1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01132 ) Applicant for Security Clearance ) Appearances For Government: Pamela Benson, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant failed to mitigate the security concerns under Guideline J, criminal conduct, and Guideline F, financial considerations. He refuted the security concerns under Guideline E, personal conduct. Eligibility for access to classified information is denied. Statement of the Case On July 12, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline J, criminal conduct, Guideline F, financial considerations, and Guideline E, personal conduct. The action was taken 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 (AG) effective within the DOD on September 1, 2006. On June 8, 2017, new AG were implemented and are effective for decisions issued after that date. 2 Applicant answered the SOR on August 2, 2016, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s file of relevant material (FORM). Applicant received it on November 2, 2016. He was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation within 30 days of receipt of the FORM. The Government’s evidence is identified as Items 1 through 5. Applicant did not provide a response to the FORM, object to the Government’s evidence, or submit documents. Items 1 through 5 are admitted into evidence. The case was assigned to me on October 1, 2017. Findings of Fact Applicant admitted the SOR allegations in ¶¶ 1.a, 2.a through 2.e, 2.h, and 2.m. He denied the remaining allegations in the SOR. After a thorough and careful review of the pleadings and exhibits submitted, I make the following findings of fact. Applicant is 28 years old. He earned a General Equivalency Diploma. He is not married. He has three children. He disclosed one period of unemployment on his security clearance application (SCA) from August 2007 to March 2009. He has worked for his present employer, a federal contractor, since May 2013.1 Applicant disclosed in his September 2014 SCA that he was employed as a driver from May 2010 to July 2012. He stated the reason he left the job was “got let go for taking company gas card an[d] filling up my vehicle . . . fired.” He also stated “fired for taking company fuel card to fill up my vehicle.”2 Applicant confirmed during his background investigation with a government investigator that he was fired from his job for using a company fuel card to fill up his personal vehicle with gasoline. He told the investigator that his ex-girlfriend, after they broke up, called his employer to inform them about what Applicant was doing. He told the government investigator that his ex-girlfriend also used the card to fill up her car multiple times with gas. Applicant told the government investigator that he was subsequently confronted by his employer and fired.3 In Applicant’s answer to the SOR, he stated that his employer confronted him about the unauthorized use of the gas card. He stated he was told he could admit the allegation and go home or if they found out the allegation was true he would be fired. He stated, “I was already mad so I got up and quit.” He stated in his SOR answer that his employer “never [k]new I was getting gas. I walked out and quit before anything had happened.”4 1 Items 1, 2. 2 Item 2. 3 Item 5. 4 Item 1. 3 Applicant was arrested in January 2015 and charged with driving while intoxicated (DWI); carrying a concealed weapon; refused blood/breath test; reckless driving; and failure to wear a seatbelt. He was found guilty of DWI and carrying a concealed weapon. He was sentenced to 12 months in jail, suspended; to pay a $500 fine; 12 months suspension of his driver’s license; and ordered to complete 10 Alcohol Safety Action Program (ASAP) education classes. He was placed on probation and was required to have an ignition interlock on his vehicle for six months.5 In his answer to the SOR, Applicant stated that he had one bad night when he was arrested. He stated the handgun in the car did not belong to him, but belonged to his friend. It was located in a jacket in Applicant’s car. He admitted he made a mistake. No other information was provided.6 In March 2015, Applicant was charged and found guilty of driving with revoked/suspended license. He was fined $500. In his SOR answer, he indicated he had paid this fine in March 2016 with his federal income tax refund.7 Credit reports from October 2014, February 2016, and Applicant’s admissions substantiated the judgments and delinquent debts alleged in the SOR.8 The SOR alleged five judgments (¶ 2.j - $1,326, filed May 2010; ¶ 2.k - $2,488, filed April 2012; ¶ 2.l - $11,501, filed February 2014; ¶ 2.m - $5,110, filed August 2014; and ¶ 2.n - $1,789, filed October 2014). During Applicant’s June 2015 background interview with a government investigator, he was confronted with the judgments alleged in SOR ¶¶ 2.j, 2.k, and 2.l. He was unfamiliar with those judgments and advised the investigator that he would research them and pay them through a payment plan. In his answer to the SOR, he stated he did not know what the judgment was for in SOR ¶ 2.j. He acknowledged the judgment in SOR ¶ 2.k, but stated he paid it in full. Regarding the judgment in SOR ¶ 2.l, he indicated he and his father have the same name and this judgment “sounds like an account”9 his father had. He further stated, “I’m just now seeing this on my account.”10 He acknowledged the judgment in SOR ¶ 2.m and stated that money was tight and he got behind in payments.11 Applicant did not provide evidence that he satisfied or resolved any of the alleged judgments or took actions to research or dispute them. 5 SOR ¶ 1.a alleged the January 2015 criminal offenses and that Applicant had not completed all of the conditions of his sentence, to include that he had not paid the fine. No evidence was presented by the Government to support that he had not completed the terms of his sentence and that the fine was unpaid. SOR ¶ 2.b alleged that Applicant failed to pay fines imposed for his conduct alleged in SOR ¶¶ 1.a and 1.b. The Government did not provide evidence to support this allegation, and I find in Applicant’s favor. 6 Item 1. 7 In Applicant’s SOR answer he refers to “all my court fines” were paid. It is unknown if he is also referring to the fine imposed for the January 2015 DWI and carrying a concealed weapon charges. 8 Items 1, 3, 4, 5. 9 Item 1. 10 Item 1. 11 Items 1, 5. 4 As stated above, Applicant admitted some of the SOR debts and denied others. He stated that he had paid some of the debts, but he did not provide any supporting documentation to verify the debts are resolved or being resolved. Applicant denied some debts because he was unfamiliar with them or disputed them for various reasons. He did not provide any substantiating evidence of actions he may have taken to resolve the disputes, contact the creditors, or provide documents to show the debts were resolved.12 In Applicant’s answer to the SOR, he stated that he never really cared to check his credit report. He stated, “Some of this information is a miscue, but some of my credit is also a lack of me keeping my agreement which totally falls on me an[d] I need to do a way better job of keeping my agreements.”13 He also stated that he was unaware that certain delinquent accounts were in collection or he believed others were older than seven years and he did not have to report them. Applicant stated that he is making an effort to improve his credit by obtaining a secured credit card, and he has made his monthly payments on time. He also stated, “now that I have records of my credit I will work hard to try to get everything caught up.”14 The SOR alleges that Applicant deliberately falsified his September 2014 SCA when he failed to disclose that he had judgments entered against him; that he had debts turned over to a collection agency; and that he had accounts or credit cards suspended, charged off or canceled for failing to pay as agreed. I have carefully considered all of those facts. I believe Applicant was aware that he was behind in paying bills and some of his debts were delinquent. However, I find there is insufficient evidence to conclude he was aware that some of his debts were turned over to collection agencies or were charged off, suspended, or canceled for failing to pay as agreed. There is also insufficient evidence to conclude that Applicant was aware at the time he completed his SCA that some debts resulted in judgments. I find there is insufficient evidence to find that Applicant deliberately falsified his SCA by failing to disclose the above information. Policies When evaluating an applicant’s national security eligibility for a security clearance, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions, which are used 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 12 Item 1. 13 Item 1. 14 Item 1. 5 factors listed in the adjudicative process. The administrative judge’s overarching 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 national security eligibility will be resolved in favor of the 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. 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. Directive ¶ E3.1.15 states an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining 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 an applicant may deliberately or inadvertently fail to 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 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). Analysis 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 6 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. AG ¶ 19 provides conditions that could raise security concerns. The following are potentially applicable: (a) inability to satisfy debts; (b) unwillingness to satisfy debts regardless of the ability to do so; (c) a history of not meeting financial obligations; and (d) deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, expense account fraud, mortgage fraud, filing deceptive loan statements and other intentional financial breaches of trust. Applicant has unpaid judgments and delinquent accounts dating back to at least 2010 that he has been unable or unwilling to pay and remain unresolved. There is sufficient evidence to conclude that Applicant misused his employer’s gas card for his personal vehicle and was fired because of his actions. The evidence supports the application of the above disqualifying conditions. The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. The following mitigating conditions under AG ¶ 20 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, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances; (c) the individual has received or is receiving financial 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; 7 (d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; and (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 did not provide supporting documentary evidence that he has paid or resolved any of the judgments or delinquent debts alleged in the SOR. His financial issues are ongoing. He did not provide evidence regarding his current finances or ability to pay his delinquent debts. There is insufficient evidence to conclude his financial problems are unlikely to recur. Applicant admitted in his SCA and to the government investigator that he was using his employer’s gas card for his private vehicle. This conduct raises questions about his reliability, trustworthiness, and good judgment. He failed to provide sufficient evidence to overcome these concerns. AG ¶ 20(a) does not apply. Applicant did not provide information that his failure to pay or resolve his delinquent debts and judgments were due to conditions that were largely beyond his control. He has been employed by his present employer since 2013. He did not provide evidence that he has acted responsibly in addressing his debts. There is no evidence that Applicant has received financial counseling and there are not clear indications that his financial problems are being resolved or under control. No evidence was presented to show Applicant has initiated and is adhering to good-faith efforts to repay overdue creditors or otherwise resolve his debts. AG ¶¶ 20(b), 20(c), and 20(d) do not apply. Applicant disputed several of the alleged debts because he was either unfamiliar with them, he thought they were someone else’s responsibility, or because he had paid them. He did not provide documentary evidence to substantiate the basis of his disputes or evidence of his actions to resolve them. AG ¶ 20(e) does not apply. Guideline J: Criminal Conduct The security concern 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 notes several conditions that could raise security concerns. I have considered all of the disqualifying conditions under AG & 31, and the following three are potentially applicable: (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 8 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. In January 2015, Applicant was arrested for DWI, carrying a concealed weapon, refused blood/breath test, reckless driving, and failure to wear a seatbelt. He was later convicted of DWI and carrying a concealed weapon. He was sentenced to 12 months in jail, which was suspended; ordered to pay a $500 fine; his driver’s license was suspended for 12 months; and he was required to complete 10 ASAP education classes. He was placed on probation for one year. In March 2015, he was charged with driving on a revoked/suspended license and was fined. The above disqualifying conditions apply. The guideline also includes conditions that could mitigate security concerns arising from criminal conduct. The following mitigating conditions under AG ¶ 32 are potentially applicable: (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. Shortly after Applicant’s January 2015 DWI and carrying a concealed weapon arrest, he was arrested for driving on a revoked or suspended license. Applicant’s subsequent arrest is a concern because of the nature of the offense and its timing shortly after his January arrest. A DWI conviction is serious, and coupled with carrying a concealed weapon conviction it raises questions about Applicant’s good judgment. He received a 12-month jail sentence and was on probation for a year, also reflecting the seriousness of the offenses. Insufficient time has passed to conclude that similar behavior is unlikely to recur. AG ¶ 32(a) has minimal application. Applicant did not provide sufficient evidence of successful rehabilitation. He did not provide evidence of a good employment record, compliance with the terms of his probation, constructive community involvement, or if he continues to associate with the person he claimed owned the handgun that was found in his car. AG ¶ 32(d) has minimal application. 9 Guideline E: Personal Conduct AG ¶ 15 expresses the security concern for personal conduct: 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 guideline notes several conditions that could raise security concerns. I have considered all of the disqualifying conditions under AG & 31, and one that may be potentially applicable: (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 national security eligibility or trustworthiness, or award fiduciary responsibilities. I have considered all of the evidence and conclude it is insufficient to conclude that Applicant deliberately failed to disclose he had judgments or that he was aware that accounts had been turned over to a collections agency, charged off, suspended, or canceled. The above disqualifying condition does not apply. I find Applicant successfully refuted the Guideline E, personal conduct allegations. 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 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 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. 10 I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines J, F and E in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment. Applicant is 28 years old. He has numerous judgments and delinquent debts that are unpaid or unresolved. He misused his employer’s gas credit card for his personal benefit. He was convicted in 2015 of DWI, carrying a concealed weapon, and driving on a suspended or revoked license. The record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline J, criminal conduct, and Guideline F, financial considerations. He refuted the personal conduct concerns alleged under Guideline E. 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 J: AGAINST APPLICANT Subparagraphs 1.a-1.b: Against Applicant Paragraph 2, Guideline F: AGAINST APPLICANT Subparagraph 2.a: For Applicant Subparagraphs 2.b-2.p: Against Applicant Paragraph 3, Guideline E: Refuted Subparagraphs 3.a-3.b: Refuted Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. _____________________________ Carol G. Ricciardello Administrative Judge