DATE: December 7, 2001

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SSN: -----------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

PAUL J. MASON

APPEARANCES

FOR GOVERNMENT

Arthur A. Elkins, Esq., Department Counsel

FOR APPLICANT

Pro Se

Applicant's excessive alcohol consumption (which also has independent significance under the criminal conduct guideline) is characterized by four alcohol-related offenses between 1989 and 2000. After consuming six to eight beers in January 2000, Applicant exercised poor judgment by driving and damaging his auto. On August 5, 2000, Applicant had been involved in a fight before being arrested for DUI. Applicant's excessive alcohol consumption is aggravated by his attempts to conceal the full picture of his alcohol-related history and financial problems. Applicant's personal accomplishments weigh in his favor but have little probative value in determining how he has been able to keep his drinking under control since the most recent DUI in August 2000. While Applicant's successful completion of sixteen hours in the alcohol program is positive evidence, Applicant has provided no specific information demonstrating how the program is going to keep him away from problematic situations in the future. Applicant's alcohol consumption, criminal conduct, personal conduct, and financial considerations have not been mitigated. Clearance is denied.

On July 2, 2001, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, amended November 10, 1998, issued a Statement of Reasons (SOR) to Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. Applicant filed his Answer to the SOR on July 12, 2001. Applicant elected to have his case decided on a written record. The Government provided a copy of the File of Relevant Material (FORM) on August 10, 2001. Applicant received the FORM on August 17, 2001. His response was due 30 days later or by September 17, 2001. Applicant's one page undated response was received on September 14, 2001. The case was transferred to the undersigned for decision on September 20, 2001.

The Following Findings of Fact are based on the FORM. The SOR alleges alcohol consumption, criminal conduct, personal conduct, and financial considerations. Applicant's admissions to all the factual allegations shall be incorporated into the Findings of Fact. Applicant is 42 years old and employed as a software test engineer by a defense contractor. He seeks a secret clearance.

Applicant recalled an underage drinking charge in October 1977; he could not remember any other details about the charge. Without additional evidence regarding the charge, e.g., whether Applicant had been drinking or whether he was under age at the time he was charged, my ultimate finding is for Applicant.

Subparagraph 1.b. describes a criminal offense that took place in May 1979 with Applicant's car being identified at the scene of the crime. The allegation contains no arrest papers or other legal documents indicating the final disposition of the case. Even without Applicant's statements, this allegation is found in his favor because there is no evidence Applicant was convicted of a crime. Further, there is no evidence the offense was alcohol-related.

On April 25, 1989, Applicant was charged with driving while under the influence (DUI). In his response, Applicant admitted he was aware of the charge but claims his is in good standing with the specific division of motor vehicles. I find against Applicant under subparagraph 1.c. because of Applicant's recognition of the charge, his recollection he was processed by the state division of motor vehicles as a result of the charge, and his implied admission his driving privileges have been restored.

On October 23, 1993, Applicant was arrested for DUI and failed to appear for his hearing. Applicant admitted this incident but claimed the charge was reduced to reckless driving. Based on Applicant's admission of the original offense, I find he had been drinking. However, I am unable to find whether there was sufficient alcohol in his bloodstream to satisfy the DUI statute. ⁽¹⁾

On January 22, 2000, Applicant was involved in a single car accident. Applicant was subsequently charged with DUI and having an open container in the car. A hearing was scheduled in the case for August 15, 2000. Although he did not provide any documentation, Applicant claims the case was discharged with Applicant completing an alcohol program and returning to a good standing status with the local division of motor vehicles. Even though the case was discharged, I find against Applicant under 1.e. because he had consumed six to eight beers prior to the accident, and acknowledged the accident would not have happened had he not been drinking.

On April 9, 1999, Applicant falsified a Questionnaire for National Agency Positions, Standard Form 86, when he answered "yes" to question 24 (3.a.), but then under reported his alcohol and drug related arrests by not disclosing subparagraph 1.c.

Although Applicant denied withholding information about the rental debts (3.b.) during an interview with Special Agent from the Defense Security Service (DSS) on April 12, 2000, I find he intentionally concealed the debts (4.b. and 4.c.). The explanations Applicant provides for not making restitution on the unpaid rent does not excuse Applicant from concealing the information in April 2000 interview.

Under subparagraphs 3.c. and 3.d., Applicant intentionally did not disclose the January 22, 2000, DUI charge, during the course of an interview on April 12, 2000. Applicant claims he misunderstood the subject matter asked (he believed the subject matter was convictions only), and he thought he was going to get the DUI charges from August 5, 2000 dismissed. Considering Item 7, Applicant understood the questions asked during the interview because he stated, "[Mr.] [Special Agent] and I have reviewed my sworn statements to DSS on 26 Apr 00 and 10 Aug 00, and the [local] police reports concerning my DUIS's on 22 Jan 00 and 5 Aug 00. I admit I have omitted pertinent facts and significant information during both of the above interviews and in the sworn statement taken 10 Aug 00."

I find Applicant's admissions (Item 7) reflect intentional omissions of information relating to his alcohol-related arrests.

Paragraph 4 (4.a.) begins with an acknowledged bankruptcy discharge in April 1990 because Applicant's wife would not pay certain debts during a divorce.

With regard to subparagraph 4.b., Applicant thought his landlord had excused him from being obligated to pay the debt, even though the lease agreement may not have covered the agreement he made with the landlord. Applicant articulated a reluctance to pay the debt with his

statement that even if he were to pay the debt, his credit bureau report would reflect a zero balance that had been transferred for collection.

Applicant believes he gave the landlord (referenced in subparagraph 4.c.) proper notice before leaving the apartment, and has no intention of paying the debt. In addition, Applicant complained about certain charges and expenses he did not know could be assessed if the terms of the lease were violated. Regardless whether the notice of vacation Applicant provided was sufficient, Applicant should have utilized legal methods. to protect his claims rather than simply refusing to honor the terms of the lease. I find against Applicant under 4.c.

Applicant is certain he paid the cable debt of $106.00 (4.d.) but he presented no documentation is support of his contention. Applicant has been unable to locate any information regarding the civil judgment identified in subparagraph 4.e. ⁽²⁾ I find against Applicant under 4.d. and 4.e.

In his response to the FORM, Applicant mentioned he completed the sixteen hour alcohol program provided by the state. Applicant did not explain how he is committed to correcting his alcohol situation. Applicant has held a security clearance in the past and believes one should be granted to him presently.

Applicant is a computer software engineer and has received three raises in the last year for a good work performance.

Enclosure 2 of the Directive sets forth policy factors which must be given binding consideration in making security clearance determinations. These factors must be considered in every case according to the pertinent criterion; however, the factors are in no way automatically determinative of the decision in any case nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the entire realm of human experience or that the factors apply equally in every case. In addition, the Judge, as the trier of fact, must make critical judgments as to the credibility of witnesses. Factors most pertinent to evaluation of the facts in this case are:

Disqualifying Conditions:

1. Alcohol-related incidents away from work;

5. Habitual or binge consumption of alcohol to the point of impaired judgment.

Mitigating Conditions:

None.

Disqualifying Conditions:

1. Allegations or admission of criminal conduct, regardless of whether the person was formally charged;

2. A single serious offense or multiple lesser offenses.

Mitigating Conditions:

6. There is clear evidence of successful rehabilitation.

Disqualifying Conditions:

2. The deliberate omission or falsification of relevant and material facts from any personnel security questionnaire to determine security clearance eligibility or trustworthiness;

3. Deliberately providing false or misleading information concerning relevant and material matters to an investigator in connection with a personnel security or trustworthiness determination.

Mitigating Conditions:

2. The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;

3. The individual has made prompt, good-faith efforts to correct the falsification before being confronted with the facts.

Disqualifying Conditions:

1. A history of not meeting financial obligations;

2. Deceptive or illegal financial practices.

3. Inability or unwillingness to satisfy debts.

Mitigating Conditions:

None.

Every security clearance case must also be evaluated under additional policy factors that make up the whole person concept. Those factors (found at pages 16 and 17 of Enclosure 2 of the Directive) include: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other behavioral changes; (7) the motivation for the conduct; and, (8) the potential fort pressure, coercion, exploitation, or duress, and (9) the likelihood of continuation or recurrence.

As set forth in the Directive, every personnel security determination must be a fair and impartial overall commonsense decision based upon all available information, both favorable and unfavorable, and must be arrived at by applying the standard that the granting (or continuance) of a security clearance under this Directive may only be done upon a finding that to do so is clearly consistent with the national interest. In reaching determinations under the Directive, careful consideration must be directed to the actual as well as the potential risk involved that an applicant may fail to properly safeguard classified information in the future. The Administrative Judge can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature.

The Government must establish all the factual allegations under excessive alcohol consumption (Guideline G), criminal conduct (Guideline J), personal conduct (Guideline E), and financial considerations (Guideline F),which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to the sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation which demonstrates that the past adverse conduct is unlikely to repeat itself and Applicant presently qualifies for a security clearance.

The Government has established a case of excessive alcohol consumption under Guideline G. As referenced in POLICIES above, Applicant's consumption over the years represents a pattern of adverse drinking behavior that falls within the scope of disqualifying condition (DC) 1. Though there is some evidence Applicant's drinking began in 1977, there are no supporting documents to conclude Applicant's pattern of drinking behavior began in 1977. Therefore, my ultimate finding is for Applicant under 1.a. My finding for Applicant under 1.b. is based on the same lack of documentation in support of the charge. However, Applicant's acknowledgment of the next four alcohol-related offenses between 1989 and August 5, 2000, constitutes sufficient, disqualifying evidence of an alcohol problem based on alcohol-related offenses away from work.

The Government has also established a case of excessive alcohol consumption through DC 5. While there is no precise level of consumption presented to document the alcohol-related offenses in 1989 and 1993, the surrounding circumstances of the January 2000 DUI arrest provides a sufficient picture to demonstrate habitual consumption of alcohol to the point of impaired judgment. Prior to the arrest in January 2000, Applicant had been drinking six to eight beers and apparently failed to see a pot-hole on his way into a shopping center. Though he realized alcohol contributed to the accident, the subsequent DUI arrest on August 5, 2000, less than eight months later, provides persuasive evidence Applicant did not comprehend the full nature and scope of his alcohol problem.

Excessive alcohol consumption can be mitigated when the alcohol-related incidents do not form a pattern of conduct. Four DUI offenses in eleven years, with the last alcohol-related offense occurring in August 2000, clearly represents adverse conduct that is not mitigated under MC 1.

MC 2 is applicable when the alcohol problem ended a number of years ago and there is no indication of a recent problem. MC 2 is not available for mitigation because the last alcohol-related incident occurred less than two years ago.

MC 3 is relevant for mitigation purposes when the record reflects positive changes in behavior supportive of sobriety. A person's statements and his conduct are the most probative evidence of change in a person's habit, especially after he encounters an alcohol-related offense. Even though Applicant seemingly understood he would have to alter his behavior after the January 2000 DUI, Applicant encountered his fourth DUI in August 2000. While Applicant has noted a number of personal accomplishments in support of his security clearance application, there have been insufficient changes supportive of sobriety as contemplated under MC 3.

Applicant's alcohol-related conduct from 1989 to August 2000 has independent significance under the criminal conduct guideline (DC 2) because the alcohol-related behavior establishes violations of the state's traffic laws prohibiting a person from driving while under the influence of alcohol. Committing the same kind of criminal conduct on a repeated basis casts additional doubts about Applicant's judgment, reliability and trustworthiness.

Applicant's intentional falsifications of his security clearance application and his interviews also constitutes criminal conduct under violation of Title 18 USC 1001. By intentionally omitting information about the alcohol-related offenses, Applicant concealed material information about his past which influenced the course of the government investigation into his qualifications for having security clearance access.

Criminal conduct can be mitigated when the criminal behavior is not recent, and is isolated. MC 1 and MC 2 are not applicable as the record demonstrates a pattern of conduct which did not end until August 2000. MC 6 refers to clear evidence of successful rehabilitation. While Applicant has claimed he completed all pertinent alcohol programs, and has learned his lesson about drinking and driving, Applicant has offered no documentary evidence indicating completion of the programs or other evidence which could be interpreted as successful rehabilitation.

Applicant's intentional omission of material information from his security clearance application in April 1999 falls within DC 2 of the personal conduct guideline. While Applicant denies he concealed the delinquent rent information from his April 2000 interview, Applicant presented no evidence in support of his denial.

Applicant's explanations of mistake in response to subparagraphs 3.c. and 3.d. are not credible because of Applicant's sworn statement dated September 7, 2000 (Item 7), admitting he did not properly disclose the missing information in the two earlier interviews.

The first three mitigating conditions under personal conduct have been carefully analyzed. Because the missing information regarding Applicant's alcohol-related history is substantiated and pertinent to Applicant's judgment, MC 1 is removed from consideration. There is no evidence under C 2 and MC 3 to mitigate Applicant's personal conduct because Applicant had to be confronted with his alcohol-related incidents before acknowledging they occurred. In sum, Applicant's pattern of falsifications has not been successfully mitigated.

The Government becomes legitimately concerned when the record evidence indicates the person is having difficulty repaying debts voluntarily incurred. Sometimes the debtor realizes he no longer has the means necessary to repay all his creditors. The bankruptcy laws allow the person the opportunity to discharge debts so he can start anew in keeping his debts current. Failure to pay new financial obligations in a responsible manner following a bankruptcy discharge usually indicates the person has not made the necessary changes to keep his financial house in order.

As of August 10, 2000, after being discharged in bankruptcy in April 1990, Applicant owes over $5,100.00 in debt. The earliest debt is 1989. Applicant denies he owes the rental debt and related costs in subparagraphs 4.c. and 4.d.; however, he has presented no supporting evidence substantiating his claims he provided lawful notice to both landlords upon his vacation of the rental property. He claims he paid the other listed debts but has submitted no verifying documentation. The absence of documentation or other evidence to show Applicant provided sufficient notice or that he paid the listed bills, I find against Applicant under the financial considerations guideline.

Financial problems can be mitigated by MC 1 when the underlying behavior leading to the trouble was not recent. Because Applicant's most current debt is April 2000, MC 1 is not available for mitigation. MC 2 must be removed from consideration because five debts are listed, and there is no evidence indicating action by Applicant to resolve any of the debts.

MC 3 addresses several unanticipated situations which prevent or inhibit a person from handling his debts in a swift and reasonable manner. The failure of Applicant's wife to pay her assigned bills represents a justifiable reason for filing bankruptcy. However, Applicant has pointed to no unanticipated event which has curtailed his ability to deal with the present debts.

MC 4 of the financial considerations guideline applies when the person has received counseling and there are clear indications he has the financial problems under control. Because MC 4 necessitates action by the person to remedy his financial problems or repay his creditors, MC 4 cannot be considered.

Having found against Applicant under the specific conditions of alcohol abuse, criminal conduct, personal conduct, and financial considerations, the facts of this case must still be examined under the general conditions of the whole person concept. Applicant's alcohol-related conduct is serious. Applicant's case is aggravated by the fact he intentionally concealed his alcohol-related offenses several times. Even though the SOR lists five debts, Applicant has taken no meaningful action to resolve those debts. Applicant's accomplishments have been noted but shed little light on his alcohol problem, and whether he has made constructive changes to prevent a recurrence of excessive alcohol use or alcohol-related incidents in the future. Considering the evidence as a whole, Applicant has not presented sufficient evidence to find in his favor under he whole person concept as to any of the alleged guidelines.

Paragraph 1 (excessive alcohol consumption): AGAINST THE APPLICANT.

a. For the Applicant.

b. For the Applicant.

c. Against the Applicant.

d. Against the Applicant.

e. Against the Applicant.

f. Against the Applicant.

Paragraph 2 (criminal conduct): AGAINST THE APPLICANT.

a. Against the Applicant under 1.c., 1.d., and 1.d.; for Applicant under 1.a. and 1.b.

b. Against the Applicant.

Paragraph 3 (personal conduct): AGAINST THE APPLICANT.

a. Against the Applicant.

b. Against the Applicant.

c. Against the Applicant.

d. Against the Applicant.

Paragraph 4 (financial considerations): AGAINST THE APPLICANT.

a. Against the Applicant.

b. Against the Applicant.

c. Against the Applicant.

d. Against the Applicant.

e. Against the Applicant.

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.

1. The record contains no evidence to explain why Applicant was allowed to plead to the lesser included offense of reckless operation. I cannot assume the plea to the reduced crime occurred because there was insufficient evidence to convict under the DUI charge.

2. Applicant's credit bureau report dated August 11, 1999, reflects the status of Applicant's debts as of August 1999. Listed with those debts is the $300.00 judgment.