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ISCR Case 16-02024.h1 — CASE

ISCR Case 16-02024.h1denied

Case Headnote

ISCR Case No. 16-02024.h1

deniedAug 18, 2017· Hon. Gina L. Marine· hearing

Summary

A 38-year-old sheet metal worker was denied a security clearance due to concerns under Guidelines F (Financial Considerations), G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from a history of significant financial difficulties, substance use, and criminal conduct.

Specifically, the applicant had a substantial mortgage foreclosure debt of approximately $135,000, along with unresolved medical debts totaling $801. Other financial issues included a $494 stipulated judgment from June 2012, a $237 default judgment from March 2009, and a $70 account in collection.

Additionally, the applicant had a history of excessive alcohol consumption, evidenced by two DUI arrests in August 2015 and July 2012. He also had two arrests for marijuana possession, resulting in guilty pleas in May 2013 and May 2008. Other criminal conduct included a breach of peace charge in October 2011 and another in July 2015, which was dismissed after he was identified as the victim. The judge concluded that the applicant's financial irresponsibility and substance misuse raised serious questions about his reliability and trustworthiness.

Why the Applicant Was Denied

The applicant has a significant mortgage foreclosure debt of $135,000 and unresolved medical debts totaling $801.
The applicant has a history of excessive alcohol consumption and marijuana use, including two arrests for DUI and two arrests for marijuana possession.
The applicant's financial irresponsibility and substance misuse raise questions about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 19(a)appliedInability to Satisfy Debts
AG ¶ 19(c)appliedHistory of Not Meeting Financial Obligations

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG.”

Procedural Posture

SOR issuedAug 15, 2016
Answer filedSep 10, 2016
Hearing heldMar 30, 2017
Decision dateAug 18, 2017

Cite For

Financial Irresponsibility Under Guideline F
Substance Misuse Concerns Under Guidelines H and J
Impact of Criminal Conduct on Security Clearance Eligibility Under Guideline J

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 F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found multiple financial concerns under Guideline F, including a mortgage foreclosure with a deficiency balance of $135,000 and three medical debts totaling $801. The judge ruled against the applicant on two of the financial allegations while finding the applicant for the other two, ultimately denying the security clearance due to unresolved financial obligations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	$494 stipulated judgment in June 2012 $494	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	$237 default judgment in March 2009 $237	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.c	deficiency balance owed on the loan in the approximate amount of $135,000 $135,000	Against Applicant	Mortgage or Home Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.d	$70 account in collection status $70	Against Applicant	Unspecified Financial	Denied	(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 judge found against the applicant on the alcohol consumption allegations, specifically noting the applicant's history of excessive alcohol use and two DUI arrests. The applicant's claims of rehabilitation and intent to abstain from alcohol were not sufficient to mitigate the concerns raised under Guideline G, leading to a denial of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
4.a	The applicant has a history of excessive alcohol consumption, including two DUI arrests.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's drug involvement and substance misuse concerns were mitigated. The applicant was found to have used marijuana but had not used it since May 2013. The judge ruled in favor of the applicant on both allegations under Guideline H, indicating that the applicant's past conduct did not disqualify him from holding a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a–2.b	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on several allegations of criminal conduct, including two DUI charges and multiple incidents of breach of peace. The applicant's history of criminal behavior raised significant concerns regarding his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	In August 2015, Applicant was arrested and charged with driving while under the influence of alcohol (DUI).	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
3.b	In July 2015, Applicant was charged with breach of peace, but the court ultimately dismissed it after identifying him as the victim of the assault.	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Denied	—	—	—
3.c	In May 2013, Applicant was arrested for possession of marijuana and pled guilty.	Against Applicant	Drug Related Criminal Charge	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
3.d	In July 2012, Applicant was arrested and charged with driving while under the influence of alcohol (DUI).	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
3.e	In October 2011, Applicant was charged with breach of peace.	Against Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
3.f	In May 2008, Applicant was arrested for possession of marijuana and pled guilty.	Against Applicant	Drug Related Criminal Charge	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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: ) ) [REDACTED] ) ISCR Case No. 16-02024 ) Applicant for Security Clearance )

For Government: Rhett E. Petcher, Esq., Department Counsel For Applicant: Thomas Albin, Esq.

08/18/2017 ______________

STATEMENT OF CASE

______________

MARINE, Gina L., Administrative Judge:

This case involves security concerns raised under Guideline F (Financial Considerations), Guideline H (Drug Involvement and Substance Misuse), Guideline J (Criminal Conduct), and Guideline G (Alcohol Consumption). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on March 3, 2015 (SCA). On August 15, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines F, H, J, and G. The DOD CAF 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 DOD on September 1, 2006.

Applicant answered the SOR on September 10, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 27, 2016, and the case was assigned to me on January 25, 2017. On February 28, 2017, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for March 30, 2017. I convened the hearing as scheduled. Government Exhibits (GE) 1 through 9 were admitted into evidence, without objection. I appended to the record a letter the Government sent to Applicant as Hearing Exhibit (HE) I, and the Government’s exhibit list as HE II. At the hearing, Applicant testified and submitted Applicant’s Exhibit (AE) A, which was admitted into evidence, without objection. Two witnesses testified on behalf of Applicant. At Applicant’s request, I left the record open to April 13, 2017. Applicant timely provided additional documents that I admitted into evidence as AE B and C, without objection. DOHA received the transcript (Tr.) on April 7, 2017.

On June 8, 2017, the DOD implemented new AG.1 Accordingly, I have applied the June 2017 AG.2 However, because the September 2006 AG were in effect on the date of the hearing, I have also considered the September 2006 AG. Having considered both versions of the AG, I conclude that my decision would have been the same had I applied the September 2006 AG.

Findings of Fact3

Applicant, age 38, has been separated from his wife of 10 years since 2014. He has one daughter, age 16, and one son, age 18. He received his high school diploma in 1997. He honorably served in the U.S. Army for two months in 1999. He is a sheet metal worker employed by the same defense contractor (Employer A) on and off for almost 13 years. He has held a security clearance since 2005.

Employer A placed Applicant under notice of layoff on numerous occasions and laid him off three times. The first layoff period was March 2007 through April 2008; the second, March 2012 through May 2012; and the third, October 2012 through November 2012. During the first layoff period, he was able to secure alternate employment for approximately five months. He received unemployment compensation during each period that he was unemployed.4

The SOR contains four allegations under Guideline F involving a mortgage-loan foreclosure with a deficiency balance of $135,000 (SOR ¶ 1.c), and three medical debts (two judgments and one collection account) totaling $801 (SOR ¶ 1.a, 1.b, and 1.d). It also contains allegations and cross-allegations under Guideline H (SOR ¶¶ 2.a and 2.b), J (SOR ¶¶ 3.a through 3.f), and G (SOR ¶¶ 4.a), primarily involving Applicant’s excessive alcohol consumption and marijuana use. In his SOR answer, Applicant denied the debt alleged in SOR ¶ 1.d ($70, medical account in collection status) on the basis that it was unknown to him. He admitted the remaining allegations. The credit reports establish the debt alleged in SOR ¶ 1.d.5

Financial

Applicant purchased a $217,000 home with his wife in March 2007. They financed 100% of the purchase price through an adjustable-rate loan with Lender A. Applicant deposited his paycheck into a joint account from which his wife agreed to make the monthly loan payments. In about 2009 or 2010, Applicant learned that the loan was in default. Applicant attributed the default to his wife not making payments, and the loan’s interest rate increasing to an amount that they could not afford.6

Despite Applicant’s years-long efforts to modify the loan, in approximately April 2014, Lender A initiated foreclosure proceedings. Lender A was granted a foreclosure judgment in April 2015 and took possession of the property in July 2015. Applicant remains indebted to Lender A for a deficiency balance owed on the loan in the approximate amount of $135,000 (SOR ¶ 1.c). Applicant has not contacted Lender A to resolve the debt, nor does he intend to since he does not want to trigger action by Lender A to collect the debt. If Lender A contacted him, Applicant would endeavor to arrange an affordable payment plan to resolve the debt.7

Although he has considered it, Applicant would prefer not to file bankruptcy for fear that it would negatively impact his security clearance, and because he would rather attempt to take care of his debts on his own.8 When he was contacted by a creditor six months ago about an unpaid $1,000 electric bill incurred by his wife, he immediately negotiated a monthly payment agreement, which satisfied the debt in full in March 2017.9

Applicant attributed all of his alleged and unalleged medical debt to services rendered by Hospital A and Hospital B to either his wife or children.10 Hospital A obtained a $594 judgment in June 2012 (not alleged), which was satisfied through an involuntary garnishment in June 2016. Hospital B obtained a $494 stipulated judgment in June 2012 (SOR ¶ 1.a), and a $237 default judgment in March 2009 (SOR ¶ 1.b), both of which were resolved by garnishment. A medical creditor, which Applicant believed to be either Hospital A or Hospital B, obtained a $418 judgment in July 2012 (not alleged). An unspecified medical creditor placed a $70 account in collection status in December 2011 (SOR ¶ 1.d).11

During his 2016 security-clearance interview, Applicant believed the $70 debt to be included among those owed to either Hospital A or Hospital B. However, in his answer to the SOR and at the hearing, he claimed no knowledge of the creditor. He has not disputed the debt, and promised to pay it once the creditor is known. However, as of the hearing date, he had not made any effort to determine who the creditor is.12

Applicant has not sought or received financial counseling. He earns $29.39 per hour working full time, with “very limited” opportunities for overtime which, at most, average two or three days per month. In 2016, he earned an annual salary of about $50,000 to $60,000. He does not have a savings account as he lives “paycheck to paycheck.” Applicant financed a $480 purchase by opening a retail credit card with a credit limit of $500 in April 2016. By July 2016, he was past due on his payment to that creditor, and also on his car payment.13

Marijuana Use and Criminal Conduct

Applicant was arrested twice for incidents involving marijuana, in May 2008 (SOR ¶ 3.f) and May 2013 (SOR ¶ 3.c). At the time of his 2008 arrest, he was in possession of marijuana as a passenger while parked in a vehicle with co-workers. Although he had planned to smoke the marijuana, he had not yet done so when he was arrested. At the time of his 2013 arrest, he had been smoking marijuana while parked in a vehicle with Friend A and remained in possession of it. In each instance, Applicant was charged with possession of marijuana to which he pled guilty. Applicant held an active security clearance in May 2013 (SOR ¶ 2.a). His clearance was inactive in April 2008 because he was not working for Employer A at the time.14

Although he knew that marijuana use was prohibited while he held a security clearance, Applicant did not think about that on the occasion of his use in 2013. He attributed that use to stress related to his separation and financial situation, during which time he “was [not] thinking straight.” Applicant continued to associate with Friend A through at least March 2016. At his hearing, he stated that they now remain in contact only occasionally through social media. He has not used marijuana since May 2013.15 Criminal Conduct

Applicant was charged twice with breach of peace, in October 2011 (SOR ¶ 3.e) and July 2015 for which he was also arrested (SOR ¶ 3.b).

In October 2011, while attending his son’s football game, Applicant became upset about the coach’s calls and his son’s playing time and verbally argued about it with the league’s vice president so loudly and with such profanity that a third party bystander called the police. As Applicant approached the police officer, he “used the F bomb,” for which he was charged with breach of the peace. The court fined him $70. Since then, Applicant has not had any similar incidents at either of his children’s sporting events.16

In July 2015, Applicant verbally argued and exchanged profanities with an individual who was upset that he lingered in a parking lot while dropping off a friend with whom the individual did not get along. The argument escalated when the individual, armed with a pipe, smashed the hood of Applicant’s car, and then swung it at him seven or eight times. The argument began while Applicant was inside of his car and continued after he exited the car, which he acknowledged was a mistake. Applicant sustained bruising to his body and, because he used it to block the pipe from hitting his head, severe injury to his hand, which required reconstructive surgery involving twelve screws and two plates. His hand has never fully recovered. Although he was charged with breach of the peace for being involved in the incident (SOR ¶ 1.b), the court ultimately dismissed it after identifying him as the victim of the assault.17

Alcohol Consumption and Criminal Conduct

Applicant was arrested and charged twice for driving while under the influence of alcohol (DUI), in July 2012 (SOR ¶ 3.d) and August 2015 (SOR ¶ 3.a).

In July 2012, Applicant had consumed approximately one alcoholic beverage (either a beer or a shot) per hour over the course of about 10 hours while at a bar with friends. Because he thought his friends were “more intoxicated than he was” and he had stopped drinking a few hours prior, he believed he was okay to drive everyone home. He was pulled over by law enforcement for speeding. After failing a field sobriety test, he was arrested, charged with DUI, and taken to jail. In October 2014, a court found him guilty of the charge, sentenced him to 364 days in jail (with all but one day suspended), fined him $5,000, ordered him to install an ignition interlock system (IIS) on his vehicle for an unspecified period of time, and placed him on probation for five years.18 In August 2015, Applicant had consumed “more than a few” alcoholic beverages during the day while at home to cope with stress he was under at the time. At the same time, he had taken Percocet for the hand injury he sustained in July 2015. He left home in an agitated state while his “adrenaline was up” and drove a vehicle. Because he was driving slow and entered the highway the wrong way, he was pulled over by law enforcement. After “significantly” failing a field sobriety test, he was arrested, charged with DUI, and taken to jail where he remained overnight. In January 2016, the court sentenced Applicant, who pled guilty, to six months in jail (all but 15 days suspended), fined him $1,000, ordered him to complete a treatment program, and placed him on supervised probation for 18 months, which was scheduled to terminate in July 2017 assuming he was compliant with the conditions of his probation. He is prohibited from consuming alcohol while on probation.19

In addition to the court-ordered treatment for his 2015 DUI, which he completed by attending a 12-week program, Applicant voluntarily attended an alcohol treatment program for an unspecified period following his 2012 arrest, and Alcohol Anonymous (AA) meetings for about six months following his 2015 arrest. At the hearing, Applicant claimed that he had last consumed alcohol a few days after his 2015 arrest. However, as of his March 2016 security-clearance interview, he reported then consuming alcohol approximately twice a week, but was not driving after any consumption. Nevertheless, at the hearing, he professed an intent not to consume alcohol in the future. He believes that he will be successful because of the tools he learned through AA and during his 2015 DUI treatment program, which he has since applied. He has been able to socialize with others who are consuming alcohol without doing so himself, and has learned to have fun without it.20

Whole Person

At the hearing, Applicant accepted full responsibility for the poor judgment revealed by his excessive consumption of alcohol and marijuana use. He maintained that he has changed his behavior and found other outlets to manage stressful situations to which he attributed his past errors in judgment. Applicant’s two children have resided with him full time since November 2016. As such, he has been their primary caregiver. His son’s biological father has never been around so Applicant has raised his son from the time he was six-months old. He continued to provide for his children financially after his separation from their mother, including a voluntarily monthly child support payment of $200 while they lived separately from him. He also provides health insurance for them and his wife, and pays for other expenses incurred by the children, as needed.21

Applicant volunteered to serve as a union steward at his place of employment in the summer of 2016. His chief steward (Witness A) and another union leader (Witness B), both of whom work with him daily, praised his reliability, trustworthiness, and good judgment. Witness A, who has also known Applicant personally on and off for 30 years, said that Applicant has become his “best steward” in the relatively short time he has held the position. Witness A reported that Applicant is highly regarded by his peers and superiors. Witness B, who has known Applicant as a co-worker and friend for approximately ten years, also praised Applicant’s work performance. Both Witness A and B lauded Applicant’s evolution over the past three or four years into a responsible man who has moved well beyond the mistakes of his past.22

POLICIES

“[N]o one has a ‘right’ to a security clearance.”23 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 have access to such information.”24 The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”25

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the 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.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”26 Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR.27 “Substantial evidence” is “more than a scintilla but less than a preponderance.”28 The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability.29 Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.30 An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government.31

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.”32 “[S]ecurity clearance determinations should err, if they must, on the side of denials.”33

ANALYSIS

Guideline F (Financial Considerations)

The concern under this guideline is set out in AG ¶ 18:

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 . . . Applicant’s financial indebtedness establishes the following disqualifying conditions under this guideline: AG ¶ 19(a): inability to satisfy debts; and AG ¶ 19(c): a history of not meeting financial obligations.

None of the potentially applicable mitigating conditions under this guideline are established:

AG ¶ 20(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;

AG ¶ 20(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;

AG ¶ 20(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

AG ¶ 20(d): the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts.

Applicant’s $70 medical debt is not security significant on its own, especially as to the amount owed. However, together with his $135,000 mortgage debt, it evinces Applicant’s irresponsibility towards his financial obligations. Although I find in favor of Applicant as to the medical-account judgments alleged in SOR ¶¶ 1.a and 1.b, the fact that they were resolved by involuntary garnishments further underscores the concern. While his marital separation, three layoffs, and wife’s failure to pay the mortgage were circumstances beyond his control, Applicant failed to take any proactive steps to resolve his mortgage deficiency or to ascertain information that would enable him to pay his unknown medical creditor. I credit Applicant with the pre-foreclosure efforts he made to resolve his delinquent mortgage account and with recently resolving his wife’s electric bill in a responsible manner. However, those efforts are insufficient to overcome his inaction with respect to the mortgage deficiency and medical debt. At this time, Applicant’s finances are not under control and a substantial debt remains unresolved.

Guideline H (Drug Involvement and Substance Misuse)

The concern under this guideline is set out in AG ¶ 24: “The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual's reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations. Controlled substance means any "controlled substance" as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.”

Applicant’s possession of marijuana in 2008 and his use of marijuana in 2013 while in possession of security clearance establish the following disqualifying conditions under this guideline:

AG ¶ 25(a): any substance misuse (see above definition);

AG ¶ 25(c): illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and

AG ¶ 25(f): any illegal drug use while granted access to classified information or holding a sensitive position.

The following mitigating conditions under this guideline are established:

AG ¶ 26(a): the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; and

AG ¶ 26(b): the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; and (3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility.

Applicant’s marijuana use in 2013 while holding a security clearance is troubling. However, Applicant has not used marijuana in over four years and acknowledged its incompatibility with his maintenance of a security clearance. He accepted full responsibility for his marijuana use and possession, not only during the hearing but also with respect to his earlier legal consequences. Applicant and his witnesses credibly testified that he has substantially changed the behaviors and circumstances underlying his marijuana use and possession such that I conclude that they are not likely to recur.

Guideline J (Criminal Conduct)

The concern under this guideline is set out in AG ¶ 30: Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules, and regulations.

Applicant’s record of arrests and charges between 2008 and 2015, together with the associated court dispositions, establish the following disqualifying conditions under this guideline:

AG ¶ 31(a): a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness;

AG ¶ 31(b): evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted; and

AG ¶ 31(c): individual is currently on parole or probation.

The following mitigating conditions under this guideline are potentially relevant:

AG ¶ 32(a): so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

AG ¶ 32 (c): no reliable evidence to support that the individual committed the offence; and

AG ¶ 32(d): there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.

AG ¶ 32 (c) is established to fully mitigate the 2015 breach of peace charge. Applicant’s criminal misconduct involving the other five allegations under Guideline J spans a seven-year period. Arguably, one or more of these five incidents would lack security significance if viewed in isolation. However, they collectively establish a pattern of behavior that casts doubt about Applicant’s judgment, reliability, and trustworthiness, and calls into question his ability or willingness to comply with laws, rules, and regulations. Assuming that Applicant completed his probation for his second DUI in July 2017, he remains on probation for his first DUI, which is not scheduled to end until 2019. Based on all the evidence, there has not been a passage of time sufficient to conclude that Applicant’s criminal misconduct will not recur. AG ¶¶ 32(a) and 32(d) are not established. Guideline G (Alcohol Consumption)

The concern under this guideline is set out in AG ¶ 21: 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.

Applicant’s excessive alcohol consumption, resulting in his 2008 and 2015 DUIs, establishes the following disqualifying conditions under this guideline:

AG ¶ 22(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 the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder; and

AG ¶ 22(c): habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder.

Neither of the applicable mitigating conditions under this guideline are established:

AG ¶ 23(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; and

AG ¶ 23(b): the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.

The security significance of Applicant’s dated 2012 DUI is brought current by his recent 2015 DUI. Together they evince a pattern of excessive alcohol consumption that raises questions about Applicant’s good judgment, reliability and trustworthiness. Of particular concern is the fact that he was arrested for his second DUI, within a year of the conviction for his first DUI, and while on probation for his first DUI. Although Applicant and his witnesses credibly testified that he has changed the behaviors underlying his excessive alcohol consumption, it is too soon to tell whether those changes will endure once his IIS is removed and probation terminates. In light of his DUI history, Applicant has not demonstrated a sufficient pattern of modified behavior for me to conclude that the questionable judgment associated with his excessive alcohol consumption is behind him.

WHOLE PERSON CONCEPT

Under AG ¶ 2(c), the ultimate determination of whether the granting or continuing of national security eligibility is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person. An 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.

I have incorporated my comments under Guidelines F, H, J, and G in my whole- person analysis, and I have considered the factors in AG ¶ 2(d). Applicant is devoted to his children and highly regarded by his employer. He was candid, sincere, and contrite at the hearing. Undoubtedly, the stressors of his marriage and finances contributed to the misconduct alleged in the SOR. While Applicant has made significant strides to rehabilitate himself, Applicant has not carried his heavy burden of overcoming his extensive history of questionable judgment.34 After weighing the disqualifying and mitigating conditions under Guidelines F, H, J, and G, and evaluating all the evidence in the context of the whole person, I conclude that Applicant has mitigated the security concerns raised by his drug involvement, but not as to his financial indebtedness, excessive alcohol consumption, and criminal misconduct. Accordingly, Applicant has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT

Subparagraphs 1.a – 1.b: For Applicant

Subparagraphs 1.c – 1.d: Against Applicant

Paragraph 2, Guideline H (Drug Involvement and Substance Misuse): FOR APPLICANT

Subparagraphs 2.a – 2.b: For Applicant

Paragraph 3, Guideline J (Criminal Conduct): AGAINST APPLICANT

Subparagraph 3.a: Against Applicant

Subparagraph 3.b: For Applicant

Subparagraphs 3.c – 3.f: Against Applicant

Paragraph 4, Guideline G (Alcohol Consumption): AGAINST APPLICANT

Subparagraph 4.a: Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national interest to grant Applicant eligibility for access to classified information. Clearance is denied.

Gina L. Marine Administrative Judge

FOOTNOTES

1 On December 10, 2016, the Security Executive Agent issued Directive 4 (SEAD-4), establishing a “single, common adjudicative criteria for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.” (SEAD-4 ¶ B, Purpose). The SEAD-4 became effective on June 8, 2017 (SEAD-4 ¶ F, Effective Date). The National Security Adjudicative Guidelines (AG), which are found at Appendix A to SEAD-4, apply to determine eligibility for initial or continued access to classified national security information. (SEAD-4 ¶ C, Applicability). 2 ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DOD policy and standards). 3 Unless otherwise indicated by citation to another part of the record, I extracted these facts from Applicant’s SOR Answer and his SCA (GE 1). 4 See also Tr. at 29-30, 80-82. 5 GE 3 at 8; GE 4 at 2. 6 Tr. at 68-71; 110-116; 160-162; GE 2 at 9-10; GE 6. 7 Tr. at 68-71; 110-116; 160-162; GE 2 at 9-10; GE 6. 8 Tr. at 116-117. 9 Tr. at 99-101. 10 Tr. at 110. As to any debt not alleged, I will consider it only to evaluate mitigation and whole person. 11 GE 3 at 3-4, and 8; GE 4 at 1-2; GE 2 at 8-9; AE A; Tr. at 56-61, 74-75, and 108-110. 12 Tr. at 74-75; 118-119. 13 Tr. at 102, 105-108, 119-123; GE 4 at 2. 14 See also GE 2 at 4, 5 and 7; GE 7 at 6; Tr. at 75-79, 82-83, 125-135, 157-159. 15 Tr. at 75-79, 82-83, 125-135, 157-159; GE 2 at 7. 16 Tr. at 93-94; 144-145; GE 2 at 4. 17 Tr. at 84, 90-92, 135-138; GE 2 at 6; AE C. 18 GE 2 at 5 and 7; GE 7 at 5; Tr. at 92-93, 141-144. As of the hearing date, the IIS was installed on Applicant’s vehicle. 19 GE 2 at 7-8; Tr. at 84-89; 138-141; GE 8; AE B. 20 Tr. at 89, 94-95, 145-146, 149-158; GE 2 at 7-8. 21 Tr. at 62-68, 72-74, 83, 96-104, 154, 157-158. 22 Tr. at 11-50. 23 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 24 Egan at 527. 25 EO 10865 § 2. 26 EO 10865 § 7. 27 See Egan, 484 U.S. at 531. 28 See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 29 See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). 30 Directive ¶ E3.1.15. 31 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 32 ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 33 Egan, 484 U.S. at 531; See also AG ¶ 2(b). 34 “Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”ISCR Case No. 09-01652 at 3 (App. Bd. Aug 8, 2011), citing Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).