DATE: September 8, 2004

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

MICHAEL J. BRESLIN

APPEARANCES

FOR GOVERNMENT

Lynette Andresen, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant is a 29-year-old employee of a defense contractor. He has a history of excessive alcohol consumption since 1993. He also has a history of being unable or unwilling to pay his debts and thereafter failing to take reasonable actions to satisfy his creditors. Applicant was not truthful with his employer's representative about efforts to repay a delinquent debt. He also falsified material information on his security clearance application concerning his history of treatment for alcohol abuse and his prior arrests. Applicant has not mitigated the security concerns arising from his excessive use of alcohol, his financial difficulties, his lack of candor, or his falsification of material matters on his security clearance application. Clearance is denied.

STATEMENT OF THE CASE

Applicant submitted a security clearance application on June 1, 2001. Under Executive Order 10865, Safeguarding Classified Information Within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (the "Directive"), the Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On September 3, 2003, DOHA issued a Statement of Reasons (SOR) detailing the basis for its decision. The SOR alleges security concerns raised under Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption), Guideline F (Financial Considerations), and Guideline E (Personal Conduct), of the Directive.

Applicant answered the SOR in writing on October 24, 2003. He elected to have the matter decided on the written record in lieu of a hearing.

Department Counsel submitted the Government's written case on March 24, 2004. Department Counsel provided a complete copy of the file of relevant material (FORM) to Applicant, along with notice of his opportunity to file objections and submit material to refute, extenuate, or mitigate the disqualifying conditions. Applicant received the FORM on April 6, 2004. On April 26, 2004, Applicant submitted additional materials in response to the SOR, without objection. The case was originally assigned to another administrative judge, but was reassigned to me on August 31, 2004.

FINDINGS OF FACT

Applicant admitted all the factual allegations in the SOR, with some qualifications. Item 3, Applicant's Answer to SOR, dated October 24, 2003, at 1-2. Those admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, I make the following additional findings of fact:

Applicant is 29 years old, and employed by a defense contractor. Item 6, Security Clearance Application, dated June 1, 2001, at 1, 2. He is married and has two children. Id. at 4, 5.

Applicant began smoking marijuana when he was about 15 years old. Item 8, Applicant's Statement, dated February 21, 2002, at 2. He smoked marijuana on approximately a monthly or quarterly basis at social gatherings. Id. He stopped smoking marijuana when he joined the United States Army in August 1993. Id.; Item 14, Certificate of Release or Discharge from Active Duty (DD Form 214).

In 1993, while serving in the U.S. Army, Applicant's regular consumption of alcoholic beverages increased until he was drinking a 12-pack of beer every other day and becoming intoxicated each weekend. Item 7, Applicant's Statement, dated February 13, 2002, at 3. Applicant sought help through his chain of command and was referred for counseling. Id. Applicant completed an 8-week program which helped control his drinking. Id.

In June 1995, Applicant was riding in a vehicle with two friends who "mooned" (exposed their buttocks to) a passing vehicle. Id. The local police arrested all three and charged them with indecent exposure in municipal court. The charges against Applicant were later dismissed.

In October 1995, civilian police arrested Applicant for being a minor in possession of alcohol. Id. at 4. The civilian authorities dropped the charges and turned Applicant over to the U.S. Army for corrective action. Id. In lieu of formal punishment, Applicant completed extra duties as assigned by the First Sergeant. Id.

In late 1995, Applicant was reassigned overseas with the U.S. Army. He gradually resumed his earlier pattern of heavy drinking. Item 7, supra, at 4. When he returned from overseas in December 1996, he voluntarily sought alcohol counseling. Item 8, supra, at 1. He attended weekly counseling sessions for eight weeks beginning in December 1996. Id.

In 1996, Applicant took out a signature loan for about $1,000.00 from the local credit union. Id. at 6. He soon fell behind in his monthly payments. As of February 2002, Applicant had made no payments since about 1997. Id. In October 2003, Applicant admitted he was financially able to pay this debt. Item 3, supra, at 1. After receiving the SOR, Applicant negotiated a plan to repay the $962.00 debt through biweekly payments of $25.00. Additional Materials, Applicant's letter, dated April 26, 2004, at 1.

In April 1997, Applicant went on temporary duty with the U.S. Army. Item 8, supra, at 1. While drinking beer and socializing in his hotel room, he accidentally stepped in shoe polish and smeared it on the carpeting, resulting in a complaint to his commander. Id. The commander referred Applicant for three days of evaluation and counseling on alcohol abuse in May 1997. Id. The counseling helped for awhile, but Applicant began abusing alcohol again. Id.

In March 1998, while at a party on a weekend, Applicant used cocaine. Item 7, supra, at 3. The following Monday he submitted to a random urinalysis test, which was positive for a metabolite of cocaine. Id. Applicant received nonjudicial punishment for the offense under Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815. His punishment was forfeiture of one month's pay (suspended for 180 days), reduction in rank, and extra duties for 45 days. Item 15, Commander's Report of Disciplinary Action, dated March 30, 1998. The commander required Applicant to participate in substance abuse counseling between April and May 1998. Item 7, supra, at 3. He also went to local Alcoholics Anonymous classes weekly during this period. Because of his wrongful use of cocaine, Applicant was administratively discharged from the U.S. Army for cause with a General (Under Honorable Conditions) discharge in May 1998. Id.; Item 6, supra, at 6; Item 14, supra.

Applicant got married in March 1998. Item 6, supra, at 4. After his discharge from the U.S. Army, Applicant worked as a vehicle operator, a metals finisher, and a laborer. His consumption of alcohol decreased after his marriage to about one 12-pack of beer per month. Item 7, supra, at 5. During this period he became intoxicated at home about once monthly or quarterly. Id.

Between 1999 and the present, Applicant encountered financial difficulties. He became indebted to a medical clinic in 1999 for about $700.00 for bills relating to the birth of his daughter. Id. at 5. He was unable to pay the debt, and it remained unpaid through February 2002. Id. After receiving the SOR, Applicant made inquiries and paid off the outstanding debt in April 2004. Additional Materials, supra, at 1.

In 1999, the county obtained a judgment against Applicant in local court for unpaid traffic violations totaling $200.00. Item 6, supra at 9. The judgment remained unpaid through February 2002. Item 7, supra, at 6. Applicant subsequently paid the judgment. Item 3, supra, at 1.

Also in 1999, Applicant fell behind in his rent payments. Item 7, supra, at 6. His landlord obtained a judgment for unpaid rent for about $570.00, and garnished his wages for the debt until it was paid in full. Id.

Applicant became indebted to a medical center for bills arising from the birth of his daughter in February 2001. Item 7, supra, at 6. There was a dispute about insurance coverage of a bill for about $1,000.00, which remained unpaid through February 2002. After receiving the SOR, Applicant inquired about the status of the debt, and learned that it has been billed to his insurance company. Additional Materials, supra, at 1.

Applicant began working for a defense contractor in April 2001. Item 6, supra, at 2. Applicant received a corporate travel charge card through a national bank, but failed to make payments when due. Item 10, Report to Defense Industrial Security Clearance Office (DISCO), dated September 20, 2002. Despite repeated notices, Applicant was more than 60 days delinquent on this debt seven times, until the bank cancelled the account. Id. Applicant falsely indicated to the defense contractor that he had made arrangements to pay the debt. Item 11, Report to DISCO, dated December 5, 2002. The defense contractor began deducting about $65.00 per week from Applicant's salary to pay the outstanding $2,515.00 debt. Id. In July 2003, the defense contractor found it necessary to restore Applicant's corporate travel charge account so that Applicant could perform his duties. Additional Materials, Letter to DIS, dated April 20, 2004. Applicant had no delinquency problem after that time. Id.

When he began working for the defense contractor, Applicant applied for a security clearance. On June 1, 2001, he submitted an SF 86, Security Clearance Application. Item 6, supra, at 1. Question 24 on that form was:

Your Police Record - Alcohol or Drug Offenses

Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs? For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607.

Applicant answered "No" to that question. He did not report his arrest for being a minor in possession of alcohol in 1995.

Question 26 on the SF 86 was:

Your Police Record - Other Offenses

In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25? (Leave out traffic fines of less than $150.00 unless the violation was alcohol or drug related.) For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607.

Applicant answered "No" to this question. Id. at 8. He did not report his arrest for indecent exposure in June 1995.

Question 30 on the SF 86 was:

Your Use of Alcohol

In the last 7 years has your use of alcoholic beverages (such as liquor, beer, wine) resulted in any alcohol-related treatment or counseling (such as for alcohol abuse or alcoholism)? Do not repeat information reported in EPSQ Module 19 (Section 21 from the SF86).

Applicant answered "No" to this question. Id. at 9. He did not report his counseling for alcohol abuse in May 1997 or between April and May 1998.

While working for the defense contractor, Applicant has performed his duties quite well. He received a Special Recognition Award and a Spot Award, and has garnered praise from his co-workers and supervisors.

POLICIES

In Executive Order 12968, Access to Classified Information, § 3.1(b) (August 4, 1995), the President provided that eligibility for access to classified information shall be granted only to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." A person granted access to classified information enters into a special relationship with the government. The government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. The decision to deny an individual a security clearance is not a determination as to the loyalty of the applicant. Exec. Ord. 10865, § 7. It is merely an indication that the applicant has not met the strict guidelines the President has established for issuing a clearance.

To be eligible for a security clearance, an applicant must meet the security guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions and mitigating conditions under each guideline. The adjudicative guidelines at issue in this case are:

Guideline J, Criminal Conduct: A history or pattern of criminal activity creates doubt about an applicant's judgment, reliability, and trustworthiness. Directive, ¶ E2.A10.1.1.

Guideline G, Alcohol Consumption: Excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness. Directive, ¶ E2.A7.1.1.

Guideline F, Financial Considerations: An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Directive ¶ E2.A6.1.1.

Guideline E, Personal Conduct: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the applicant may not properly safeguard classified information. Directive ¶ E2.A5.1.1.

Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns pertaining to these adjudicative guidelines, are set forth and discussed in the conclusions below.

"The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance." Directive, ¶ E2.2.1. An administrative judge must apply the "whole person concept," and consider and carefully weigh the available, reliable information about the person. Id. An administrative judge should consider the following factors: (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 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. Id.

Initially, the Government must present evidence to establish controverted facts in the SOR that disqualify or may disqualify the applicant from being eligible for access to classified information. Directive, ¶ E3.1.14. Thereafter, the applicant is responsible for presenting evidence 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). "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive, ¶ E2.2.2.

CONCLUSIONS

I considered carefully all the facts in evidence and the legal standards discussed above. I reach the following conclusions regarding the allegations in the SOR.

Guideline J, Criminal Conduct.

The Government's documentary exhibits and Applicant's admissions constitute substantial evidence of a disqualifying condition under Guideline J of the Directive. Under ¶ E2.A10.1.2.2 of the Directive, it may be a disqualifying condition if an applicant commits a "single serious crime or multiple lesser offenses." Applicant's wrongful use of cocaine is a single serious offense which raises doubts about his judgment, reliability, and trustworthiness. Directive, ¶ E2.A10.1.1.

The evidence also demonstrates some mitigating circumstances. It is mitigating where it is determined that the criminal behavior was not recent. Directive, ¶ E2.A10.1.3.1. Applicant's wrongful use of cocaine occurred in March 1998, over 6 years ago. It may also be mitigating where the crime was an isolated incident. Directive, ¶ E2.A10.1.3.2. The available evidence indicates it was the only time Applicant used cocaine. However, it was not the only instance of Applicant's wrongful use of illegal drugs; he wrongfully used marijuana on many occasions before entering the U.S. Army. Finally, it may also be mitigating if the applicant was pressured into committing the offense and the pressures are no longer present in that person's life, or the factors leading to the violation are not likely to recur. Directive, ¶ E2.A10.1.3.3 and ¶ E2.A10.1.3.4. Applicant's use of cocaine was due, in part, to peer pressure and, in part, to his own curiosity. The evidence indicates those factors are no longer present in Applicant's life.

I considered all the circumstances in light of the "whole person" concept. I conclude Applicant has mitigated the security concerns arising from his wrongful use of cocaine in March 1998.

The SOR, ¶ 1.b, alleges Applicant was charged with indecent exposure, and the charge was later dismissed. The government's evidence and Applicant's admission indicate this is true. However, it does not constitute evidence of actual criminal conduct. Applicant was present when two others committed an unlawful act. That does not constitute substantial evidence that Applicant committed the alleged act, either as a principal or as an aider and abettor.

Guideline G, Alcohol Consumption.

Under ¶ E2.A7.1.1 of the Directive, excessive alcohol consumption may raise security concerns. The Government's documentary exhibits and Applicant's admission constitute substantial evidence of two potentially disqualifying conditions under the Directive: "Habitual or binge consumption of alcohol to the point of impaired judgment," and "Alcohol-related incidents away from work, such as . . . criminal incidents related to alcohol use." Directive, ¶ E2.A7.1.2.5 and ¶ E2.A7.1.2.1. Applicant admitted to habitual consumption of alcohol to the point of intoxication on a regular basis for many years. Additionally, his arrest for possession of alcohol while a minor was a criminal incident related to alcohol abuse, regardless of the disposition of the charges.

It may be mitigating where the "alcohol-related incidents do not indicate a pattern." Directive, ¶ E2.A7.1.3.1. In this case, Applicant's arrest for possessing alcohol underage was not the only alcohol-related incident in the record. Applicant admits that he was intoxicated when he used cocaine in 1998, and alcohol was involved in the incident in 1997 resulting in damage to the hotel carpet. I cannot conclude that this mitigating condition is present.

It may also be mitigating where the "problem occurred a number of years ago and there is no indication of a recent problem." Directive, ¶ E2.A7.1.3.2. The evidence indicates Applicant's problem with alcohol abuse began in 1993 and continued for many years. Indeed, Applicant admitted that he still drinks to the point of intoxication at home about once each month or each quarter. I cannot conclude there is no indication of a recent problem, therefore this mitigating condition does not apply.

It may also be mitigating where the applicant demonstrates "[p]ositive changes in behavior supportive of sobriety." Directive, ¶ E2.A7.1.3.3. Applicant indicates that he recognizes the risks inherent in excessive consumption of alcohol and, in consideration of his family responsibilities, has reduced his consumption. However, considering the long-term problems he has had with alcohol, and his repeated, unsuccessful attempts at rehabilitation in the past, I am not persuaded that Applicant will not be a security risk in the future.

The SOR, ¶¶ 2.d and 2.e, allege Applicant attended counseling for alcohol abuse in May 1997 and April to May 1998. These facts are demonstrated by the record and are relevant to the assessment of Applicant as a security risk for excessive alcohol consumption. However, they are not disqualifying conditions.

Guideline F, Financial Considerations.

The Government's evidence and the Applicant's admissions constitute substantial evidence of two disqualifying conditions under Guideline F, specifically, "[a] history of not meeting financial obligations," and "[i]nability or unwillingness to satisfy debts." Directive, ¶ E2.A6.1.2.1 and ¶ E2.A6.1.2.3. Beginning in 1997 and continuing until the present, Applicant had numerous debts that he did not or would not pay.

It may be mitigating where the behavior was not recent, or where it was an isolated incident. Directive, ¶ E2.A6.1.3.1 and ¶ E2.A6.1.3.2. In this case, however, Applicant's numerous bad debts had been outstanding for many years and still existed at the time the SOR was issued.

Another possibly mitigating factor is where the conditions causing the financial problems were largely beyond the individual's control. Directive, ¶ E2.A6.1.3.3. I note some of the bills were medical expenses that Applicant simply could not pay at that time. Moreover, one debt was disputed and eventually billed to the insurance company (SOR, ¶ 3.c). This mitigates Applicant's problems somewhat. However, I also note that when Applicant later found himself in a better financial position, he did not address several debts until confronted with the SOR.

It may be mitigating where the applicant initiated a good-faith effort to pay the debts. Directive, ¶ E2.A6.1.3.6. I note Applicant has either paid or negotiated a plan to pay several of these debts. The fact that Applicant has addressed these debts is a positive sign. However, it also tends to highlight the fact that he only did so after receipt of the SOR, after ignoring these debts for many years. Considering all the circumstances, I find Applicant has not mitigated the security concerns arising from his history of financial difficulties.

Guideline E, Personal Conduct.

The Government's documentary exhibits in the case file and Applicant's factual admissions are substantial evidence of conduct raising security concerns under Guideline E of the Directive. Specifically, under ¶ E2.A5.1.2.1 of the Directive, it may be disqualifying where there is reliable, unfavorable information demonstrating questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations. Additionally, "the deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire" may be disqualifying. Directive, ¶ E2.A5.1.2.2.

The SOR, ¶ 4.a, alleged Applicant lied to his employer about setting up a plan to satisfy the delinquent corporate travel card debt. A representative of the defense contractor reported that Applicant was untruthful at times by stating he had made arrangements to pay the debt, but that the creditor bank denied any arrangements were made. Item 11, supra. Applicant admitted the delinquent debt, but denied any deliberate misrepresentation. Item 3, supra, at 2. He asserted it was a misunderstanding of the payment procedures. Id. Considering all the circumstances, including the length of time the debt remained unpaid, the company's efforts to assure payment of the debt, and the detail of the account representative's statement, I do not find Applicant's denial persuasive. I conclude the substantial evidence shows Applicant was not truthful with his employer concerning his efforts to pay this outstanding debt.

The SOR, ¶ 4.b, alleged that Applicant falsified material facts in response to Question 30 of his SF 86, Security Clearance Application, when he denied that his use of alcohol had resulted in any alcohol-related treatment during the previous seven years. Applicant denied deliberately failing to disclose that he had been twice treated for alcohol abuse during that time. Item 3, supra at 3. He stated that he understood the question to refer only to treatment following an alcohol-related conviction. I reviewed the language of the question involved and the language of similar questions on the SF 86. I also considered Applicant's answers to other questions on the form. I conclude Applicant deliberately omitted relevant and material facts in response to Question 30 of the security clearance application.

The SOR, ¶ 4.c, alleged Applicant falsified material facts in response to Question 24 of his SF 86, Security Clearance Application, when he denied ever being charged with or convicted of any offenses related to drugs or alcohol. Applicant indicated that he did not report being arrested for possessing alcohol as a minor because he was not charged with an offense. Item 7, supra, at 4. He later stated that he was counseled that it was not a conviction and would not adversely affect him or his clearance in the future. Item 3, supra at 2. I find that the language of the question is clear on its face and that it asks for information relating to both charges and convictions. Applicant admitted that he was ticketed for the offense, and had to post bail to obtain his release, Item 7, supra, at 4. Applicant's claim that he misunderstood the question is not reasonable or credible. I conclude he deliberately omitted relevant and material facts in response to Question 24 of the security clearance application.

The SOR, ¶ 4.d, alleged Applicant falsified material facts in response to Question 26 of his SF 86, Security Clearance Application, when he denied ever being arrested for, charged with, or convicted of any offenses within the previous seven years. Applicant stated that he did not report his arrest for indecent exposure because the charges were dismissed. Item 7, supra, at 4; Item 3, supra, at 2. Applicant's denial is unpersuasive, however. The question specifically asked about arrests and charges, as well as convictions. I conclude Applicant deliberately omitted relevant and material facts in response to Question 26 of the security clearance application.

I carefully considered all the circumstances in light of the "whole person" concept. I conclude Applicant is not eligible for access to classified information.

FORMAL FINDINGS

My conclusions as to each allegation in the SOR are:

Paragraph 1, Guideline J: FOR APPLICANT

Subparagraph 1.a: For Applicant

Subparagraph 1.b: For Applicant

Paragraph 2, Guideline G: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Subparagraph 2.b: Against Applicant

Subparagraph 2.c: Against Applicant

Subparagraph 2.d: For Applicant

Subparagraph 2.e: For Applicant

Subparagraph 2.f: Against Applicant

Paragraph 3, Guideline F: AGAINST APPLICANT

Subparagraph 3.a: Against Applicant

Subparagraph 3.b: Against Applicant

Subparagraph 3.c: For Applicant

Subparagraph 3.d: Against Applicant

Subparagraph 3.e: Against Applicant

Subparagraph 3.f: Against Applicant

Paragraph 4, Guideline E: AGAINST APPLICANT

Subparagraph 4.a: Against Applicant

Subparagraph 4.b: Against Applicant

Subparagraph 4.c: Against Applicant

Subparagraph 4.d: Against Applicant

DECISION

In light of all of 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. Clearance is denied.

Michael J. Breslin

Administrative Judge