1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-03993 ) Applicant for Security Clearance ) Appearances For Government: Daniel F. Crowley, Esq., Department Counsel For Applicant: Pro se ___________ Decision ___________ HARVEY, Mark, Administrative Judge: Applicant provided sufficient evidence to mitigate security concerns arising under Guidelines F (financial considerations) and G (alcohol consumption), and to refute security concerns under Guideline E (personal conduct). Eligibility for access to classified information is granted. Statement of the Case On January 8, 2016, Applicant completed and signed a Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). (Government Exhibit (GE) 3) On January 30, 2017, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, effective on September 1, 2006 (Sept. 1, 2006 AGs). (GE 1) The SOR set forth security concerns arising under Guidelines F, G, and E. On February 8, 2017, Applicant provided a response to the SOR. (GE 2) He requested a hearing. (Transcript (Tr.) 12) On June 16, 2017, Department Counsel was ready to proceed. On December 5, 2017, the case was assigned to me. On January 10, 2 2018, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for February 6, 2018. (HE 1) Applicant’s hearing was held as scheduled. During the hearing, Department Counsel offered 15 exhibits; Applicant offered 9 exhibits; there were no objections; and all proffered exhibits were admitted into evidence. (Tr. 16-22; GE 1-15; Applicant Exhibit (AE) A-AE I). On February 15, 2018, DOHA received the hearing transcript. After the hearing, I received nine exhibits, which were admitted without objection. (AE J-AE S) On June 28, 2018, the record closed. (AE L; AE R) The Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position on or after June 8, 2017. The new AGs supersede the previous AGs. Accordingly, I have evaluated Applicant’s security clearance eligibility under the new AGs.1 Findings of Fact2 In Applicant’s SOR response, he admitted the allegations in SOR ¶¶ 1.e, 1.f, 2.a, and 2.b. He also provided mitigating information. (HE 3) Applicant is a 41-year-old information technology engineer, and he has worked for his current employer since March 2017. (Tr. 6-7; GE 3) He has not had any periods of unemployment in the previous five years. (Tr. 7) In 1994, Applicant graduated from high school, and he has one semester of college. (Tr. 6; GE 3) He has not served in the military. (Tr. 7) In 2004, Applicant married, and in 2013, he divorced. (Tr. 8) His children are ages 13, 14, and 21. (Tr. 8, 14) He pays $1,300 monthly for child support. (Tr. 8) Financial Considerations From 2009 to 2014, Applicant was overseas, and he was not aware of his delinquent debts. (Tr. 22) The SOR alleges six delinquent debts totaling $33,222, and the record establishes the status of Applicant’s accounts as follows: SOR ¶¶ 1.a and 1.b allege two judgments owed to the same financial creditor, which were filed in 2010 for $6,763 and in 2012 for $5,831. Applicant denied any knowledge of these two judgments, and he said he never had accounts with this creditor. (Tr. 24) He said he was deployed to Afghanistan when the debts were incurred. (Tr. 24) I asked Applicant to go back to the court and the creditor to verify the accuracy of the 1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/SEAD4 20170608.pdf. 2 Some details were excluded to protect Applicant’s right to privacy. Specific information is available in the cited exhibits. 3 judgments. (Tr. 39-42) The creditor provided an IRS Form 1099-C for 2017 indicating the amount of debt cancelled is $4,401. (AE L) On June 6, 2018, the creditor provided a satisfaction filed with the court for the $5,831 judgment. It is unclear whether the IRS Form 1099-C applied to the $5,831 judgment, the $6,763 judgment, or some other debt because the account number on the IRS Form 1099-C does not match the account numbers on the judgments. As of June 28, 2018, Applicant indicated the $6,763 debt was unresolved. (AE P-AE R) SOR ¶ 1.c alleges a medical judgment filed in 2012 for $1,993. Applicant paid the debt, and on April 12, 2018, the creditor filed a satisfaction with the court. (Tr. 26; AE C; AE D; AE M) SOR ¶ 1.d alleges a medical judgment filed in 2013 for $14,764. Court records reflect the judgment was for medical services. (GE 11; AE N) Applicant initially denied that he ever had an account with the medical creditor. (Tr. 27, 37) Applicant said he checked the court records and was unable to locate a copy of the judgment. (Tr. 31) I asked Applicant to go back to the court and the creditor to verify the accuracy of this judgment. (Tr. 39-42) After his hearing, he provided documentation showing a law firm obtained a default judgment on behalf of the medical creditor in January 2013. (AE N) Garnishment was ordered in November 2013. (AE J at 6) In 2014 and 2015, payments were made under the garnishment, and the garnishment was released in June 2015. (AE J at 6-10) On March 28, 2018, Applicant wrote that he accepted responsibility for the judgment. (AE N) The reason he did not address this debt for several years was because he believed that his insurance had covered the medical bill. (AE N) On May 1, 2018, Applicant proposed to the creditor that he make a substantial payment followed by payments designed to resolve the debt in 12 months. (AE N) On June 28, 2018, he said the creditor was not pursuing the debt and had closed the account because Applicant does not live in the state where the creditor does business. (AE N) He did not say that the creditor had rejected his payment of the debt. SOR ¶ 1.e alleges a past-due debt for $2,660 for delinquent child support. (Tr. 34) Applicant’s January 2018 credit report reflects his child support debt is paid. (Tr. 34-36; GE 2; SOR response) SOR ¶ 1.f alleges an unpaid fine for $1,000 and court costs of $211. Applicant paid the fine and court costs. (Tr. 33; AE E) Applicant’s January 2018 credit report includes a good credit score and numerous debts in paid as agreed or current status. (AE B) This credit report does not list any judgments from creditors. (AE B) Alcohol Consumption SOR ¶¶ 2.a and 2.b allege Applicant had convictions for driving while intoxicated (DWI) in September 2011 and April 2015. For the first DWI, he fell asleep at a light, and the police stopped him. (Tr. 43) His blood alcohol content (BAC) for the second DWI in October 2014, was between .15 and .20. (AE E at 2) He conceded that he had two 4 convictions for DWI. (Tr. 45) On May 18, 2016, he successfully completed alcohol counseling, and he promised not to drive after consuming alcohol. (Tr. 44-45; AE S) Personal Conduct SOR ¶ 3.a alleges Applicant failed to disclose his judgments in SOR ¶¶ 1.a through 1.e on his January 8, 2016 SCA. Applicant’s January 8, 2016 SCA asked “In the past seven (7) years, [have] you had a judgment entered against you?” (GE 3) Applicant answered no. In the comments section, he disclosed that he had a history of delinquent child support and “As far as the medical bill, I am looking into it further to make sure I am fully responsible for the 18K+ amount before I start paying it. Still very unclear how my medical [insurance] did not cover any of the associated cost.” (GE 3) Applicant said he was unaware of the judgments because he was deployed. (Tr. 45) He said he had “no recollection of these judgments that obviously aren’t mine,” and he learned about them through the security clearance process. (Tr. 46) He had no reason to borrow money because he had ample funds through his overseas employment. (Tr. 46) Applicant disclosed his two DWI convictions on his SCA. (GE 3) Character Evidence Applicant was part of his employer’s teams that received two awards. (AE H; AE I) The awards indicate his teams made important contributions to national defense. Policies The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and 5 endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, nothing in this decision should be construed to suggest that it is based, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sept. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). Analysis Financial Considerations AG ¶ 18 articulates the security concern for financial problems: 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. . . . An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. . . . The Appeal Board explained the scope and rationale for the financial considerations security concern in ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012) (citation omitted) as follows: 6 This concern is broader than the possibility that an applicant might knowingly compromise classified information in order to raise money in satisfaction of his or her debts. Rather, it requires a Judge to examine the totality of an applicant’s financial history and circumstances. The Judge must consider pertinent evidence regarding the applicant’s self-control, judgment, and other qualities essential to protecting the national secrets as well as the vulnerabilities inherent in the circumstances. The Directive presumes a nexus between proven conduct under any of the Guidelines and an applicant’s security eligibility. AG ¶ 19 includes three disqualifying conditions that could raise a security concern and may be disqualifying 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.” In ISCR Case No. 08-12184 at 7 (App. Bd. Jan. 7, 2010), the Appeal Board explained: It is well-settled that adverse information from a credit report can normally meet the substantial evidence standard and the government’s obligations under [Directive] ¶ E3.1.14 for pertinent allegations. At that point, the burden shifts to applicant to establish either that [he or] she is not responsible for the debt or that matters in mitigation apply. (internal citation omitted). The record establishes the disqualifying conditions in AG ¶¶ 19(a), 19(b), and 19(c) requiring additional inquiry about the possible applicability of mitigating conditions. Five financial considerations mitigating conditions under AG ¶ 20 are potentially applicable in this case: (a) the behavior happened so long ago,3 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; 3 A debt that became delinquent several years ago is still considered recent because “an applicant’s ongoing, unpaid debts evidence a continuing course of conduct and, therefore, can be viewed as recent for purposes of the Guideline F mitigating conditions.” ISCR Case No. 15-06532 at 3 (App. Bd. Feb. 16, 2017) (citing ISCR Case No. 15-01690 at 2 (App. Bd. Sept. 13, 2016)). 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. The DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows: Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013). The SOR alleges six delinquent debts totaling $33,222. Applicant provided proof of resolution of four debts. In addition, SOR ¶ 1.a for $6,763 is probably not resolved. Applicant received an IRS Form 1099-C for 2017 indicating the amount of debt cancelled for this creditor is $4,401; however, this document probably does not relate to the $6,763 debt because the account number does not match the account number on this judgment. Applicant admitted responsibility for the debt in SOR ¶ 1.d, a medical judgment for $14,764.4 He was negotiating a settlement of this debt. Applicant said the creditor closed the account because he lives in a different state. Of course, this does not mean the creditor will not accept payment or settle the debt. Applicant has an obligation to make more effort to resolve this debt. Applicant made sufficient progress resolving his delinquent debts. He has a good credit score. His January 2018 credit report reflects numerous paid debts and current accounts. There are clear indications that his financial problem is being resolved, and his finances are under control. Future financial problems are unlikely to occur. AG ¶ 20(d) is established, and financial considerations security concerns are mitigated. 4 The Appeal Board has indicated that promises to pay off delinquent debts in the future are not a substitute for a track record of paying debts in a timely manner and otherwise acting in a financially responsible manner. ISCR Case No. 07-13041 at 4 (App. Bd. Sept. 19, 2008) (citing ISCR Case No. 99- 0012 at 3 (App. Bd. Dec. 1, 1999)). A promise to pay debts is given greater weight when there is a track record of paying other debts. 8 Alcohol Consumption AG ¶ 21 describes the security concern about alcohol consumption, “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.” AG ¶ 22 provides for two conditions that could raise a security concern and may be disqualifying as follows: (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; and (c) habitual or binge consumption5 of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder. Applicant had convictions for DWI in September 2011 and April 2015. His BAC for the second DWI in October 2014, was between .15 and .20. AG ¶¶ 22(a) and 22(c) are established. AG ¶ 23 lists four conditions that could mitigate security concerns: (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; (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; 5 Although the term “binge” drinking is not defined in the Adjudicative Guidelines, the generally accepted definition of binge drinking for males is the consumption of five or more drinks in about two hours. The definition of binge drinking was approved by the National Institute on Alcohol Abuse and Alcoholism (NIAAA) National Advisory Council in February 2004. See U.S. Dept. of Health and Human Services, NIAAA Newsletter 3 (Winter 2004 No. 3), http://www.pubs.niaaa.nih.gov/publications/Newsletter/winter2004/ NewsletterNumber3.pdf. “Binge drinking is the most common pattern of excessive alcohol use in the United States.” See the Center for Disease Control website, (stating “The National Institute on Alcohol Abuse and Alcoholism defines binge drinking as a pattern of drinking that brings a person’s blood alcohol concentration (BAC) to 0.08 grams percent or above. This typically happens when men consume 5 or more drinks, and when women consume 4 or more drinks, in about 2 hours.”), https://www.cdc.gov/alcohol/fact-sheets/binge- drinking.htm. 9 (c) the individual is participating in counseling or a treatment program, has no previous history of treatment and relapse, and is making satisfactory progress in a treatment program; and (d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations. AG ¶¶ 23(a), 23(b), and 23(d) are established. On May 18, 2016, he successfully completed alcohol counseling, and he promised not to drive after consuming alcohol. He is motivated not to engage in irresponsible, immature, and illegal conduct. He consumes alcohol responsibly. Additional alcohol-related problems are unlikely to occur and do not cast doubt on Applicant’s current reliability, trustworthiness, or judgment. Guideline G security concerns are mitigated. Personal Conduct AG ¶ 15 explains why personal conduct is a security concern stating: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. AG ¶ 16 describes one condition that could raise a security concern and may be disqualifying in this case, “(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire . . . used to conduct investigations, . . . [or to] determine security clearance eligibility . . . [.]” Applicant’s January 8, 2016 SCA asked “In the past seven (7) years, [have] you had a judgment entered against you.” (GE 3) Applicant answered no. In the comments section, he disclosed that he had a history of delinquent child support and a large medical debt. He placed DOD on notice that he had financial problems. He also disclosed his two DWI convictions on his SCA, which is an indication of his willingness to disclose derogatory information on his SCA. Applicant was careless when he completed his SCA; however, I do not believe Applicant intentionally failed to disclose or intended to conceal his delinquent debts on his January 8, 2016 SCA. Applicant refuted personal conduct security concerns. 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 10 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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guidelines F, G, and E are incorporated 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 a 41-year-old information technology engineer, and he has worked for his current employer since March 2017. He has not had any periods of unemployment in the previous five years. Applicant graduated from high school, and he has one semester of college. His children are ages 13, 14, and 21. He pay $1,300 monthly for child support. He served overseas for five years, including in Afghanistan, on behalf of the United States. His team received two awards. He contributed to national security. There is no evidence of security violations or use of illegal drugs while holding a security clearance. There is some important evidence against approval or reinstatement of his access to classified information. Applicant had convictions for DWI in September 2011 and April 2015. His BAC for the second DWI in October 2014, was between .15 and .20. Applicant admitted responsibility for the six delinquent debts totaling $33,222 listed on his SOR. Two substantial debts remain unresolved. The evidence supporting his approval of access to classified information is more persuasive than the evidence against approval of access to classified information. Applicant completed an alcohol-counseling program, and he does not drive after consuming alcohol. He resolved four of six delinquent SOR debts. He understands that he needs to resolve the remaining two SOR debts.6 His actions show financial responsibility and judgment, and he has established his reliability, trustworthiness, and ability to protect classified information. See AG ¶ 18. 6 The Government has the option of following-up with more questions about Applicant’s finances, including directing Applicant to providing documentation proving that the two remaining judgments are resolved. The Government can re-validate Applicant’s financial status at any time through credit reports, investigation, and interrogatories. Approval of a clearance now does not bar the Government from subsequently revoking it, if warranted. “The Government has the right to reconsider the security significance of past conduct or circumstances in light of more recent conduct having negative security significance.” ISCR Case No. 10-06943 at 4 (App. Bd. Feb. 17, 2012). This footnote does not imply that this decision to grant Applicant’s security clearance is conditional. 11 I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude that financial considerations and alcohol consumption security concerns are mitigated. He refuted personal conduct security concerns. Formal Findings Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline F: FOR APPLICANT Subparagraphs 1.a through 1.f: For Applicant Paragraph 2, Guideline G: FOR APPLICANT Subparagraphs 2.a and 2.b: For Applicant Paragraph 3, Guideline E: FOR APPLICANT Subparagraph 3.a: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or reinstate Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted. _________________________ MARK HARVEY Administrative Judge