1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-03694 ) Applicant for Security Clearance ) Appearances For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant failed to mitigate the security concerns under Guideline F, financial considerations and Guideline E, personal conduct. Eligibility for access to classified information is denied. Statement of the Case On February 10, 2017, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under 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.1 1 I considered the previous AG, effective September 1, 2006, as well as the new AG, effective June 8, 2017. My decision would be the same if the case was considered under the previous AG. 2 Applicant answered the SOR on March 14, 2017, 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), and Applicant received it on November 15, 2017. 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 3 through 16. Applicant responded to the FORM, and submitted documents marked as Applicant Exhibits (AE) A and B.2 There were no objections to any of the evidence and Items 3 through 16 and AE A and B are admitted into evidence. The case was assigned to me on February 13, 2018. Findings of Fact Applicant admitted the SOR allegations in ¶¶ 1.a, 1.b, 1.e, 1.n, 2.a and 2.b. He denied the remaining SOR allegations with explanations. After a thorough and careful review of the pleadings and exhibits submitted, I make the following findings of fact. Applicant is 34 years old. On his October 2015 Electronic Questionnaire for Investigation Processing (e-QIP), he disclosed that he graduated from high school in 2002 and attended college from 2013 until October 2015. In November 2015, Applicant was interviewed by a government investigator. He disclosed to the investigator that he began attending University A in the summer of 2010 and earned a certificate of completion in a management course. He was asked by the investigator if he had any other educational activities within the last ten years or any other degrees or diplomas. He responded “no” to both questions. When applying for employment he listed on his resume that he attended University B in 2008 for four years and studied political science. He put a check under the box that says “degree.” He lists a different high school than the one he disclosed in his e-QIP. In the employment application, he also discloses that he has certificates for two years of teacher training and from a police academy for three months of study. He told the government investigator that he attended University C from 2005 to 2008, but he sued the school because it was an online scam, and he had been told by a judge that he should not mention this education on his resume or personal references since the matter was still in court proceedings. No other information was provided regarding the litigation.3 Applicant was married from 2002 to 2011. He married his second wife in 2011. He has six children, ages 14, 13, 11, 7, 6, and 4 years old.4 Applicant disclosed in his e-QIP that he has been employed by a federal contractor since October 2015. He indicated he was self-employed from 2008 to 2015 as an interpreter. He also disclosed that he worked full time at other jobs during the following 2 AE A is four pages and AE B is 10 pages. 3 Items 4 at 11-12, Item 5 at 5, 22, Item 14 at 2, 6. University B and C are likely the same as the names have one letter difference, but he lists that he attended these universities during the same time. 4 Item 4. 3 periods: April 2013 to July 2014; September 2012 to December 2012; September 2008 to October 2010; and April 2007 to September 2008. He lists one period of unemployment from February 2007 to April 2007.5 Applicant explained his financial problems began in 2008 when he and his wife began having marital problems, and she no longer contributed to paying their bills. He also attributed his financial problems to their 2011 divorce.6 Under Section 26 of Applicant’s e-QIP, he disclosed a delinquent child-support debt that began in 2008 and was paid in 2015. SOR ¶ 1.b alleges his child-support account is in collection ($3,338). In November 2015, Applicant disclosed to the government investigator that he has had difficulty paying the total amount of his court- ordered child support. He said it was brought current in September 2015, but he was unable to pay the full amount since then. In his SOR answer, he admitted he was again behind in his child-support payments. He said he was working with the “local child support agency” but did not provide evidence as to the steps he was taking to resolve the debt. He indicated he uses his income tax refund to pay his child support. The debt is listed as in collection on his November 2015, November 2016, and October 2017 credit reports.7 The debt is not resolved. In Applicant’s e-QIP, he disclosed the delinquent debts alleged in SOR ¶¶ 1.c ($824), 1.e ($347), 1.f ($243), 1.g ($230), 1.h ($153), 1.i ($119), 1.k ($541), 1.l ($2,192), and 1.m ($1,262). He noted that these debts were delinquent, charged off as bad debts, or in collection, and he was unable to pay them. He later denied some of these debts and others, indicating the accounts were fraudulent. The debts alleged in the SOR are supported by Applicant’s admissions and credit reports from November 2015, November 2016, and October 2017.8 During Applicant’s background interview, he acknowledged owing certain debts alleged and disputed other debts for various reasons. He then disputed the debts through a credit-monitoring service and provided documents with his answer to interrogatories that showed the debts in SOR ¶¶ 1.a and 1.h were deleted from at least one credit report. Other debts were either verified or new information was provided. As part of his SOR answer, he provided documents showing he disputed debts and some were removed by at least one credit bureau. They are the debts in SOR ¶¶ 1.a, 1.d, 1.g, 1.h, 1.j, 1.k, 1.l, and 1.o.9 These debts are resolved. 5 Item 4. 6 Items 3, 5. 7 Item 4, 7, 8, 9. The delinquent amount of the child support varies by credit report. 8 Item 3, 4, 5, 7, 8, 9. 9 Item 3, 5; AE B. 4 I was unable to determine if other accounts that were removed were debts alleged in the SOR because there were either multiple accounts or they had different amounts owed. Applicant disputed the debt in SOR ¶ 1.i ($119). A debt from the same creditor was deleted and although it is a different amount, it is likely the same account.10 This debt is resolved. It appears there are multiple accounts with the creditor in SOR ¶ 1.c. Two of these debts were removed from Applicant’s credit report. However, the evidence supports that the debt in SOR ¶ 1.c was verified by the collection company in the documents Applicant provided in his FORM response. SOR ¶ 1.c is not resolved.11 Applicant disclosed the debt in SOR ¶ 1.e on his e-QIP. He told the government investigator that the debt was owed for lawyer’s fees from his 2011 divorce and that he intended to pay the account in the future. In his SOR answer, he admitted the debt, but was now disputing it. It remains an open account.12 It is unresolved. In his background interview Applicant acknowledged the debt in SOR ¶ 1.f indicating it was a credit-card debt, and he was the individual owner. He told the investigator he disputed the account because he was never late in paying it. A 2015 credit reports show the debt was charged off in 2011. A 2016 credit report shows Applicant requested the account be closed and it was paid.13 This debt is resolved. Applicant disputed the account in SOR ¶ 1.m. Based on his FORM response documents, the account was not deleted and information was updated. It remains unresolved.14 The debt in SOR ¶ 1.n ($4,520) is for a car loan and the amount alleged was for the remaining balance that was owed. Applicant disclosed this delinquent debt on his e- QIP and indicated he was unable to pay the balance. He disclosed that he received a “profit and loss write-off” from the creditor. He did not provide a copy of the document. He told the investigator that he was unable to make the car payments when his wife no longer contributed to the family income. The account was held in his name only. He voluntarily returned the vehicle to the dealer. He told the investigator that he disputed the amount owed because the car was sold and there was no deficiency. He did not provide supporting documents.15 It is not resolved. 10 Items 3, 4, 5; AE B. 11 Items 3, 5, 8, AE B. 12 Items 3, 5. 13 Items 3, 5. 14 AE B. 15 Items 4, 5. 5 In 2009, Applicant was arrested and charged with injury to a child. On his November 2015 e-QIP, Applicant disclosed he was charged with this offense. Court records show he pleaded guilty to the offense. He paid a fine and the charge was later dismissed. Applicant left his minor children unattended in his car.16 In approximately June 2011, Applicant was charged with contempt of court. He was convicted and served approximately 15 days in jail. Applicant did not disclose this conviction on his November 2015 e-QIP. Applicant explained in his SOR answer that this conviction was not a separate crime, but was part of his failure to pay his child support and that he elected to go to jail. Court documents reflect his conviction and sentence.17 In February 2013, Applicant was charged with contempt of court. He was convicted and served approximately two days in jail. Applicant denied this allegation explaining it was not a new crime and again pertained to his court-ordered child support. As part of an employment screening interview document, Applicant wrote that he went to jail for two days because he “did not follow what the judge said.”18 He further stated he had difficulty making his child support payments because he did not have a job. Applicant did not disclose this conviction on his e-QIP.19 In July 2014, Applicant was charged with driving with a suspended license. He was convicted of the offense. He did not disclose this information on his e-QIP. Applicant denied he was convicted of this offense. He indicated he was stopped by a police office in State A and was told his driver’s license was suspended in State B. He stated he wrote a letter to State B to verify the information and did not receive a response. In his SOR answer, he provided a copy of a ticket that indicated the time, place, and date he should appear in court. He stated in his answer that he was not asked to appear in any courtroom. He denied his license was suspended. In Applicant’s Counterintelligence Focused Security Screening Questionnaire the investigator questioned Applicant about a November 2013 ticket. The investigator noted that Applicant disclosed he received a letter from State B Department of Transportation (DOT) that his driver’s license was suspended. He told the investigator that he provided payment to the DOT and his license was reinstated. He told the investigator that his State B driver’s license was reinstated in May 2015 and he never drove on a suspended license. Applicant was unable to provide the investigator proof of his reinstated license from State B. The investigator then asked Applicant about the July 2014 driving on a suspended license ticket. He denied the charge to the investigator. He was asked if he ever drove on 16 Items 4, 5, 11, 12. 17 Items 3, 5, 10, 12. 18 Items 10, 16. 19 Items 12, 16. 6 a suspended license. He answered “no.” Inconsistent statements raise credibility issues. In this instance, Applicant gave several different answers until he admitted to the two arrests above.20 Documents from Applicant’s former employer in November 2012 show that it learned in late October 2012 that Applicant had a suspended driver’s license. Applicant was counseled by a case manager that he could not drive their clients without a valid driver’s license. Applicant told the case manager that he would take care of it immediately. Documents reflect that after his meeting, he made a payment to the DOT to reinstate his license.21 During his background interview with a government investigator, Applicant denied he was confronted by his employer about driving on a suspended license despite information from the employer that it had verified on at least three occasions that his license was suspended. He denied this information, and said there must be a mistake with the website it checked. He denied he was terminated from this job. Documents reflect he was involuntarily terminated due to policy violations. He told the investigator he was terminated due to funding issues.22 In September 2015, Applicant was charged with a felony for falsify by offering forged or fraudulent documents. The charges were later dismissed. Applicant admitted he was charged with the offense, but denied he committed the offense. He explained his ex-wife was responsible for the allegations. The case was dismissed for lack of evidence.23 The SOR alleges in ¶ 2.g that during Applicant’s November 23, 2015 interview with a government investigator he intentionally failed to disclose that he had been charged, convicted, or sentenced to any crime within the past seven years except the 2009 child endangerment offense. Specifically he intentionally failed to disclose his two contempt of court convictions and driving on a suspended license offense. Applicant denied the allegation. He stated he believed the two contempt charges were part of his divorce, and he has never had his license suspended in State A. There is sufficient evidence that his license was suspended in State B due to child support issues and that he had it reinstated as part of his job requirements. Although he may have been confused about the contempt of court issues because they dealt with his failure to pay his child support, the fact that he went to jail for 15 days and 2 days on separate occasions reinforces that his actions were criminal in nature and subject to disclosure. It is not reasonable to believe that Applicant served time in jail and did not believe he was required to disclose this information. In 20 Item 6. 21 Items 14, 15. 22 Item 5. I have not considered for disqualification purposes any derogatory information that was not alleged in the SOR. I may consider it when making a credibility determination, in the application of mitigating conditions, and in my whole-person analysis. 23 Item 3. 7 addition, there is substantial evidence of a continuing pattern of inconsistent statements and dishonesty regarding Applicant’s suspended license. I conclude Applicant deliberately failed to disclose this information.24 In Applicant’s SOR answer, he stated he misunderstood the e-QIP and made mistakes. His reiterated that his divorce was difficult. He asked for a chance to prove himself. He stated that he made some bad choices when some of his accounts went to collection, but he had to prioritize his family’s needs and take care of his children.25 Applicant provided character letters with his SOR answer. In them he is described as a dedicated family man. He is considered trustworthy, passionate, caring, reliable, hardworking, punctual and honest.26 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 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 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 24 Items 14, 15. 25 Item 3, AE A. 26 Item 3. 8 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 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; and (c) a history of not meeting financial obligations. 9 Applicant accumulated delinquent accounts dating back to at least 2010. 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; (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 admitted owing many of the delinquent debts alleged in the SOR, and then later he disputed some. He has resolved many of the debts by disputing them, but his delinquent child-support obligations remain a recurring problem. He has some remaining delinquent debts. His financial issues are ongoing. He did not provide evidence regarding his current finances, his ability to pay his delinquent debts, or a plan for remaining current with his child-support obligations. There is insufficient evidence to conclude his financial problems are unlikely to recur. 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 attributed his financial problems to his wife’s failure to contribute to the family income beginning in 2008 and their subsequent divorce in 2011. These were conditions beyond his control. For the full application of AG ¶ 20(b), Applicant must have acted responsibly under the circumstances. Applicant has disputed many of the alleged debts, and they have been removed from his credit report. However, he is still resolving others. Of particular concern is his child-support obligation which is an ongoing problem. 10 It has been seven years since his divorce, and he has been employed during this period, yet he still has outstanding child-support obligations. He did not provide sufficient evidence that he has resolved this obligation despite his comments that this is his priority. I find AG ¶ 20(b) partially applies. 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. AG ¶ 20(c) does not apply. There is evidence that Applicant resolved many of his debts by disputing them on his credit report. No evidence was presented to show Applicant has initiated and is adhering to good-faith effort to repay overdue creditors or otherwise resolve the debts that remain. AG ¶ 20(d) does not apply. Applicant disputed many of the debts alleged in the SOR, even those he disclosed on his e-QIP and stated he was unable to pay. Many have been removed from his credit report and are resolved as indicated in my findings of fact. AG ¶ 20(e) applies to those as noted above. 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 & 16, and three 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; (b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative; and (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, 11 but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. I have considered all of the evidence and conclude Applicant deliberately failed to disclose his criminal contempt arrests and convictions and driving with a suspended license arrest on his e-QIP and later falsified material facts when he was interviewed by a government investigator by denying he had been charged, convicted, or sentenced for any crime in the last seven years. Applicant’s failure to pay his child-support obligations that relate to his criminal contempt convictions are a concern. The above disqualifying conditions apply. The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered the following mitigating conditions under AG ¶ 17: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; and (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment. The evidence does not support the application of AG ¶ 17(a). There is insufficient evidence to conclude that Applicant made a prompt, good-faith effort to correct his omissions. Applicant did not disclose the required information on his e-QIP and when he was specifically questioned by the government investigator about whether he was charged, convicted, or sentenced for any crime within the last years he failed to disclose his criminal contempt charges. I have considered his explanation that he was confused because his contempt charges related to his divorce. Applicant spent 15 days in jail and then spent another 2 days in jail. Regardless of the reason, it is not believable that he did not think he had to disclose this information. The evidence is sufficient to support Applicant was aware of his suspended driver’s license and his attempts to conceal this information. I did not find Applicant’s explanations credible. AG ¶ 17(c) does not apply because deliberately failing to disclose information on a SCA is not a minor offense. Failing to be honest during an interview with a government investigator is not minor. I find Applicant’s omissions are serious and cast doubt on his reliability, trustworthiness, and good judgment. 12 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. 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 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 34 years old. He is the father of six children and has been held in contempt of court twice and been sentenced to jail for failing to pay his child-support obligation, which remains in a collection status. He has other delinquent debts he is still resolving. Applicant deliberately failed to disclose his past conduct on his e-QIP and during his background interview as was required. 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 F, financial considerations and Guideline E, personal conduct 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 Subparagraph 1.a: For Applicant Subparagraphs 1.b-1.c: Against Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: Against Applicant Subparagraphs 1.f-1.l: For Applicant 13 Subparagraphs 1.m-1.n: Against Applicant Subparagraph 1.o: For Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a-2.g: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. _____________________________ Carol G. Ricciardello Administrative Judge