CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-02608.h1 — CASE

ISCR Case 16-02608.h1denied

Case Headnote

ISCR Case No. 16-02608.h1

deniedJul 1, 2016· Hon. Francisco Mendez· hearing

Summary

A 32-year-old disabled U.S. military veteran was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from unresolved financial debts and a refusal to submit to a drug screen. The judge determined that the applicant did not provide sufficient evidence to mitigate the security concerns raised by these issues.

Specifically, the applicant faced allegations concerning five judgments for past-due rent totaling approximately $4,000. While some of these were claimed to be settled, no documentation was provided, and no action was taken on others. Additionally, there were seven charged-off or collection accounts totaling about $7,000, plus another unspecified collection account and a disputed $953 debt for past-due car payments.

Further concerns arose from the applicant's refusal to submit to a random drug screen at a former workplace, which questioned his reliability and adherence to regulations. The applicant also made misleading statements regarding his departure from previous employment, which undermined his credibility. Ultimately, the applicant failed to present evidence to address or mitigate these financial issues and personal conduct concerns, leading to the denial.

Why the Applicant Was Denied

The applicant did not present evidence to address or mitigate his financial issues, including five judgments totaling about $4,000 and seven charged-off accounts totaling approximately $7,000.
The applicant refused to submit to a random drug screen, raising questions about his reliability and willingness to comply with rules and regulations.
The applicant made misleading statements regarding the circumstances of his departure from his previous employment, undermining his credibility.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability to Satisfy Debts
AG ¶ 19(b)raisedUnwillingness to Satisfy Debts Regardless of the Ability to Do So
AG ¶ 19(c)raisedA History of Not Meeting Financial Obligations
AG ¶ 16(c)raisedCredible Adverse Information

Key Rule Quoted

“[N]o one has a ‘right’ to a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedOct 14, 2016
Answer filedNov 29, 2016Requested decision on the administrative record.
Hearing held—No hearing; decision based on written record.
Decision dateOct 6, 2017

Cite For

Failure to Mitigate Financial Issues Under Guideline F
Refusal to Comply with Employer-mandated Drug Screening Under Guideline E
Misleading Statements During the Security Clearance Process Affecting Credibility

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 against the applicant on the personal conduct allegations, specifically regarding his refusal to submit to a drug screen and the misleading statements made during the security clearance process. The applicant's actions raised significant concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant refused to submit to a random drug screen at his former place of employment, which raises questions about his reliability and willingness to follow rules and regulations.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	—	Denied	—	—	—

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's financial situation raised significant security concerns, primarily due to a history of unpaid debts and judgments. The applicant failed to provide sufficient evidence to mitigate these concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Five judgments were issued against Applicant for past-due rent totaling about $4,000. $4,000	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.b	Judgment for past-due rent, claimed to be settled and paid, but no documentation provided.	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.c	Judgment for past-due rent, no action taken to address it.	Against Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.d	Judgment for past-due rent, claimed to be settled and paid, but no documentation provided.	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.e	Judgment for past-due rent, no action taken to address it.	Against Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.f	Seven charged off or collection accounts totaling approximately $7,000. $7,000	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.g	Charged off or collection account, amount unspecified.	Against Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.h	$953 debt for past-due payments on his car, claimed to be disputed. $953	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.i–1.l	4 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.

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. 16-02608 ) ) Applicant for Security Clearance

For Government: Bryan J. Olmos, Esq., Department Counsel For Applicant: Pro se

10/06/2017 ______________

STATEMENT OF CASE

______________

MENDEZ, Francisco, Administrative Judge:

Applicant did not present sufficient evidence to mitigate security concerns raised by his financial situation and refusal to take a drug screen. Clearance is denied.

Statement of the Case

On October 14, 2016, the Department of Defense (DoD) issued a Statement of Reasons (SOR) alleging security concerns under the financial considerations and personal conduct guidelines. On November 29, 2016, Applicant answered the SOR (Answer) and requested a decision on the administrative (written) record.

On December 21, 2016, Department Counsel sent Applicant the Government’s written case, known as a file of relevant material (FORM). With the FORM, Department Counsel forwarded to Applicant seven exhibits (Items 1 – 7) that the Government offers for admission into the record. Applicant received the FORM and accompanying exhibits on February 3, 2017 (Appellate Exhibit I). He was given 30 days to submit a response. He elected not to submit a response or offer any evidence in support of his case. He also did not object to the evidence submitted by the Government. Accordingly, without objection, Items 1 – 7 are admitted into the record. On October 1, 2017, after receiving confirmation that Applicant remained sponsored for a security clearance, I was assigned his case for decision. No additional matters were submitted by either party for inclusion in the record.

FINDINGS OF FACT

Applicant, 32, is a disabled U.S. military veteran, having served in the military from 2003 to 2009. His military service included an overseas assignment as part of a unit operating a missile defense system. He was first granted a security clearance while in the military.

Applicant has had financial problems dating back to 2010, when he was evicted from his former apartment for failing to pay his rent. He was evicted from another apartment in 2014 for also failing to pay his rent. From 2010 to 2014, five judgments were issued against Applicant for past-due rent. These five judgments total about $4,000, and are referenced at SOR 1.a – 1.e. Applicant denies two of the judgments (1.band 1.d), claiming they were settled and paid; but provided no documentation to substantiate his claims. As to the other three judgments (1.a, 1.c, and 1.e), Applicant has yet to take action to address them or failed to submit evidence documenting such action.

In addition to the five judgments, Applicant’s credit reports and SOR also reflect seven charged off or collection accounts totaling approximately $7,000. Applicant admits these SOR debts, except the $953 debt for past-due payments on his car referenced in 1.h. He has yet to take action to address the six admitted (non-judgment) SOR debts and failed to submit evidence substantiating his claims regarding the car debt.

In approximately June 2015, Applicant refused to submit to a random drug screen at his former place of employment. He was advised by his former employer of the potential adverse consequences if he refused to submit to the drug screen. Instead of submitting to the drug screen, Applicant decided to quit. He explained in his Answer and during a May 2016 security clearance interview that he refused to submit to the drug screen as a matter of principle. He went on to state that he felt his former employer was targeting him and several others after another coworker was involved in a serious motor vehicle accident involving a company truck. He denies he was using any illicit drugs or substances at the time.

After refusing to take the drug screen, Applicant was out of work for about three months. He was then hired by his current employer, a large well-known company that regularly serves as a defense contractor. In October 2015, in connection with this new job, Applicant filled out and submitted a security clearance application. In explaining why he left his last job, Applicant stated: “to be closer to my family.”1 He was asked about this response during his May 2016 security clearance interview and reaffirmed his response to the investigator. After being confronted by the investigator with the information that the Office of Personnel Management had received from his former employer, Applicant admitted that he left his former job under adverse circumstances, namely, his refusal to submit to a random drug screen.2

Law, Policies, and Regulations

This case is decided under Executive Order (E.O.) 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 on June 8, 2017, through Security Executive Agent Directive 4 (SEAD-4). 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

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Instead, persons are only eligible for access to classified information “upon a finding that it is clearly consistent with the national interest” to authorize such access. E.O. 10865 § 2.

When evaluating an applicant’s eligibility for a security clearance, an administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations, the guidelines list potentially disqualifying and mitigating conditions. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies the guidelines in a commonsense manner, considering all available and reliable information, in arriving at a fair and impartial decision. AG ¶ 2.

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

Administrative Judges must remain fair and impartial, and carefully balance the needs for the expedient resolution of a case with the demands of due process. Therefore, an administrative judge will ensure that an applicant: (a) receives fair notice of the issues, (b) has a reasonable opportunity to address those issues, and (c) is not subjected to unfair surprise. Directive, ¶ E3.1.10; ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014).

In evaluating the evidence, a judge applies a “substantial evidence” standard, which is something less than a preponderance of the evidence. Specifically, substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive, ¶ E3.1.32.1.4

Any doubt raised by the evidence must be resolved by a judge in favor of the national security. AG ¶ 2(b). See also SEAD-4, ¶ E.4. Additionally, the Supreme Court has held that responsible officials making “security clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

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. 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 an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

ANALYSIS

Guideline F (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. . . .5

Guideline F is not limited to a consideration of whether a person with financial issues might be tempted to compromise classified information or engage in other illegality to pay their debts. It also addresses the extent to which the circumstances giving rise to delinquent debt cast doubt upon a person’s judgment, self-control, and other qualities essential to protecting classified information.6

In assessing Applicant’s case, I considered all the disqualifying and mitigating conditions under Guideline F, including the following:

AG ¶ 19(a): inability to satisfy debts; AG ¶ 19(b): unwillingness to satisfy debts regardless of the ability to do so;

AG ¶ 19(c): a history of not meeting financial obligations;

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 . . . and the individual acted responsibly under the circumstances;

AG ¶ 20(c): the individual has received or is receiving financial counseling for the problem . . . 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.

Even if I were to set aside the SOR debts that Applicant denies, the record evidence is sufficient to establish the disqualifying conditions at AG ¶¶ 19(a) – 19(c). Applicant did not present any evidence showing that he has taken any action to address the delinquent debts he has incurred since 2010, including the three judgments referenced at SOR 1.a, 1.c, and 1.e. He also did not provide any information showing that he has received financial or debt counseling. In short, Applicant failed to show that his financial situation is under control. None of the mitigating conditions apply.

Individuals applying for a security clearance are not required to be debt free. They are also not required to resolve all past-due debts simultaneously or even resolve the delinquent debts listed in the SOR first. However, they are expected to present evidence to refute, explain, or mitigate security concerns raised by their circumstances, to include the accumulation of delinquent debt. Moreover, they bear the burden of showing that they manage their finances in a manner expected of those granted access to classified information.7 Applicant failed to meet his burden of proof and persuasion. His financial situation remains a security concern.

Guideline E, Personal Conduct

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.8

In assessing Applicant’s case, I have considered all the disqualifying and mitigating conditions under Guideline E, including the following:

AG ¶ 16(c): credible adverse information . . . that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information; and

AG ¶ 17(c): the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

Applicant’s refusal to submit to an employer-mandated drug screen raises serious questions about his suitability for a security clearance, as it calls into question his reliability and willingness to follow rules and regulations. His attempt to then mislead the Government about the circumstances that led him to leave the job undercuts the mitigating value of the passage of time since the incident occurred. The disqualifying condition listed at AG ¶16(c) applies. None of the Guideline E mitigating conditions apply.

Additionally, Applicant’s failure to submit to a random drug screen is not minor in the security clearance context. Many persons, including all military members, agree to submit to such drug screens. Furthermore, a prerequisite for access to classified information and employment by large federal contractors, including Applicant’s current employer, is an agreement by their employees not to use illegal drugs and to submit to random drug screens to ensure compliance with that requirement.9 The misleading statement Applicant made in the security clearance application about the reason he left his last job – an application that he submitted through his employer after three months of unemployment – was not by accident or a mistake. It was a deliberate misstatement intended to secure a job. Applicant’s refusal to submit to a drug screen remains a security concern.

WHOLE PERSON CONCEPT

Security clearance assessments about a person require a judge to closely examine the individual’s conduct and circumstances, both past and present. In making such assessments, an administrative judge must consider the adjudicative guidelines and the whole-person concept.10 I hereby incorporate my above analysis and highlight some additional whole-person factors.

Applicant served in the U.S. military and is a disabled veteran. He was first granted a security clearance while in the military. These factors raise favorable inferences regarding his eligibility for continued access to classified information. However, this favorable evidence is insufficient to mitigate the security concerns at issue. Applicant failed to submit any evidence showing that he has responsibly addressed his financial situation and taken control of his finances. His long history of failing to meet his lawful financial obligations raises unmitigated concerns about his ability to meet his security obligations. More importantly, Applicant’s failure to submit to an employer-mandated drug screen and the deliberate misstatements he made during the course of the security clearance process about the reason he left his former job raise serious questions about his suitability for a security clearance. Overall, the record evidence leaves me with doubts about Applicant’s eligibility for continued access to classified information.11

FORMAL FINDINGS

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

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

Subparagraphs 1.a – 1.l: Against Applicant

Paragraph 2, Guideline E (Personal Conduct): AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

CONCLUSION

In light of the record evidence, it is not clearly consistent with the interests of national security to continue Applicant’s access to classified information. Applicant’s request for a security clearance is denied.

____________________ Francisco Mendez Administrative Judge

FOOTNOTES

1 Exhibit 1 at 17. 2 Applicant’s misleading statements on his security clearance application and to the investigator were not alleged, and were only considered in assessing mitigation. See infra n. 4.

3 Nonetheless, I have considered the previous version of the adjudicative guidelines that were in effect at the time the SOR was issued and my ultimate decision in this case would have been the same. 4 However, a judge’s mere disbelief of an applicant’s testimony, without actual evidence of disqualifying conduct or admission by an applicant to the disqualifying conduct, is not enough to sustain an unfavorable finding. ISCR Case No. 15-05565 (App. Bd. Aug. 2, 2017); ISCR Case No. 02-24452 (App. Bd. Aug. 4, 2004). Furthermore, an unfavorable decision cannot be based on solely non-alleged conduct. ISCR Case No. 14-05986 (App. Bd. May 26, 2017). Likewise, a judge can only use non-alleged conduct for specific limited purposes, such as, assessing mitigation and credibility, unless an applicant is placed on notice that such conduct also raises a security concern. ISCR Case No. 16-02877 at 3 (App. Bd. Oct. 2, 2017).

5 AG ¶ 18.

6 ISCR Case No. 11-05365 at 3 (App. Bd. May. 1, 2012). 7 ISCR Case 07-10310 at 2 (App. Bd. Jul. 30, 2008). See also ISCR Case No. 15-02585 (App. Bd. Dec. 20, 2016) (reasonable for judge to expect an applicant to present documentary evidence). Contrast with ISCR Case No. 15-05478 (App. Bd. Oct. 2, 2017) (error for judge to accept applicant’s self-serving assertions that he had resolved financial issues without corroborating documentary evidence). 8 AG ¶ 15.

9 ISCR Case No. 16-00578 at 2 (App. Bd. Sep. 26, 2017) (judge may properly consider that large defense contractors, such as Applicant’s current employer, generally have a drug-free workplace policy). 10 See generally AG ¶ 2. See also SEAD-4, ¶ E.4; Directive, ¶ 6.3.

11 I considered the exceptions listed in SEAD-4, Appendix C. See SEAD-4, ¶ E.3 and AG ¶ 2(h).In light of the serious security concerns raised by the evidence, none of the exceptions are warranted.