KEYWORD: Financial; Personal Conduct

DIGEST: Applicant tested positive for cocaine in 1999 and was terminated from a law enforcement position he held at the time. He also has $12,830.00 in unpaid delinquent debts dating back to 1999, one of which was reduced to judgment in 2000. Applicant denied using any illegal drugs and failed to disclose the judgment on three separate security clearance applications (SF 86) he filed in 2001. Applicant failed to mitigate the security concerns raised by personal conduct and financial issues. Clearance is denied.

CASE NO: 03-25843.hl

DATE: 08/31/2005

DATE: August 31, 2005

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

DAVID S. BRUCE

APPEARANCES

FOR GOVERNMENT

Julie R. Edmunds, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant tested positive for cocaine in 1999 and was terminated from a law enforcement position he held at the time. He also has $12,830.00 in unpaid delinquent debts dating back to 1999, one of which was reduced to judgment in 2000. Applicant denied using any illegal drugs and failed to disclose the judgment on three separate security clearance applications (SF 86) he filed in 2001. Applicant failed to mitigate the security concerns raised by personal conduct and financial issues. Clearance is denied.

STATEMENT OF THE CASE

On October 27, 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 Review Program, dated January 2, 1992, as amended and modified (Directive), issued a Statement of Reasons (SOR) to Applicant in response to his application for a security clearance. The SOR detailed why DOHA could not preliminarily determine under the Directive that it is clearly consistent with the national interest to grant or continue Applicant's request for a security clearance.

On January 19, 2005, Applicant responded to each of the SOR allegations and elected not to present his case at a hearing. Department Counsel submitted the government's File of Relevant Materials (FORM) on May 25, 2005, which contained 12 itemized documents in support of the allegations. In Section III of the FORM, Department Counsel moved to amend the SOR in subparagraph 2.b. to change "Question 28" to "Question 24" in the text, and in subparagraph 2.c. to change "Question 37" to "Question 27" in the text. The complete FORM was forwarded to Applicant and received by him on May 31, 2005. Applicant was given 30 days to file objections and to submit information in support of his position. No further response was submitted by Applicant and the case was assigned to me on June 30, 2005.

FINDINGS OF FACT

No response was filed by Applicant to the Motion to Amend submitted by Department Counsel as a part of the FORM. Accordingly, the Motion is granted regarding the clerical amendments set forth above, and they are incorporated into the SOR by reference.

Applicant has admitted the allegations of subparagraphs 1.a. through 1.e. of the SOR pertaining to financial considerations, with the qualification that he is paying the IRS debt referred to in subparagraph 1.a. on an installment plan. Pertaining to personal conduct, Applicant has also admitted the allegations of subparagraphs 2.a. and 2.c., with explanations, but has denied the allegation of subparagraph 2.b. of the SOR. The admissions are incorporated herein by reference. After a thorough review of all the evidence in the record and the separate statement submitted by Applicant in the case to support his position, I make the following additional findings of fact:

Applicant is 49 years old, has never been married, and has no children. He was unemployed when he submitted his last security clearance application (SF 86) in October 2001. ⁽¹⁾ Applicant held a previous position as a security officer with a private company for about a year, and also held a job as a corrections officer in a state prison system for about five years during two different time intervals. ⁽²⁾ He has not served in the military and has never been granted a security clearance. ⁽³⁾ As of May 23, 2003, Applicant resided with his mother, and according to the financial statement he submitted to a Special Agent of the Defense Security Service (DSS), he maintained a positive cash flow at the time of $742.00 per month. ⁽⁴⁾

Applicant has delinquent consumer debt totaling $5,408.00. ⁽⁵⁾ He has also been delinquent in state income taxes since 1999 in the amount of $2,197.15, ⁽⁶⁾ and to the Internal Revenue Service in the amount of $5,225.27 for the same year. ⁽⁷⁾ His largest credit debt in the amount of $4,655.00 was reduced to judgment in 2002 and has not been paid. ⁽⁸⁾

In May 2003, Applicant indicated he would contact his creditors and begin making payments. ⁽⁹⁾ He has submitted no further information or documentation indicating any payments have been made against any of the debts. Also, he has not submitted any documentation verifying he has paid his IRS delinquency pursuant to an installment plan. ⁽¹⁰⁾

In July 1999, Applicant tested positive for cocaine while employed as a security officer in a state correctional facility. He was fired from his job as a result of the incident and he did not appeal the final decision of the state administrative appeals examiner. ⁽¹¹⁾ In February 2001, Applicant was fired from another job as a security guard with a private company for workplace misconduct. ⁽¹²⁾

Applicant completed his first SF 86 on May 13, 2001. In response to Question 24, he admitted using cocaine once in the preceding seven year period, but denied ever using any illegal drug while employed as a law enforcement officer. ⁽¹³⁾

He completed a second SF 86 on July 30, 2001. In response to Question 24, Applicant denied using any illegal drugs at any time during the previous seven year period, whether or not he was employed as a law enforcement officer at the time. ⁽¹⁴⁾

Applicant completed a third SF 86 on October 29, 2001. In response to Questions 27 and 28, he again denied using any illegal drugs at all during the previous seven year period. ⁽¹⁵⁾

In all three of Applicant's security clearance applications noted above, he denied having any financial judgments entered against him in the preceding seven year period. ⁽¹⁶⁾

POLICIES

Enclosure 2 of the Directive, Adjudicative Guidelines For Determining Eligibility For Access To Classified Information, sets forth the criteria which must be evaluated when determining security clearance eligibility. The adjudicative guidelines specifically distinguish between those factors that are considered in denying or revoking an employee's request for access to classified information (Disqualifying Conditions), together with those factors that are considered in granting an employee's request for access to classified information (Mitigating Conditions). By acknowledging that individual circumstances of each case are always different, the guidelines provide substantive standards to assist an administrative judge in reaching fair and impartial common sense decisions.

The adjudicative process requires thorough consideration and review of all available, reliable information about the applicant, past and present, favorable and unfavorable, to arrive at well informed decisions. Section E2.2. of Enclosure 2 of the Directive describes the essence of scrutinizing all appropriate variables in a case as the "whole person concept." In evaluating the conduct of the applicant and the circumstances in any case, the factors an administrative judge should consider pursuant to the concept are: (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 the 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.

Protecting national security is the paramount concern in reaching a decision in any case, and is dependent upon the primary standard that issuance of a clearance must be clearly consistent with the interests of national security. Granting an applicant's clearance for access to classified information is predicated on a high degree of trust and confidence in the individual. Accordingly, decisions under the Directive must include consideration of not just the actual risk of disclosure of such information, but also consideration of any possible risk an applicant may deliberately or inadvertently compromise classified information in any aspect of his or her life. Any doubt about whether an applicant should be allowed access to classified information must be resolved in favor of protecting classified information. ⁽¹⁷⁾ The decision to deny a security clearance request to an individual is not necessarily a determination of the loyalty of the applicant. ⁽¹⁸⁾ It is merely an indication the applicant has not met the strict guidelines established by the Department of Defense for issuing a clearance.

In accordance with the Directive, the government bears the burden of proof in the adjudicative process to first establish conditions which indicate it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. ⁽¹⁹⁾ The legal standard for the burden of proof is something less than a preponderance of the evidence. ⁽²⁰⁾ When the government meets this burden, the corresponding heavy burden of rebuttal then falls on the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the position of the government, and to ultimately demonstrate it is clearly consistent with the national interest to grant or continue the applicant's clearance. ⁽²¹⁾

Upon consideration of all the evidence submitted in this matter, the following adjudicative guidelines are appropriate for evaluation with regard to the facts of this case:

Guideline F - Financial considerations are a security concern because an individual who is financially overextended is at risk of having to engage in illegal or unethical acts to generate funds to meet financial obligations. Unexplained affluence is often linked to proceeds from financially profitable criminal acts. A security concern exists when a person has significant delinquent debts. An individual who is financially irresponsible may also be irresponsible, unconcerned or careless in their obligation to protect classified information.

Guideline E - Personal conduct is a security concern because conduct involving questionable judgment, trustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

CONCLUSIONS

I have thoroughly considered all the facts in evidence in this case and the legal standards required by the Directive. The government has established a prima facie case for disqualification under Guideline F - Financial Considerations.

Considering all the evidence, Financial Considerations Disqualifying Conditions (FC DC) FC DC E2.A6.1.2.1. (A history of not meeting financial obligations), and FC DC E2.A6.1.2.3. (Inability or unwillingness to satisfy debts), apply in this case. Applicant admits having significant outstanding debts that accrued at least six years ago. The amount of the debt admitted by Applicant is $12,830.42, of which amount $7,422.42 is for delinquent federal and state income taxes which remain unpaid. An outstanding personal judgment against Applicant in the amount of $4,655.00 also remains unpaid, but he has made no effort to resolve any of these debts for many years.

I have also considered all the Financial Considerations Mitigating Conditions (FC MC), and specifically considered FC MC E2.A6.1.3.3. (The conditions that resulted in the behavior were largely beyond the person's control, e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and FC MC E2.A6.1.3.6. (The individual initiated a good faith effort to repay overdue creditors or otherwise resolve debts). I conclude they do not apply.

Applicant submits he encountered financial difficulty caused by periods of unemployment. ⁽²²⁾

Since 1999, however, the periods of unemployment were primarily caused by Applicant being fired from two separate jobs for misconduct. As to the overdue federal income taxes, he admits he has not done anything to arrange for payment, and he has actually received refunds from the IRS for subsequent tax years. In May 2003 during his interview with the DSS special agent, Applicant represented he was going to see a tax lawyer to get the matter resolved. Applicant has submitted no further information verifying any effort he has made since that time to pay or otherwise resolve his delinquent taxes or any of his other debts. ⁽²³⁾ According to Applicant's financial statement, he has been able to make payments, but has simply elected not to do so.

The government has also established a prima facie case for disqualification under Guideline E - Personal Conduct. Based on all the evidence, Personal Conduct Disqualifying Condition (PC DC) E2.A5.1.2.1. (Reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances) and PC DC E2.A5.1.2.2. (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), apply in this case.

Applicant's former employer submitted documents from personnel records detailing the drug testing event that caused Applicant's termination. State officials characterized the event as illegal conduct by Applicant that endangers the public safety, internal security, or affects the safe and efficient operation of the Department. ⁽²⁴⁾ This unfavorable information considering the nature of Applicant's work is not inconsistent with Applicant's admissions. Applicant, nonetheless, offered a myriad of explanations as to how the positive drug test occurred. He initially stated he attended a party with former inmates of the prison who must have slipped cocaine into his drink, ⁽²⁵⁾ and later suggested his girlfriend contaminated his food. ⁽²⁶⁾ In his later DSS statement, however, he said he "tasted" the cocaine but couldn't recall if he found a bag containing the cocaine at his workplace or had gotten it from his brother, ⁽²⁷⁾ or whether someone left it in his car. ⁽²⁸⁾ There is no dispute that Applicant was terminated for testing positive for cocaine while employed in a sensitive law enforcement position. Applicant also failed to disclose the monetary judgment entered against him in May 2000 on all three applications. Applicant claims he did not know about the judgment entered almost a year before filing his first SF 86, but he was clearly aware of the underlying debt. These numerous conflicting explanations question Applicant's truthfulness, and, at a minimum, demonstrates a pattern of dishonesty and rule violations raising serious security concerns.

I have considered all the Personal Conduct Mitigating Conditions (PC MC), and specifically considered PC MC E2.A5.1.3.3. (The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts.). I conclude it does not apply. Applicant submitted his first SF 86 in May 2001, less than two years after being terminated from his prison job in July 1999, and he submitted two more SF 86 applications in the next five months thereafter. He denied using cocaine while employed as a law enforcement officer in all three applications. While Applicant admitted he was fired from his job for a positive drug test in another part of the application, his answers were still misleading and could have misled agency investigators. Given the subject matter of the omitted information, it is reasonable to conclude that Applicant considered that disclosure of such information would be clearly relevant and material to a security clearance investigation and could result in an unfavorable decision.

Applicant also had an affirmative obligation to determine the status of all his debts and fully disclose each one on his SF 86 questionnaire. One objective of the security clearance process is to determine all relevant and material information concerning the applicant. Based upon truth and honesty, the process requires full and open disclosure by the applicant of all requested information. Any intentional misrepresentation or omission by an applicant raises serious concerns about the character and overall integrity of the individual. Applicant attributes his omissions to misjudgment or error on his part. His candor and credibility are questionable, however, considering his numerous conflicting explanations. The security concerns raised by such omissions have not been mitigated considering all the circumstances.

I have further reviewed all the record evidence in this case with respect to the "whole person" concept required by the Directive. I am persuaded by the totality of the evidence that it is not clearly consistent with the national interest to grant Applicant a security clearance. For the reasons stated, Applicant has failed to mitigate the security concerns caused by the financial considerations and personal conduct issues raised in this case. Accordingly, Guideline F and Guideline E are decided against Applicant.

FORMAL FINDINGS

In accordance with Section E3.1.25 of Enclosure 3 of the Directive, the following are the formal findings as to each allegation in the SOR:

Paragraph 1. Financial Considerations (Guideline F) AGAINST THE APPLICANT

Subparagraph 1.a. Against the Applicant

Subparagraph 1.b. Against the Applicant

Subparagraph 1.c. Against the Applicant

Subparagraph 1.d. Against the Applicant

Subparagraph 1 e. Against the Applicant

Paragraph 2. Personal Conduct (Guideline E) AGAINST THE APPLICANT

Subparagraph 2.a. Against the Applicant

Subparagraph 2.b. Against the Applicant

Subparagraph 2.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. Clearance is denied

David S. Bruce

Administrative Judge

1. Item 11 (Applicant's Security Clearance Application dated October 29, 2001) at 3. See also Item 12 (Applicant's Security Clearance Application dated July 30, 2001) at 3, and Item 4 (Applicant's Security Clearance Application dated May 13, 2001) at 3, indicating he was unemployed when he submitted those applications as well.

2. Id., at 4.

3. Id., at 6 and 9.

4. Item 5 (Applicant's statement dated May 23, 2003) at 5-6.

5. Item 3 (Applicant's answer to SOR dated November 24, 2004) at 1.

6. Item 9 (State tax records dated May 24, 2004) at 1

7. Item 8 (IRS records dated June 2, 2004) at 1.

8. Item 5 supra note 4, at 4.

9. Id., at 5.

10. Item 3, supra note 5, at 1.

11. Item 5, supra note 4, at 1-2. See also Item 10 (State Correctional Center Employment Records dated July 16 1999 and January 28, 2000), at 1-7.

12. Item 11, supra note 1, at 7.

13. Item 4, supra note 1, at 8.

14. Item 12, supra note 1, at 8.

15. Item 11, supra note 1 at 9.

16. Item 4, supra note 1, at 8; Item 12, supra note 1, at 8; and Item 11, supra note 1, at 11.

17. Directive, Enclosure 2, Para. E2.2.2.

18. Executive Order 10865 § 7.

19. ISCR Case No. 96-0277 (July 11, 1007) at p. 2.

20. Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).

21. ISCR Case No. 94-1075 (August 10, 1995) at pp. 3-4; Directive, Enclosure 3, Para. E3.1.15.

22. Item 5, supra note 4, at 4.

23. Id., at 3-4.

24. Item 10, supra note 11, at 2.

25. Id., at 1.

26. Id., at 6.

27. Item5, supra note 4, at 2.

28. Item 3, supra note 5, at 1.