DATE: April 28, 2006

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

CHRISTOPHER GRAHAM

APPEARANCES

FOR GOVERNMENT

Ray T. Blank, Jr., Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant is a married employee of a federal contractor. From 1996 through 2000, he abused cocaine, causing him to be financially irresponsible, to engage in criminal activity, and to be untrustworthy and unreliable. Since 2000, he has successfully completed a drug rehabilitation program, has been active in Narcotics Anonymous where he is accountable to three individuals on a thrice weekly basis. He has paid his delinquent debts and continues using a financial counselor. He has been drug free, and has obeyed the law. He successfully mitigated financial considerations, drug involvement, criminal conduct, and personal conduct security concerns. Clearance is granted.

On October 13, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant. The SOR alleged facts under Guidelines F (financial considerations), H (drug involvement), J (criminal conduct), and E (personal conduct) 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 Applicant's security clearance.

In a written statement dated November 22, 2004, Applicant responded to the allegations in the SOR, and requested a hearing. The case was assigned to me on ay 5, 2005. Notice of the hearing was issued June 23, 2005, scheduling the hearing for July 12, 2005. The hearing was held as scheduled. The transcript (Tr.) was received July 27, 2005.

Applicant admitted the allegations in the SOR except paragraph 3.b., unlawful possession of cocaine under Guideline J. After a thorough review of the record as a whole, I make the following findings of fact:

Applicant is a married, 39-year-old employee of a federal contractor, employed a as warehouseman. ⁽¹⁾ He served on active duty with the U. S. Air Force from August 1985 to December 1994, attaining the rank of senior airman (E-4). ⁽²⁾ Applicant has held a security clearance continuously since 1985. ⁽³⁾

Applicant owed the following delinquent debts listed in the SOR.

The debts listed in SOR paragraphs 1.a., 1.b., 1.d., 1.e., and 1.i. were paid by checks dated July 8, 2005, 4 days prior to the hearing. ⁽²¹⁾ There is no independent proof of the status of the other obligations other than Applicant's testimony. ⁽²²⁾

From 1995 through 2000, Applicant purchased and used cocaine. ⁽²³⁾ In October 1996, he completed the Air Force Substance Abuse Reorientation and Treatment (SART) two-week outpatient program. As a part of SART he attended six Alcoholics Anonymous meetings. ⁽²⁴⁾ On November 17, 1997, he disclosed to Air Force investigators that he was a frequent user of crack-cocaine. ⁽²⁵⁾ From November 21, 2000 through about January 11, 2001, he was treated at a Veterans Administration (VA) hospital and was diagnosed as cocaine dependent. ⁽²⁶⁾

Applicant's criminal history includes the following:

1. Misuse of a government IMPACT card. He paid $2,000 in restitution. ⁽²⁷⁾

2. In August 1996, Applicant pled guilty to a DUI. He refused a breathalyser test. He was given a suspended imposition of sentence, ordered to spend five days in jail, fined $1,163, ordered to attend a DUI driving program, and placed on three years probation. In February 1998, probation was revoked and a new order of probation was entered extending probation for three additional years, and he was given until August 4, 1999, to pay the balance of his fine. ⁽²⁸⁾

3. On September 3, 1997, he was reported to be unlawfully in possession of a rock of cocaine. Charges were not filed but he was barred from the Air Force base. ⁽²⁹⁾ Applicant denied the rock of cocaine was his. At the time he was stopped, he had a passenger in the car and the cocaine was found on the passenger's side. The officer conducting the field test dropped the entire rock of cocaine into the kit thus obliterating the evidence, resulting in no charges. The report said the cocaine was found in his coat pocket. ⁽³⁰⁾

4. As a result of the stop on September 3, 1997, Applicant was charged with DUI on September 8, 1997. His guilty plea resulted in three years unsupervised probation, ten days in jail, fines and fees totaling $1,589, and he was ordered to attend a drinking driver's school. ⁽³¹⁾

5. On September 1, 1999, he entered a guilty plea to 18 counts of uttering checks with insufficient funds. He paid $1,371 in fines, restitution, court costs, and fees. He was ordered to attend a bad check class and placed on six months unsupervised probation. ⁽³²⁾

6. Applicant was again charged with six violations of the bad checks law and posted bond in the amount of $654.33 to include restitution, costs, and fines. On arch 15, 2001, he failed to appear in court and bond was forfeited. ⁽³³⁾

Applicant's period of drug and alcohol abuse followed a period of time in which he and his wife had four children die at childbirth, and two more children were stillborn. ⁽³⁴⁾

In 1997, he assisted law enforcement authorities is shutting down five crack houses. ⁽³⁵⁾

Applicant has received financial counseling for over three years, established a plan of debt management, and with the assistance of his mother and aunt, has paid off all delinquent debts. He continues to see his financial counselor. ⁽³⁶⁾

His wife is on active duty with the Air Force and was transferred to a near-eastern European country, departing on the day of the hearing, July 12, 2005. The assignment is for fifteen months. ⁽³⁷⁾

Applicant successfully completed the Psychiatric Addiction Treatment Program (P.A.T.) on January 11, 2001. ⁽³⁸⁾ He attends Narcotics Anonymous and he is accountable to three men, including his pastor, talking with them at least three times a week. He counsels weekly with a psychiatrist. These persons help him stay clean from alcohol and drugs, which he has successfully maintained for 4 ½ years. ⁽³⁹⁾

The security manager with Applicant's employer wrote this about him.

In the four years I have known him, I have been impressed with his dedication to any endeavor he has been involved with. He demonstrates a giving and generous nature, willing to put forth the extra effort to get the job done. He has also demonstrated honesty, reliability, and proved to be very dependable while performing his daily duties. He has received several awards and was recognized by the Air Force Inspector General during a 2004 baseline inspection. From a personal perspective I do not see any indications of security concerns. ⁽⁴⁰⁾

"[No] one has a 'right' to a security clearance." ⁽⁴¹⁾ As Commander-in-Chief, the President has "the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position that will give that person access to such information." ⁽⁴²⁾ The President has restricted eligibility for access to classified information 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 coercion, and willingness and ability to abide by regulations governing use, handling, and protection of classified information." ⁽⁴³⁾ Eligibility for a security clearance may be adjudicated using the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative factors listed in ¶ 6.3 of the Directive: nature and seriousness of the conduct and surrounding circumstances; frequency and recency of the conduct; age of the Applicant; motivation of the applicant, and the extent to which the conduct was negligent, wilful, voluntary, or undertaken with knowledge of the consequences involved; absence or presence of rehabilitation; and probability that the circumstances or conduct will continue or recur in the future.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. ⁽⁴⁴⁾ The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. ⁽⁴⁵⁾

Once the Government establishes a disqualifying condition, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ⁽⁴⁶⁾ An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ⁽⁴⁷⁾ A person who has access to classified information enters into a fiduciary relationship with the Government based on trust and confidence. The Government, therefore, has a compelling interest in ensuring each Applicant possesses the requisite judgment, reliability and trustworthiness of one who will protect the national interests as his or his own. The "clearly consistent with the national interest" standard compels resolution of any reasonable doubt about an Applicant's suitability for access in favor of the Government. ⁽⁴⁸⁾ Decisions under this Directive include, by necessity, consideration of the possible risk an applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, not actual, risk of compromise of classified information.

Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides industrial security decisions shall be "in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned." Security clearance decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism.

Having considered the evidence as a whole, I find the following guidelines most pertinent to an evaluation of the facts of this case:

Guideline F: An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Unexplained affluence is often linked to proceeds from financially profitable criminal acts;

Guideline H: Improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information;

Guideline J: A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness; and

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

Financial Considerations. The security concern arising from financial difficulties is that "an individual who is financially overextended is at risk of having to engage in illegal acts to generate funds." The Regulation sets out several potentially disqualifying conditions under this guideline.

Financial considerations disqualifying condition (FC DC) 1 arises where there is A history of not meeting financial obligations. Similarly, FC DC 3 applies where the information shows an Inability or unwillingness to satisfy debts. The available information demonstrates Applicant has a history of not meeting his financial obligations. He has been delinquent in payments on several accounts incurred during the last six years. I conclude that FC DC 1 and FC DC 3 apply.

Various conditions can mitigate the security concerns arising from financial difficulties. The Regulation sets out financial considerations mitigating condition (FC MC) 4 that applies where The person has received or is receiving counseling for the problem and there are clear indications that the problem is being resolved or is under control. The available evidence indicates Applicant has received counseling for his financial problems. He established a plan and with the help of family members has paid all delinquent accounts. He is following his debt management plan established through his counselor. He is attempting to contact several creditors for whom there is no information on his credit reports. Further monitoring could ensure compliance. I conclude FC MC 4 applies.

FC MC 6 may apply where The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve bad debts. All but three unknown creditors are paid and his other obligations are kept current. Applicant is continuing efforts to contact the credit agencies to locate these disputed accounts. I believe in time he will be successful in arranging a repayment plan. FC MC 6 applies.

It is also important to consider other factors discussed in DoD Regulation 5200.2-R, Appendix 8, including: (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.

Applicant took the most important step when he realized he could not handle his finances without assistance and turned to a financial counselor for help. He has repaid delinquent accounts, and I believe with his accountability to his financial counselor, he will continue to handle his finances in a prudent manner. While most of his financial problems are a direct result of his past drug and alcohol abuse, it appears that Applicant has made significant and permanent behavioral changes regarding his finances, drugs, and alcohol, and that he will have these problems under control in the future. Certainly, the assistance of his NA support group will also provide him accountability and is an important factor in predicting future compliance. Balancing all the information, I conclude Applicant has mitigated the security concerns arising from his financial difficulties.

Drug Involvement. The Government has established its case under Guideline H. Applicant admitted the use of crack cocaine and cocaine over about a four to five year period, ending when he entered a drug counseling program in November 2000. Drug involvement disqualifying conditions (DI DC) that could raise a security concern include DI DC 1 Any drug abuse, and DI DC 2 Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution, and they are applicable in this case. The improper or illegal involvement with drugs raises questions regarding an applicant's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information. The purchase and use classify Applicant as an abuser.

The Directive is silent on what constitutes a sufficient period of reform and rehabilitation. However, such silence does not means I have unfettered discretion in deciding what period of time is sufficient to demonstrate reform and rehabilitation. The sufficiency or insufficiency of an applicant's period of conduct without recurrence of past misconduct does not turn on any bright-line rules concerning the length of time needed to demonstrate reform and rehabilitation, but rather a reasoned analysis of the facts and circumstances of an applicant's case based on a careful evaluation of the totality of the evidence record within the parameters set by the Directive. Applicant's last use occurred approximately in the October - November 2000 time frame. This is not recent use. Applicant has expressed he will not use illegal drugs in the future. Even if an applicant is sincere that he has no intention of using drugs in the future, I am not precluded from considering his statement in light of the record evidence as a whole in deciding whether the applicant is likely to adhere to such a commitment in the future. As a matter of common sense and human experience, people do not always successfully adhere to the promise to reform or change their conduct or lifestyle. Applicant successfully completed a P.A.T. program in January 2001, and has been drug free since. What is most compelling is his attendance at NA meetings. His continued counseling with three individuals to help keep him accountable for success with NA is the best evidence of rehabilitation and the desire to remain drug free. I had the opportunity to personally observe Applicant and evaluate his demeanor and veracity and make a favorable credibility determination. I make a favorable determination concerning his future intent. I find that drug involvement mitigating condition DI MC 3 A demonstrated intent not to abuse and drugs in the future applies.

Applicant used cocaine over a 4-5-year time span. The record contains medical evidence that confirms cocaine dependence. His drug involvement was a period of aberrational behavior. Applicant had an exemplary record before 1995 -1996 and after 2000. Because about five years has elapsed since his last drug use and his commitment with NA, I find DI MC 1 The drug involvement was not recent is applicable. Therefore, I find Guideline H for Applicant.

Criminal Conduct. The security concern under Guideline J (criminal conduct) is that someone who willingly disregards the law may also disregard rules and procedures intended to safeguard classified information. Criminal conduct disqualifying condition CC DC 1 Allegations or admissions of criminal conduct, regardless of whether the person was formally charged applies. Applicant admitted his conduct. Applicant's criminal history conduct is confined to actions occurring between 1996 and 2000. The DUI convictions and the misuse of the IMPACT card occurred prior to 1998. The bad checks occurred in 1999 and 2000, the last court date in March 2001. His drug and alcohol abuse was responsible for his conduct, and although it is not an excuse, it does explain why he reverted to irresponsible behavior during this time.

Applicant denied the allegation of SOR ¶ 1.r. Because the arresting officer destroyed the evidence by placing the entire rock of cocaine in the field test kit, there was no opportunity to have the evidence analyzed by a certified laboratory to determine its chemical properties. I find for Applicant on this issue.

Mitigating conditions that apply are criminal conduct mitigating condition CC MC 1 The criminal behavior was not recent, and CC MC 6 There is clear evidence of successful rehabilitation. The last criminal record was in March 2001 for bad checks. There is no evidence of when those checks were written but it appears it was some time prior to his entry into the drug rehabilitation program in November 2000. His involvement with NA and his continued counseling to keep himself accountable lead me to conclude that drug or alcohol traffic offenses are not likely to occur in the future. Because he has addressed his delinquent debts and is continuing to seek assistance with a financial counselor, he has demonstrated his rehabilitation and it is unlikely that crimes involving bad checks or misuse of government credit cards will again occur. His criminal activity was five years ago. Since then he has been successfully employed and doing commendable work for his employer. His employer's security officer stated her belief in his trustworthiness, his care in safeguarding classified information, and her recommendation that he be granted a security clearance because she had no security concerns about Applicant. On balance, I conclude Guideline J for Applicant.

Personal Conduct. Under Guideline E, a security concern arises where it is shown an applicant has exhibited questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations. Such conduct may indicate the person may not properly safeguard classified information. Personal conduct disqualifying conditions (PC DC) include PC DC 4 Personal conduct or concealment of information that increases an individual's vulnerability to coercion, exploitation, or duress, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail, and PC DC 5 A pattern of dishonesty. The government established a prima facie case against Applicant.

The government questions Applicant's trustworthiness because of his financial problems, his drug abuse and his criminal activity. Applicant has been forthright about his conduct, and is not a legitimate target for coercion or blackmail. Personal conduct mitigating condition PC MC 5 The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress applies. All three issues have been discussed above and do not need to be repeated. Applicant has put his period of financial irresponsibility, his drug and alcohol abuse, and his criminal activity behind him. All three concerns were necessitated due to his drug abuse. As he has a substantial period being drug free and his continuation with NA, I believe he no longer is a security risk. Accordingly, I conclude the SOR allegations under Guideline E for the Applicant.

I have carefully weighed all of the available evidence, and I have applied the appropriate disqualifying and mitigating conditions. Further, I have tried to make a fair and commonsense assessment of the record before me as required by Directive Section E2.2.3. To me, this record raises no reasonable or persistent doubts about Applicant's ability to protect classified information and to exercise the requisite good judgment and discretion expected of one in whom the government entrusts its interests. Because of the nature of the conduct and his efforts at mitigation, I conclude he has overcome the government's case.

Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1. Guideline F: FOR APPLICANT

Subparagraph 1.a. For Applicant

Subparagraph 1.b. For Applicant

Subparagraph 1.c. For Applicant

Subparagraph 1.d. For Applicant

Subparagraph 1.e. For Applicant

Subparagraph 1.f. For Applicant

Subparagraph 1.g. For Applicant

Subparagraph 1.h. For Applicant

Subparagraph 1.i. For Applicant

Subparagraph 1.j. For Applicant

Subparagraph 1.k. For Applicant

Subparagraph 1.l. For Applicant

Subparagraph 1.m. For Applicant

Subparagraph 1.n For Applicant

Subparagraph 1.o For Applicant

Subparagraph 1.p For Applicant

Subparagraph 1.q For Applicant

Subparagraph 1.r For Applicant

Subparagraph 1.s For Applicant

Subparagraph 1.t For Applicant

Paragraph 2. Guideline H: FOR APPLICANT

Subparagraph 2.a. For Applicant

Subparagraph 2.b. For Applicant

Subparagraph 2.c. For Applicant

Subparagraph 2.d. For Applicant

Paragraph 3. Guideline J: FOR APPLICANT

Subparagraph 3.a. For Applicant

Subparagraph 3.b. For Applicant

Subparagraph 3.c. For Applicant

Subparagraph 3.d. For Applicant

Subparagraph 3.e. For Applicant

Paragraph 4. Guideline E: FOR APPLICANT

Subparagraph 4.a. For Applicant

Subparagraph 4.b. For Applicant

Subparagraph 4.c. For Applicant

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue Applicant's security clearance. Clearance is granted.