DATE: January 16, 2004

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

PAUL J. MASON

APPEARANCES

FOR GOVERNMENT

Eric H. Borgstrom, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

The Government has established a case under the alcohol consumption guideline, the financial considerations guideline, and the personal conduct guideline that has not been mitigated. Given (1) the lack of evidence demonstrating constructive changes in lifestyle contributing to sobriety, (2) the lack of evidence indicating positive changes in financial habits, and (3) the lack of evidence to mitigate Applicant's intentional omission of material information from his response to interrogatories in January 2003, Applicant's meager evidence is insufficient to overcome the adverse evidence under the guidelines and under the whole person concept. Clearance is denied.

On May 8, 2003, 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 April 4, 1999, issued a Statement of Reasons (SOR) to Applicant. The SOR 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 furnished his answer to the SOR on June 15, 2003. Applicant elected to have his case decided on a written record. The Government provided Applicant a copy of the File of Relevant Material (FORM) on September 17, 2003. Applicant received the FORM on October 6, 2003. His response to the FORM was due on November 5, 2003. No response was received.

Subparagraph 2.c. of the SOR is hereby amended in following manner: "On November 26, 1990, you were charged with DUI and suspended license by the [city] Sheriff's Office at near [city, state]. On July 8, 1991, the DUI charge was nolle prossed, and you were ordered to pay $600.00 in fines for the suspended license and court costs. (words in bold added to original allegation).This amendment is made pursuant to E3.1.17. of the Directive to make the SOR conform with the evidence. Even though I have authority under E3.1.17 to grant either side additional time to respond to the amended allegation, no additional time is needed. Court records for the November 1990 DUI reflect that Applicant was charged with at least one additional offense (though the records do not identify the charge with specificity), and Applicant (in his sworn statement) recalled he was also charged with a suspended license. Considering the evidence as a whole, I find the additional charge was a suspended license.

The SOR alleges alcohol involvement (Guideline G), financial considerations (Guideline F), and personal conduct (Guideline E). Applicant admitted all the factual allegations under alcohol involvement and financial considerations, but denied the falsification allegations under personal conduct. Having weighed and balanced the FORM, I render the following factual findings:

Applicant is 33 years old and has been employed as an assembler by a defense contractor since September 1999. He seeks a secret clearance.

Alcohol Involvement. On November 26, 1990, Applicant was charged with driving while under the influence of alcohol (DUI) and suspended license. ⁽¹⁾ Even though the DUI charge was dropped, Applicant recalled he consumed an unknown amount of alcohol and then hit another car on his way home. A police officer arrested Applicant after detecting an alcohol odor on his breath. The officer also charged Applicant with driving on a suspended license.

Applicant's second alcohol-related incident occurred on November 11, 1994 when he was charged with DUI. Applicant had consumed three or four beers at a restaurant, and decided to drive home. On his way, a police officer observed him change traffic lanes and stopped him. Applicant claims he passed the field sobriety test but refused to take the breath examination, a test designed to determine the amount of alcohol in his blood. Applicant was found guilty after pleading no contest; he was placed on four months probation and sentenced to 50 hours of community service. He was also fined and ordered to pay court costs. His driver's license was suspended a second time for six months and he was directed to complete the alcohol safety action program. He satisfied all conditions of his sentence.

In January 2000, Applicant visited a bar with coworkers after completing a company project. He consumed about five or six beers, then left the bar and went home to visit his parents. Even though his mother requested he stay overnight, Applicant left the house to find a place to eat. After going through a traffic stop sign without coming to a complete stop, he was arrested. Applicant's attorney delayed the presentation of the case in court so that a seven-year gap would separate Applicant's 1994 DUI arrest and his January 2000 DUI arrest. The objective of the delay was to preclude Applicant from being prosecuted as a habitual offender in addition to the DUI offense.

On October 23, 2001, Applicant was fined for the January 2000 DUI.

Applicant does not believe he is an alcoholic. One beer will give him a headache, however, four or more drinks eases the headache.

From 1987 to 1990, Applicant claimed he drank a six-pack of beer about once every two or three months. From 1990 to 1991, Applicant did not drink alcohol. From 1992 to 1993, Applicant drank three or four beers twice a month on the weekends. In 1993 to November 1994, Applicant drank two beers in the evening with his girlfriend, and a six-pack on the weekends when friends came over to socialize. From 1995 to January 2000, Applicant drank two or three beers on a monthly basis. From January 2000, Applicant limited his drinking to one drink about two or three times a month. In his answers to interrogatories he provided on January 24, 2003, he said he was drinking approximately four beers about once a month.

Financial Considerations. On September 26, 2001 Applicant filed a Chapter 7 bankruptcy with total liabilities of approximately $35,765.19 and total assets of 5,360.00. On January 2, 2002, Applicant received a discharge. On May 22, 2001, Applicant's wages were garnished to resolve a debt of $1086.00 to a finance company. While Applicant claimed he was going to pay off the balance due on the debt, he presented no evidence in to support his claim.

Applicant believed his financial problems began in June 1999 when his employment with a vacation/cruise company ended. His subsequent sporadic employment created immediate problems in paying all his creditors in a timely fashion, including the loan company (subparagraph 2.b.) who provided the loan for his truck. In June the loan company was granted a judgment and garnisheed his wages. He filed bankruptcy to protect his truck enabling him to keep his truck. The bankruptcy records show the entire truck loan was discharged in bankruptcy.

Applicant also mentioned financial problems stemming from writing checks with insufficient funds. He wrote one worthless check in 1999 and two in 2001 and was uncertain whether he made restitution for all the checks.

Personal Conduct. On September 10, 1999, Applicant signed the certification section of his security clearance application (SCA), certifying the information on the form was true and correct. In his response to question 24 (subparagraph 2.a.) requesting information about alcohol-related offenses, Applicant only listed the November 1994 charge and not the November 1990 DUI. He stated in his sworn statement of September 26, 2001 (and repeated in his answer to the SOR) that he did not disclose the 1990 offense because he mistakenly believed the question only sought disclosure of alcohol-related offenses within seven years of filling out the SCA in September 1999. While Applicant clearly under reported his alcohol-related driving record on hi SCA, I do not consider his omission of the November 1990 DUI to be intentional.

When Applicant received the interrogatories related to alcohol use in January 2003, his driving record consisted of November 1990 DUI charge that was dismissed, a DUI conviction in October 1995 and a DUI conviction in October 2001, less than 13 months before he answered the interrogatories in January 2003. Yet, in his interrogatory response to the question of whether he had ever been arrested or charged by any law enforcement officers, Applicant answered "yes," but wrote, "don't know date, Jax FL, case dismissed, no charge imposed." In view of the detailed description Applicant provided in his sworn statement in September 2001 regarding the alcohol-related offenses in 1990, 1994 and 2000, particularly Applicant's recollection why he was not sentenced under the January 2000 DUI until October 2001, and the close proximity of his October 2001 sentencing to January 2003 when he indicated in his interrogatory response he had only been charged with a single DUI, I find Applicant deliberately omitted the two other more recent convictions.

Enclosure 2 of the Directive sets forth policy disqualifying conditions (DC) and mitigating conditions (MC) that must be given binding consideration in making security clearance decisions. These conditions must be considered in every case according to the pertinent guideline; however, the conditions 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 conditions exhaust the entire realm of human experience or that the conditions apply equally in every case. In addition, the Judge, as the trier of fact, must make critical judgments as to the credibility of witnesses. Conditions most pertinent to evaluation of the facts in this case are:

Disqualifying Conditions (DC):

1. Alcohol-related incidents away from work, such as driving while under the influence.

Mitigating Conditions (MC):

1. The alcohol incidents indicate a pattern;

2. The problem occurred a number of years ago and there is no indication of a recent problem;

3. Positive changes in behavior supportive of sobriety.

Disqualifying Conditions (DC):

1. A history of not meeting financial obligations;

2. Deceptive or illegal financial practices.

Mitigating Conditions (MC):

1. The behavior was not recent;

2. It was an isolated incident;

3. The conditions that resulted in the behavior were largely beyond the person's control;

4. The person has received or is receiving counseling for the problem and there are clear indications the problem is being resolved or is under control;

6. The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.

Disqualifying Conditions (DC):

2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.

Mitigating Conditions (MC)

1. The information was not substantiated or not pertinent to a determination of judgment, trustworthiness, or reliability;

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

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

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 17of 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; (8) the potential for 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 a prima facie case under alcohol consumption (Guideline G), financial considerations (Guideline F) and personal conduct (Guideline E) that establishes doubt about a person's judgment, reliability, and trustworthiness. Then, the Applicant must remove that doubt with evidence in refutation, explanation, mitigation, or extenuation that demonstrates that the past adverse conduct is unlikely to repeat itself and Applicant presently qualifies for a security clearance.

Alcohol Consumption. Excessive alcohol consumption often leads to the exercise of poor judgment and/or security violations. When an individual drives an automobile after consuming alcohol, he demonstrates that he is willing to put himself as well others in danger. Such conduct is disqualifying under DC 1 of the alcohol consumption guideline. In November 1990, Applicant had consumed an unknown amount of alcohol and decided to drive his auto. After sideswiping another auto, Applicant was charged with DUI. Even though the DUI charge was dropped, Applicant was fined $600.00 for driving with a suspended license. In November 1994, Applicant exercised poor judgment a second time by consuming three or four beers then driving his auto. Applicant was fined and also had his license revoked for six months. After consuming five or six beers in January 2000, Applicant was arrested by a police officer for not stopping for a stop sign. The three alcohol-related incidents raise security concerns under DC 1 of the alcohol consumption guideline.

In order to mitigate the security concerns of his alcohol-related conduct, Applicant has the ultimate burden of persuasion of showing the conduct does not indicate a pattern (MC 1), the problem occurred a number of years ago and there is no indication of a current pattern, and there are positive changes in behavior supportive of sobriety. Applicant provided no information about his drinking in answer to the SOR, and did not provide a response to the FORM. Though his sworn statement describes a person who consumes only small amounts of alcohol, Applicant's three alcohol-related incidents since November 1990 render MC 1 inapplicable to these facts.

Even though Applicant's last DUI occurred approximately four years ago, there is insufficient evidence for me to find in Applicant's favor under MC 2. Applicant has also failed to demonstrate positive changes in behavior supportive of sobriety. (MC 3) Accordingly, Applicant has not overcome the case against him under the alcohol consumption guideline.

Financial Considerations. An inability to pay debts on time may indicate the debtor is overextended and has exposed himself to the risk of having to engage in illegal acts to generate funds. Applicant has a history of not meeting his financial obligations (DC 1) as demonstrated by becoming indebted in the amount of almost $36,000.00 by September 2001 when he filed bankruptcy. Applicant admitted his financial problems began in June 1999 when he lost regular employment.

The worthless check activity that occurred on three occasions since 1999 represents deceptive financial practices (DC 2) because a person writing checks should know how much they have in their checking account before writing checks. Though people sometimes make mistakes by writing checks with no money in their accounts because of negligence or mathematical miscalculation, writing three worthless checks in a two year period cannot be attributed to simple negligence or oversight.

Applicant also claimed he brought the truck debt up to date in September 2001. However, the bankruptcy records reflect he included the original amount of the loan in bankruptcy petition. The discrepancy between his claimed payments and the records undercut Applicant's overall credibility.

Though there are five mitigating conditions available under the financial considerations guideline, there is insufficient evidence to mitigate the adverse evidence under DC 1 and DC 2. MC 1 applies when the underlying reasons for the indebtedness were not recent. MC 1 must be eliminated from consideration as Applicant's debt problems were evident until he filed bankruptcy in September 2001, less than three years ago. Because the records show delinquencies to several creditors amounting to almost $37,000.00, MC 2 is eliminated from consideration. Applicant has claimed his financial problems resulted from not finding a steady job. While Applicant is entitled to limited mitigation under MC 3 for being unable to find permanent work, Applicant has not presented any evidence to show what efforts he made, if any, to satisfy any of the creditors before he decided to seek a discharge.

Also critical to an individual's case in mitigation from financial difficulties is whether the person has received counseling and has the problem under control. With no evidence of counseling or other evidence showing how Applicant has learned from his previous mistakes, i.e., writing worthless checks, Applicant cannot mitigate his case under MC 4.

MC 6 does not apply to the financial indebtedness of this case, as there is no evidence Applicant has made a good-faith effort to repay his creditors. Though Applicant exercised good judgment to seek the discharge, only two years have passed since he was discharged in bankruptcy. Applicant has offered no evidence to explain how he has changed his financial habits to prevent a recurrence of problems in the future.

Personal Conduct. Conduct involving questionable judgment, dishonesty could indicate a person may not comply with rules and regulations associated with safeguarding classified information. There is insufficient evidence to show Applicant deliberately omitted the November 1990 DUI charge on his September 1999 SCA. However, there is enough sufficient evidence to conclude Applicant deliberately concealed the 1994 and 2000 DUI offenses from his answer to interrogatories in January 2003. (DC 2)

Turning to the mitigating conditions of the personal conduct guideline, MC 1 is found to be inapplicable as the omitted information is independently verified by the traffic records. While the false information Applicant provided in January 2003 was isolated incident, the falsification cannot be mitigated under MC 2 or C 3 since Applicant made no good-faith efforts to correct the falsification before being confronted with the facts. Accordingly, Applicant has failed to rebut the disqualifying information under DC 2 of the personal conduct guideline. In reaching my adverse decisions under the specific guidelines, I have considered the general conditions of the whole person concept.

Formal Findings required by Section 3, Paragraph 7, of Enclosure 1 of the Directive are:

Paragraph 1 (alcohol consumption, Guideline G): AGAINST THE APPLICANT.

a. Against Applicant.

b. Against Applicant.

c. Against Applicant.

Paragraph 2 (financial considerations, Guideline F): AGAINST THE APPLICANT.

a. Against Applicant.

b. Against Applicant.

Paragraph 3 (personal conduct, Guideline E): AGAINST THE APPLICANT.

a. For Applicant.

b. Against 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 Applicant a security clearance.

1. In his sworn statement, Applicant recalled he was also charged with a suspended license. Because the court would have no authority to fine Applicant for a dismissed charge and the amount of the fine appears to be too large and/or unreasonable to constitute simple court costs, I find the $392.50 fine was the disposition for the suspended license charge.