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ISCR Case 16-02040.h1 — CASE

ISCR Case 16-02040.h1denied

Case Headnote

ISCR Case No. 16-02040.h1

deniedAug 30, 2017· Hon. Carol G. Ricciardello· hearing

Summary

A 29-year-old applicant with an associate's degree was denied a security clearance due to concerns under Guideline F (Financial Considerations) and Guideline H (Drug Involvement). The Statement of Reasons cited 14 delinquent medical/healthcare debts, ranging from $52 to $5,387, and totaling approximately $17,452, which began accumulating in 2013. Additionally, the applicant admitted to using controlled substances without a prescription, specifically Valium and Xanax, and used Vicodin at least four times in February 2014, also without a prescription.

The judge determined that the applicant failed to demonstrate responsible behavior in addressing her financial issues. She did not provide evidence of actions taken to resolve her approximately $17,452 in outstanding debts.

Furthermore, the applicant did not provide sufficient evidence of mitigating circumstances regarding her drug use. The judge concluded that the applicant failed to mitigate the security concerns related to both her financial history and her admitted drug involvement, leading to the denial of her security clearance.

Why the Applicant Was Denied

The applicant admitted to using controlled substances without a prescription over several years.
The applicant has unresolved delinquent debts totaling approximately $17,452, which began accumulating in 2013.
The applicant did not provide evidence of actions taken to resolve her debts or mitigate her drug involvement.

Conditions Referenced

Disqualifying

F.1.araisedInability to Satisfy Debts
H.1.araisedAny Substance Misuse

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 issuedAug 1, 2016
Answer filedAug 26, 2016Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decided on the written record.
Decision dateAug 30, 2017

Cite For

Failure to Mitigate Financial Issues Under Guideline F
History of Drug Involvement Without Evidence of Rehabilitation Under Guideline H
Importance of Providing Evidence to Support Claims of Debt Resolution and Substance Use Mitigation.

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 that the applicant failed to mitigate financial concerns under Guideline F, as she had numerous unresolved delinquent debts totaling approximately $17,452. The applicant admitted to the debts but did not provide evidence of any efforts to resolve them, leading to a decision against her on all financial allegations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	14 delinquent medical/health care debts ranging from $52 to $5,387, and totaling approximately $17,452 $17,452	Against Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
2.b–2.o	14 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant			—	—	—

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on allegations of drug involvement, specifically regarding the illegal use of controlled substances. The applicant admitted to using Valium, Xanax, and Vicodin without prescriptions over several years, which raised significant concerns about her reliability and trustworthiness. The judge concluded that the applicant failed to mitigate these concerns, resulting in a denial of her security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant illegally used Valium and Xanax, which are controlled substances and require a prescription.	Against Applicant	Benzodiazepine Misuse	Regular	Admitted	(a) any substance misuse	—	—
1.b	In February 2014, she used Vicodin, another controlled substance, at least four times, without a prescription.	Against Applicant	Prescription Opioid Misuse	Frequent	Admitted	(a) any substance misuse	—	—
1.c	Applicant denied she used an illegal drug. There is no evidence that Applicant used an illegal drug at that time.	For Applicant	Unspecified Drug Involvement	Unspecified	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). 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. 16-02040 ) ) Applicant for Security Clearance

For Government: Chris Morin, Esq., Department Counsel For Applicant: Pro se

08/30/2017 ______________

STATEMENT OF CASE

______________

RICCIARDELLO, Carol G., Administrative Judge:

Applicant failed to mitigate the security concerns under Guideline F, financial considerations, and Guideline H, drug involvement. Eligibility for access to classified information is denied.

Statement of the Case

On August 1, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline F, financial considerations, and Guideline H, drug involvement. The action was taken 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) effective within the DOD on September 1, 2006. On June 8, 2017, new AG were implemented and are effective for decisions issued after that date.1 Applicant answered the SOR on August 26, 2016, and elected to have her case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s file of relevant material (FORM). Applicant received it on October 18, 2016. She was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation within 30 days of receipt of the FORM. The Government’s evidence is identified as Items 1 through 5. Applicant did not provide a response to the FORM, object to the Government’s evidence, or submit documents. The case was assigned to me on August 23, 2017.

FINDINGS OF FACT

Applicant admitted all of the SOR allegations. After a thorough and careful review of the pleadings and exhibits submitted, I make the following findings of fact.

Applicant is 29 years old. She earned an associate’s degree. She is not married and has no children. She has worked for her present employer, a federal contractor, since June 2015, and also has been self-employed from March 2014 to the present.

Applicant admitted that she used the drugs Valium and Xanax, controlled substances, without a prescription on various occasions from January 2010 to April 2015. She admitted she used Vicodin, a controlled substance, without a prescription, at least four times in about February 2014. This drug was prescribed for her father’s use. She admitted she was terminated from employment in September 2012 for violation of the company’s drug policy.2

Applicant used Valium and Xanax when she was under stress due to a death in her family, before giving a speech at school, and for tests and situational anxiety. She used Vicodin after she sustained an injury. She stated her father gave her the drugs. She took it for 36 hours and sought medical help on the third day after her injury.3

In Applicant’s security clearance application (SCA), she stated, “I prefer to employ more holistic methods for test anxiety and general stress management. I have incorporated valerian root into my diet and have received acupuncture treatments in order to manage stress.”4 She intimated that her father gave them to her and she did not question him or solicit them. She did not elaborate. She was an adult, age 22 through 27 years old at the time.5 In her answer to the SOR, Applicant stated, “I do not intend or never intended to take the drug for recreational use. The side effects are often overwhelming and would prefer to not take any opiates unless it was in the case of extreme pain.”6

Applicant was terminated from her employment in 2012 due to a misunderstanding. She did not feel well at work and an ambulance was called. The paramedics asked her if she had taken anything unusual in the past 24 hours. She told them she took “valerian.” Her employer terminated her the next day for violating the company’s drug policy. Applicant explained that “valerian” is a herbal root used to regulate sleep patterns.7 She asked her employer for a drug test, but her request was denied. She stated that her sickness was caused by a reaction to the substance.

The SOR alleges 14 delinquent medical/health care debts ranging from $52 to $5,387, and totaling approximately $17,452 (SOR ¶¶ 1.a through 1.n). They are corroborated by credit reports from October 2015 and June 2015, which show the delinquencies began in 2013. She also has a delinquent debt with a retail store that has a past due balance of $203. In her SCA, Applicant stated that some of her medical debts “were meant to be absorbed by workers comp or insurance.”8 She also stated, “I have not had the opportunity to settle any of the medical debts that I have incurred. Some were erroneously charged to me when other parties held liability.”9 She did not provide corroborating evidence.

Applicant admitted in her answer to the SOR that she owes all the alleged debts and was “researching and engaging a debt consolidation company in the interest of satisfying”10 each debt. She stated regardless of the outcome of the investigation, she will be pursuing the reconciliation of each outstanding debt. Applicant did not provide a response to the FORM or supporting documents to show she has taken action to resolve any of the SOR debts.11

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG 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(c), the entire process is a conscientious scrutiny 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.15 states that 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 as to obtaining 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 as to 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 F: Financial Considerations

The security concern relating to the guideline for financial considerations 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. 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.

AG ¶ 19 provides conditions that could raise security concerns. The following are potentially applicable:

(a) inability to satisfy debts;

(b) unwillingness to satisfy debts regardless of the ability to do so; and

Applicant has unresolved delinquent debts, which began accumulating in 2013. There is sufficient evidence to support the application of the above disqualifying conditions.

The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. The following mitigating conditions under AG ¶ 20 are potentially applicable:

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

(e) the individual has a reasonable basis to dispute the legitimacy of the past-due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue.

Applicant provided no evidence that she has paid, settled, or resolved any of the debts alleged in the SOR. Her financial problems are ongoing, and there is insufficient evidence to conclude that it is unlikely similar circumstances will recur. AG ¶ 20(a) does not apply.

Applicant indicated that she believed some medical debts would be addressed through workers’ compensation or were erroneously charged to her when third parties were responsible. She admitted all of the debts in the SOR and stated that she was working on a debt consolidation plan. She did not provide evidence that her financial problems were the result of conditions beyond her control. She has been employed since 2015. There is insufficient evidence to conclude she has acted responsibly in addressing her delinquent debts. AG ¶ 20(b) does not apply. No evidence was provided that Applicant participated in financial counseling. There is insufficient evidence she has made a good-faith effort to pay or resolve any of the alleged debts or her finances are under control. Although she asserted that some debts should have been paid by other parties, she did not articulate which debts or any action she may have taken to dispute their legitimacy or resolve them. AG ¶¶ 20(c), 20(d), and 20(e) do not apply.

Guideline H: Drug Involvement and Substance Misuse

The security concern relating to the guideline for drug involvement and substance misuse 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.

AG ¶ 25 provides conditions that could raise security concerns. The following is potentially applicable:

(a) any substance misuse. From January 2010 to April 2015, Applicant illegally used Valium and Xanax, which are controlled substances and require a prescription. In February 2014, she used Vicodin, another controlled substance, at least four times, without a prescription. The above disqualifying condition applies.

Applicant admitted she was terminated from employment based on violating her employer’s drug policy. She denied she used an illegal drug. There is no evidence that Applicant used an illegal drug at that time. No disqualifying conditions apply. I find in her favor for SOR ¶ 1.c.

The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. The following mitigating conditions under AG ¶ 26 are potentially applicable:

(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

(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions to overcome the 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 being 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 used prescription drugs, not prescribed to her, on various occasions for five years. She intimated that her father gave them to her. She was an adult at the time she used prescribed controlled substances illegally. There is minimal evidence that she acknowledged her substance abuse. Her repeated claim that she now prefers using herbs, vitamins and relaxation methods to manage her anxiety does not mitigate a long history of substance abuse. The evidence does not establish mitigation under either of the above conditions.

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 have incorporated my comments under Guidelines H and J in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment.

Applicant is 29 years old. For over five years, she used drugs that were not prescribed to her to help manage stress, anxiety, and pain. Applicant expressed a cavalier attitude toward using medications that were not prescribed to her. That is concerning. She is an adult, and if she believes she requires controlled substances to manage issues, she is responsible for seeking professional care. Additionally, Applicant has numerous delinquent debts and stated she was having them consolidated, but provided no evidence that she has done so. Applicant has not demonstrated that she understands the seriousness of her conduct or shown a level of maturity to ensure she is reliable, trustworthy, and exercises good judgment. The record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline H, drug involvement, and Guideline F, financial considerations.

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 H: AGAINST APPLICANT

Subparagraphs 1.a-1.b: Against Applicant Subparagraph 1.c: For Applicant

Paragraph 2, Guideline F: AGAINST APPLICANT

Subparagraphs 2.a-2.o: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Carol G. Ricciardello Administrative Judge

FOOTNOTES

1 I considered the previous AG, effective September 1, 2006, as well as the new AG, effective June 8, 2017. My decision would be the same if the case was considered under the previous AG 2 Items 2, 3. 3 Items 2, 3. 4 Item 3. 5 Item 2. 6 Item 2. 7 http://www.webmd.com/vitamins-supplements/ingredientmono-870-alerian.aspxactiveingredientid=870. 8 Item 3. 9 Item 3. 10 Item 2. 11 Items 2, 3, 4, 5.