DATE: June 18, 2004
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SSN: -----------------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
BARRY M. SAX
APPEARANCES
FOR GOVERNMENT
Nygina T. Mills, Esquire, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
This 42-year-old owner of a computer consultant firm has a history and pattern of alcohol and drug abuse beginning more than 20 years ago and ending only in the early 2000s. He also falsified material fact about his substance abuse and treatment in a 2002 security clearance application and in a sworn statement to a Defense Security Service (DSS) agent. The numerous recommendations submitted by his colleagues is helpful but does not mitigate his history of misconduct and denial. Mitigation has not been adequately established. Clearance is denied.
STATEMENT OF THE CASE
On July 28, 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, as amended, issued a Statement of Reasons (SOR) to the Applicant. The SOR detailed reasons
why DOHA could not make the preliminary affirmative finding required under the Directive that it
is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. The SOR recommended referral to an Administrative Judge to conduct proceedings and
determine whether a clearance should be granted, denied or revoked.
On August 26, 2003, Applicant responded to the allegations set forth in the SOR, and elected to have a decision made by a DOHA Administrative Judge on the written record, i.e., without a hearing. Department Counsel issued a File of Relevant Material (FORM) on September 11, 2003. The Form instructed Applicant that any response to the FORM had to be submitted within 30 days of its receipt by Applicant. Any response was due by October 30, 2003, and Applicant timely submitted additional document. The matter was assigned to me for resolution on January 15, 2004.
FINDINGS OF FACT
Applicant is a 57-year-old employee` of a defense contractor. (Government Exhibit (GX) 1). The September 25, 2003 SOR contains four allegations under Guideline F (Financial Considerations). In his response to the SOR, Applicant admits allegations 1.b., 1.c., and1.d., and denies allegation 1.a. The admitted allegations are accepted and incorporated herein as Findings of Fact.
After considering the totality of the evidence derived from the FORM and its attachments, including Applicant's responses to the SOR and FORM, I make the following additional FINDINGS OF FACT as to the status, past and present, of each SOR allegation:
Guideline F (Financial Considerations)
Applicant:
1.a. - was indebted to Bank A in the approximate amount of $1,160.00 for a delinquent account charged off in April 2000;
1.b. - was indebted to Town B in the approximate amount of $3,726.70 for a tax lien for delinquent property taxes due for 2001.
1.c. - was indebted to Town B in the approximate amount of $3,374.00 fora a tax lien for delinquent property taxes for 2002;
1.d. - had at least seven (7) different tax liens files against him by Town B for delinquent property taxes since 1996.
As of May 20, 2003, none of the three debts cited above in 1.a., 1.b., or 1.c. had been paid or otherwise resolved.
POLICIES
Each adjudicative decision must also include an assessment of nine generic factors relevant
in all cases: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding
the conduct, to include knowing participation; (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 pertinent 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 (Directive, E.2.2.1., on page 16 of Enclosure 2). I have considered all nine factors, individually and collectively, in reaching my overall conclusion.
Because each security case presents its own facts and circumstances, it should not be assumed
that the factors cited above exhaust the realm of human experience or that the factors apply equally
in every case. Moreover, although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable financial judgment and conduct. Because Applicant chose to have this matter decided without a hearing and without submitting any additional information in response to the FORM, all credibility determinations and findings of fact are necessarily based entirely on the contents of the FORM and applicant's response.
The eligibility criteria established by Executive Order 10865 and DoD Directive 5220.6 identify personal characteristics and conduct that are reasonably related to the ultimate question of
whether it is "clearly consistent with the national interest" for an individual to hold a security clearance. In reaching the fair and impartial overall common sense determination based on the "whole person" concept required by the Directive, the Administrative Judge is not permitted to speculate, but can only draw those inferences and conclusions that have a reasonable and logical basis in the evidence of record. In addition, as the trier of fact, the Administrative Judge must make
critical judgments as to the credibility of witnesses, here based solely on the written record.
In the defense industry, the security of classified information is entrusted to civilian workers
who must be counted on to safeguard classified information and material twenty-four hours a day.
The Government is therefore appropriately concerned where available information indicates that an
applicant for a security clearance, in his or her private life or connected to work, may be involved
in conduct that demonstrates poor judgment, untrustworthiness, or unreliability. These concerns include consideration of the potential, as well as the actual, risk that an applicant may deliberately
or inadvertently fail to properly safeguard classified information.
An applicant's admission of the information in specific allegations relieves the Government
of having to prove those allegations. If specific allegations and/or information are denied or otherwise controverted by the applicant, the Government has the initial burden of proving those controverted facts alleged in the Statement of Reasons. If the Government meets its burden (either
by the Applicant's admissions or by other evidence) and proves conduct that creates security concerns under the Directive, the burden of persuasion then shifts to the Applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence
of conduct that falls within specific criteria in the Directive, it is nevertheless consistent with the interests of national security to grant or continue a security clearance for the Applicant.
A person seeking access to classified information enters into a fiduciary relationship with the
Government based upon trust and confidence. As required by DoD Directive 5220.6, as amended,
at E2.2.2., "any doubt as to whether access to classified information is clearly consistent with the interests of national security will be resolved in favor of the nation's security."
CONCLUSIONS
As to allegation 1.a., above, Applicant does not appear to be denying the existence of the debts so much as denying knowledge of the debt. In his August 26, 2003 response to the SOR, he indicated his intent to contact Bank A to ask about the status of the debt (Item 2). In his November 2003 response to the FORM, Applicant again addresses this debt but does not specifically state he has contacted the bank or what the status and amount of the debt actually is. I have considered his statement/suggestion that the debt has been "satisfactorily closed." The problem with accepting this claim is that there is no evidence supporting his claim or even suggesting that the credit report is incorrect.
As to the nine tax liens by Town B (1.b. (one), 1.b. (1), and 1.c (seven), I have carefully considered Applicant's explanations in his response to the FORM. He is correct that only the tax lines for 2001 and 2002 (totaling about $7,100) are indicated as being still active or open. The seven liens cited in SOR 1.d. are cited simply as having existed but subsequently paid off or otherwise resolved. As I understand the SOR, it is the fact of nine successive liens between 1995 and 2002
that concerns the Government.
Applicant explains his state of mind as follows:
Now that I have seen a credit report and I can se the reporting of a lien, plus the fact of this investigation, which I never would have dreamed or guessed would occur, I realize I should have paid more and quicker attention to the wording Lien."
Applicant expresses his present understanding and intentions, "my current income and working with CCCS [consumer credit counseling service] will allow me to clear this condition within a very short spell (Response to the FORM).
Applicant's statement that the current tax liens total "just over $7,000" is correct, but it misses the point or a concern caused by a failure to comply with his tax obligations for nine successive years (Id.). In his sworn statement of November 29, 2001 (Item 5), Applicant admits his "continued laxity" in saving enough money each year to pay his taxes. His continued laxity lapped over from year to year, so when he began to make payments, the money was actually credited to amounts due for earlier years, which explain why those earlier debts are now paid off but the debts for recent years are delinquent.
I note in his most recent submission his statement that he has "already requested [Bank A]
to investigate this credit report entry"and that credit counseling service has told him the account is "at least misstated and/or probably incorrect." (Response ro FORM at page 1).
Since this matter is being decided without a hearing, my evaluation is necessarily limited to the contents of the various documents that are found in the case file, the latest of which is Applicant's response to the FORM. Applicant's loyalty is not a issue in this matter, only his judgment, reliability, and trustworthiness. While his dedication to his family is obvious and admirable, the guidelines in DoD Directive 5220.6 preclude the granting or retention of a security clearance to anyone who s conduct violates one of more of those guidelines. I have considered Applicant's view of his own conduct, but the fact remains that he has shown a nine year inability or unwillingness to pay his properttaes on a timely baisis.
Applicant is a man of 42, born in 1961. He first received a DoD Secret-level security clearance in 1989, at age 28 (Item 4 at 31). The Government's concerns about Applicant fall into three areas: (1) drug abuse), (2) alcohol abuse, and (3) personal misconduct, specifically falsifications on his November 2002 SF 86 and in a December 2002 sworn statement to a DSS agent about the nature and extent of his substance abuse.
I have carefully considered Applicant's submissions. In a letter, dated October 14, 2003,
from the hospital-related treatment program cited above, the Certified Drug Abuse Counselor who worked with Applicant in 2000, states his understanding that Applicant has remained abstinent from alcohol since 2000, has remained active in his aftercare, and has returned to speak at subsequent programs as a successful graduate (Item 2 at page 11). His wife, father, and brother speak of the stress he was under when he started the company and view him now as a man who has learned to live with stress and to take control of his life, including abstinence from drugs and alcohol (Id, at pages 12, 13, 14).
In one of Applicant's written submissions (Item 2 at page 19), a fellow attendee at Narcotics Anonymous meetings states that Applicant recently told him "that he was less than truthful on his [security clearance] application." Another fellow NA attendee states that Applicant told him "that he had not been forthcoming regarding the extent of his drug use prior to entering the rooms of NA," but has "recognized his errant mistake and has corrected the untruthful information" (Id., at page 21). His professional colleagues and friends speak highly of his dedication and integrity (Id., at pages 15 - 23). I have given consideration and significant weight to the impressive praise and recommendations from Applicant's many supporters.
However, looking at Applicant under the Directive's whole person concept, I find the following direct and objective evidence to remain of the greatest security concern.
* Applicant was an extensive user and abuser of marijuana from about 1980 (his late teens) to 1993 and cocaine in the early 1990s (his early 30s) and again from early 1999 to October 2000.
* Applicant abused three different prescription pain killer drugs at various times between1996 and October 2000.
* Applicant abused alcohol for a period of approximately 10 years or more ("mid to late adulthood"), often in conjunction with his use of prescription pain killer drugs (Item 5 at 2) and ending in 2000.
* Applicant was treated after August 2000 for both polysubstance abuse (alcohol, cocaine, and pain killer medications)(Item 2 at page 3) and anxiety/depression (Item 6 at page 1).
* Applicant deliberately falsified material information on his November 26, 2000 SF 86 and in his sworn statement to DSS in December 2002.
* Applicant's medical records show a discharge diagnosis (11/10/2000) of Axis I - Major Depression, Polysubstance Dependence, Axis III - Tendon Pull, and Axis IV - Moderate Stressors, work and marital stress. The Condition and Prognosis at Discharge currently "stable" with a "prognosis [that] is good contingent upon the patient's following through on his stated aftercare plan, i.e., 12-step attendance and out-patient individual therapy with Dr. [A]" (Item 7 at page 24). Later medical records) pertain to a "Lumbar Epidural Steroid Administration"(May 2001) on Applicant's spine; a second such procedure, after which Imetrex, Prozac, and a third drug were prescribed (June 2002) (Item 7 at page 61); a second such procedure on September 13, 2002, after which Imitrex and a second drug were prescribed (Id., at page 65) and a third such procedure on October 7, 2002 (Id., at page 67). The prescription painkillers he used included Percocet, Vicodin, and Oxycontin (Item 2 at pages 2, 3).
This case contains an unusual number of factors of security concern. This 42-year-old Applicant has come a long way in his personal and professional life, including owning his own company for about 13 years and has held a DoD Secret security clearance since March 1989 (GX 4 at page 31). At the same time, he has demonstrated a continuing pattern of bad judgment, unreliability, and untrustworthiness over a variety of problems areas.
Under Guideline H, the overall record shows that Applicant used illegal drugs during the period when he requested and received a DoD security clearance. In addition, Applicant abused prescribed drugs (all painkillers) during the same period. I have carefully considered Applicant's explanations for why he did not consider himself to be an alcoholic or drug abuser (Item 2 at pages 3, 4). He claims he was simply unable to believe he has such problems. Such denials are generally indicative of a state of denial and are not uncommon in DOHA adjudications. Also suspect are claims of enlightenment that suddenly make the individual a new person who can be relied upon to make a definitive break from old patterns of negative behavior. All such claims/evidence must be considered in the context of the total evidence and a conclusion as to Applicant's credibility.
Considering the evidence as a whole, I find the following specific adjudicative guidelines to be most pertinent to this case:
Under Guideline H (Drugs), the Conditions that could raise a security concern and may be disqualifying include: 1. Any drug abuse; and 2. Illegal drug possession. Conditions that could mitigate security concerns include:1. The drug involvement was not recent, since the last use was in late 2000; 3. A demonstrated intent not to abuse any drugs in the future; and 4. Satisfactory completion of a drug treatment program prescribed by a credentialed medical professional. I find however that the mitigating effect of the three cited conditions is lessened by the time span over which Applicant was a substance abuser.
Under Guideline G (Alcohol), Disqualifying Condition 4. Habitual or binge consumption of alcohol to the point of impaired judgment is applicable. Mitigating Condition 3. Positive changes in behavior supportive of sobriety, is applicable but, as with Guideline H, its effect is lessened by the time span over which Applicant was a substance abuser . . .
Under Guideline E (Personal Conduct), Disqualifying Conditions 2 (The deliberate omission, concealment or falsification of material facts from any personnel security questionnaire (SF 86)) is clearly applicable as is DC 3 (Deliberately providing false or misleading information concerning relevant and material matters to an investigator . . . in connection with a personal security or trustworthiness determination) and DC 5 (A pattern or history of dishonesty or rule violations). Based on all of the available evidence, I conclude that the falsifications are both highly serious and current. At the same time, Applicant has not overcome the negative impact of the evidence by any sufficient evidence of mitigation.
Overall, along with what I conclude were long term denials of his substance abuse problem, Applicant has continued a pattern of denial as to his responsibility for the falsifications alleged and established under SOR 3.a., 3.b., and 3.c. Considering his age, maturity, education, and business and security clearance experience, his explanations for (1) his omission of any mention of the 2000 alcohol-related treatment program from his answer to Question 30 on his November 2002 SF 86 (SOR 3.a.); his failure to include his cocaine use in his answer to Question 27 (SOR 3.b.); and his failure to mention his cocaine and marijuana use, and his abuse of prescribed medications other than Oxycontin, from his sworn statement to DSS in October 2002 (SOR 3.c.) are simply not credible and do not constitute a valid and acceptable excuse for his serious misconduct.
FORMAL FINDINGS
Formal Findings as required by Section 3, Paragraph 7 of Enclosure 1 of the Directive are hereby rendered as follows:
Guideline H (Drugs) Against the Applicant
Subparagraph l.a. Against the Applicant
Subparagraph 1.b. Against the Applicant
Subparagraph 1.c. Against the Applicant
Subparagraph 1.d. Against the Applicant
Subparagraph l.e. Against the Applicant
Subparagraph 1.f. Against the Applicant
Subparagraph 1.g. Against the Applicant
Guideline G (Alcohol) Against the Applicant
Subparagraph 2.a. Against the Applicant
Subparagraph 2.b. Against the Applicant
Guideline E (Personal Conduct) Against the Applicant
Subparagraph 3.a. Against the Applicant
Subparagraph 3.b. Against the Applicant
Subparagraph 3.c. Against the Applicant
DECISION
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.
BARRY M. SAX
ADMINISTRATIVE JUDGE