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ISCR Case 16-01755.h1 — CASE

ISCR Case 16-01755.h1denied

Case Headnote

ISCR Case No. 16-01755.h1

deniedSep 22, 2017· Hon. Robert E. Coacher· hearing

Summary

A 29-year-old defense contractor and former Air Force member was denied a security clearance due to concerns under Guideline G (Alcohol Consumption), Guideline F (Financial Considerations), and Guideline E (Personal Conduct). The Statement of Reasons cited three DUI arrests in December 2011, February 2015, and March 2015. Additionally, the applicant had an unresolved charged-off account totaling $10,675.

Further, the applicant was alleged to have deliberately provided untruthful information on his August 2015 security clearance application by denying any charged-off financial accounts within the past seven years. While the applicant successfully mitigated the concerns related to personal conduct under Guideline E, the judge found insufficient evidence to mitigate the issues under Guidelines G and F.

Specifically, the three DUI arrests raised significant concerns regarding the applicant's reliability and judgment. The unresolved $10,675 charged-off debt also indicated poor financial management. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant had three DUI arrests, raising concerns about his reliability and judgment under Guideline G.
He failed to resolve a charged-off debt of $10,675, indicating poor financial management under Guideline F.

Conditions Referenced

Disqualifying

G-1raisedAlcohol-related Incidents Away From Work
F-1raisedInability to Satisfy Debts
F-2raisedHistory of Not Meeting Financial Obligations

Mitigating

E-1appliedPrompt, Good-faith Efforts to Correct the Omission
G-2rejectedAcknowledgment of Alcohol Use and Actions Taken to Overcome ItThe applicant did not provide sufficient evidence of treatment or a clear pattern of abstinence.
F-1rejectedBehavior Occurred Under Circumstances Unlikely to RecurThe applicant's financial issues remain unresolved.

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedJun 8, 2016
Answer filedJun 23, 2016
Hearing heldApr 11, 2017
Decision dateSep 22, 2017

Cite For

Insufficient Evidence to Mitigate Alcohol-related Security Concerns Under Guideline G
Failure to Resolve Significant Financial Obligations Under Guideline F
Mitigation of Personal Conduct Issues Under Guideline E Despite Other Disqualifying Factors

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant mitigated the personal conduct concerns under Guideline E. Specifically, the applicant voluntarily disclosed a delinquent car loan during a background investigation, which was considered a prompt and good-faith effort to correct the omission before being confronted with the facts. However, the applicant's other conduct related to alcohol and financial issues led to a denial of the security clearance overall.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	Applicant deliberately provided untruthful information when completing his August 2015 security clearance application (SCA) by answering “no” to a question about whether he had any charged-off financial accounts in the past seven years.	For Applicant	Omission or Failure to DiscloseFOUND DELIBERATESELF-CORRECTED	Financial	Denied	(a) deliberate omission, concealment, or falsification on a security form	(a) prompt, good-faith correction before being confronted	Claimed Voluntary Disclosure Before Confrontation

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant had a charged-off automobile debt of $10,650, which he failed to resolve, raising significant financial concerns under Guideline F. The applicant's lack of efforts to address this debt and his failure to provide evidence of financial counseling led to a ruling against him.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	charged-off account in the amount of $10,675 $10,675	Against Applicant	Auto Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—

Descriptive standardized rendering of a decided public case (Guideline F). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant had multiple alcohol-related incidents, including three DUI arrests between 2011 and 2015. The judge found that these incidents raised significant concerns about the applicant's reliability and trustworthiness, leading to a denial of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The SOR alleged Applicant was charged with driving under the influence of alcohol (DUI) on three occasions: December 2011, February 2015, and March 2015.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.b–1.e	4 sub-charges — specific text not stated in this decision (against the applicant).	Mixed			—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-01755 ) Applicant for Security Clearance )

For Government: Mary Margaret Foreman, Esq., Department Counsel For Applicant: Pro se

09/22/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant failed to mitigate the Government’s security concerns under Guideline G, alcohol consumption and Guideline F, financial considerations. He mitigated security concerns under Guideline E, personal conduct. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On June 8, 2016, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline G, alcohol consumption, Guideline F, financial considerations, and Guideline E, personal conduct. The DOD acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006.1

Applicant answered the SOR on June 23, 2016, and August 5, 2016, and requested a hearing. The case was assigned me on January 18, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on March 13, 2017, and the hearing was held as scheduled on April 11, 2017. The Government offered exhibits (GE) 1 through 6, which were admitted into evidence without objection. The Government’s exhibit list was marked as hearing exhibit (HE) I. Applicant testified, but did not offer any documentary evidence. DOHA received the hearing transcript (Tr.) on April 19, 2017.

Procedural Issues

Department Counsel moved to withdraw the allegation stated in SOR ¶ 1.bsince it was a duplicate of the allegation stated in SOR ¶ 1.a. There being no objection, I granted the motion. My formal findings will reflect that SOR ¶ 1.bwas withdrawn. Additionally, Department Counsel moved to amend the allegation stated in SOR ¶ 3.a to substitute “2.a” for “1.a” in the last sentence of SOR ¶ 3.a. The motion was granted and the allegation was so amended.2

FINDINGS OF FACT

In Applicant’s answer, he admitted all the allegations, except for SOR ¶ 3.a, which he denied. The admissions are adopted as findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact.

Applicant is 29 years old. He is divorced and has no children. He has worked for a defense contractor since 2012. He served in the Air Force for six years and was honorably discharged as a senior airman in 2012 (pay grade of E-4). He deployed to Iraq in 2007. He is a high school graduate and has taken some college courses.3

The SOR alleged Applicant was charged with driving under the influence of alcohol (DUI) on three occasions: December 2011, February 2015, and March 2015 (SOR ¶¶ 1.a, 1.c-1.d). The SOR also alleged Applicant had a charged-off account in the amount of $10,675 (SOR ¶ 2.a). Finally, the SOR alleged Applicant deliberately provided untruthful information when completing his August 2015 security clearance application (SCA) by answering “no” to a question about whether he had any charged- off financial accounts in the past seven years (SOR ¶ 3.a).

Alcohol Incidents

Applicant began drinking alcohol socially with his friends when he was about 19 years old. He routinely drank two to three times a week and consumed approximately three drinks per sitting if he was driving and approximately five to six drinks if he was not driving. He continued consuming this quantity up until his last DUI arrest in March 2015.4

In September 2011, Applicant was back in his home state on leave from the Air Force. He was going through his divorce and decided to go out drinking with some friends. On his way home, he was stopped by law enforcement for erratic driving. He failed the field sobriety tests that were administered and was arrested for DUI. He pleaded guilty and was sentenced to four days of jail time, fines, and ordered to attend alcohol education classes. He complied with the terms of his sentence. He attended his alcohol education classes through the Air Force Alcohol and Drug Abuse Prevention and Treatment program (ADAPT).5

In February 2015, Applicant was drinking alcohol because a family member recently died. On his way home from the bar, he was stopped by law enforcement for erratic driving. He was given and failed field sobriety tests. He was arrested for DUI. Before his February 2015 DUI charge was adjudicated, he was arrested again for DUI in March 2015. He drank two to three beers at the same bar he frequented in February then proceeded to drive home. He was stopped by law enforcement for running a stop sign. He was arrested for DUI. In a plea agreement reached with the prosecution, Applicant pleaded guilty to one charge of DUI, while the other charge was dismissed. He was sentenced to 10 days of jail time, fines, 48 hours of community service, mandatory Alcoholics Anonymous (AA) attendance, two years of having an ignition lock on his vehicle, and two years’ probation. His probation is scheduled to end in September 2017.6

Applicant indicated he initially sought alcohol treatment from the VA (no date provided), but he has not followed up on his initial inquiry. He stated that he is an irregular attendee of AA (since March 2015 has attended 33 AA meetings). He failed to present documentation concerning any past alcohol education or treatment. He testified that he has not been diagnosed as having an alcohol use disorder. He claims abstinence since March 2015. When asked about future use of alcohol, he stated he did not think he would use it, but he did not rule out doing so in the future. As of April 2016, he was in compliance with the terms of his probation.7

Finances

The sole delinquent account is an automobile repossession in an amount of $10,650. Two credit reports verify this debt, along with Applicant’s admission. He claims this debt was incurred when he financed the purchase of an automobile for a friend in January 2013. The friend was supposed to make the monthly payments, but she failed to do so and the car was repossessed. After the car was sold, the creditor came to Applicant for the deficiency balance. Applicant claimed he has called the creditor five to six times to resolve this debt. He did not present proof of payment or the details of a payment plan. He also stated he paid nine other non-SOR debts, but he did not provide supporting documentation. This debt is unresolved.8

Personal Conduct

Applicant failed to list the charged-off automobile debt on his SCA. During his background interview with a defense investigator in November 2015, he voluntarily provided the investigator information about the delinquent account before he was confronted with the debt.9

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), the entire process is a careful weighing of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion to obtain a favorable security decision.”

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline G, Alcohol Consumption

AG ¶ 21 expresses the security concern pertaining to alcohol consumption:

Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness.

AG ¶ 22 describes conditions that could raise a security concern and may be disqualifying. The following are potentially applicable in this case:

(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed with alcohol use disorder; and (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder.

Applicant’s three DUI arrests, most recently in 2015 (the last two just one month apart) support the application of the above disqualifying conditions.

I have also considered all of the mitigating conditions for alcohol consumption under AG ¶ 23 and found the following relevant:

(a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or judgment;

(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has established a pattern of modified consumption or abstinence in accordance with treatment recommendations; and

(d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.

Applicant’s last adverse alcohol incident occurred in March 2015, one month after he was charged with his second DUI since 2011. His alcohol-related incidents have not been infrequent having been arrested or charged three times since 2011. He remains on probation from his latest DUI conviction. Based upon his past record, I cannot conclude that an alcohol-related incident will not recur in the future. His actions cast doubt on his current reliability, trustworthiness, and good judgment. AG ¶ 23(a) does not apply.

Applicant apparently sought treatment from a VA facility, but he has not followed up. He did not present documentation of any treatment program. He claims that he has attended 33 AA classes since 2015. Although he claims abstinence since March 2015, he has done so in the artificial environment of being on probation. It is unclear what he will do once his probation ends. AG ¶ 23(b) and AG ¶ 23(d) partially apply.

Guideline F, Financial Considerations

AG ¶ 18 expresses the security concern for financial considerations:

Failure to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage.

The guideline notes several conditions that could raise security concerns. I have considered all of them under AG ¶ 19 and the following potentially apply:

(a) inability to satisfy debts; and

Applicant had a delinquent automobile debt that remains unpaid. I find both the above disqualifying conditions are raised.

The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. I have considered all of the mitigating conditions under AG ¶ 20 and the following potentially apply:

(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or good judgment;

(b) the conditions that resulted in the financial problem were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances;

(c) the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control; and

(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts.

Applicant failed to show efforts toward resolving his debt. This shows a lack of reliability, trustworthiness, and good judgment. AG ¶ 20(a) is not applicable. Applicant chose to fund a car loan for a friend. When the friend failed to make the payments, the creditor turned to Applicant for payment. Although Applicant claims he made several contacts with the creditor over the years, he failed to present evidence that he took responsible action to resolve this debt. AG ¶ 20(b) is partially applicable.

There is no evidence of Applicant receiving financial counseling. Applicant’s debt remain unaddressed. Applicant’s financial problems are not under control. Evidence of good-faith efforts to pay or resolve his debt is lacking. AG ¶¶ 20(c) and 20(d) do not apply.

Guideline E, Personal Conduct

AG ¶ 15 expresses the personal conduct security concern:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying in this case. The following disqualifying condition is potentially applicable:

(a) deliberate omission, concealment, or falsification of relevant 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.

Applicant failed to list the charged-off car loan on his SCA. He was aware of the loan, since he admitted contacting the creditor several times to try to resolve it. AG ¶ 16(a) applies.

The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered all of the mitigating conditions under AG ¶ 17 and found the following relevant:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts.

Applicant disclosed his delinquent car loan during his background investigation with a defense investigator in November 2015. The investigator’s report indicates that Applicant “volunteered” this information. AG ¶ 17(a) applies.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(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 extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent 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.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I considered Applicant’s military service, including his deployment to Iraq, his compliance with his current probation, and his personal circumstances. However, I also considered that he has had three DUI incidents since 2011 and failed to pay a $10,000 debt for which he is responsible. Applicant failed to provide sufficient evidence to mitigate the alcohol consumption and financial consideration security concerns.

Overall the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns under Guidelines G and F, but he did mitigate the concerns under Guideline E.

FORMAL FINDINGS

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

Paragraph 1, Guideline G: AGAINST APPLICANT Subparagraphs 1.a - 1.e: Against Applicant Subparagraph 1.b: Withdrawn Subparagraphs 1.c - 1.d: Against Applicant

Paragraph 2, Guideline F: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Paragraph 3, Guideline E: FOR APPLICANT Subparagraph 3.a: For Applicant

CONCLUSION

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 Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Tr. 10-12. 3 Tr. 6, 21-22, 24; GE 1. 4 GE 2. 5 Tr. 24-26; GE 2, 3. 6 Tr. 27-29; GE 2, 3. 7 Tr. 29-3; GE 6. 8 Tr. 32-33, 35; GE 4, 5. 9 Tr. 38-39; GE 2.