to take some action. His acknowledgment of his financial problem is taking some responsibility for his debts. In other ways he reduced some of his current costs so he can better manage his income. AG ¶ 20 (b) has partial application. Applicant filed bankruptcy and rents a home. He turned in his vehicle during the bankruptcy and purchased a 1999 vehicle that has no debt and lower insurance costs. AG ¶ 20 (c) applies because of Applicant exerted control over his financial situation and took some action. 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 an applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): (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 10 for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. AG ¶ 2(c) requires each case must be judged on its own merits. 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 the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant’s situation as presented is one of increasing maturity and responsibility after five inappropriate incidents between 2007 and 2013. His growing family has focused his attentions away from excessive alcohol consumption toward their care and support. There does not appear to be the potential for pressure, coercion, exploitation, or duress because of his changed attitude and actions. He has a responsible accounting position with good job evaluations. Applicant recognized his financial and drinking problems. He took action to control them. He seemed contrite and admitted his past mistakes at the hearing. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his alcohol consumption, criminal conduct, and financial considerations. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline G: FOR APPLICANT Subparagraph 1.a: For Applicant Subparagraph 1b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: For Applicant Subparagraph 1.f: For Applicant Paragraph 2, Guideline J: FOR APPLICANT Subparagraph 2.a: For Applicant Paragraph 3, Guideline F: FOR APPLICANT Subparagraph 3.a: For Applicant 11 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. _________________ PHILIP S. HOWE Administrative Judge