CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-04018.h1 — CASE

ISCR Case 09-04018.h1denied

Case Headnote

ISCR Case No. 09-04018.h1

deniedSep 8, 2010· Hon. Matthew E. Malone· hearing

Summary

A 31-year-old defense contractor employee was denied a security clearance due to concerns under Guideline F (Financial Considerations) and Guideline H (Drug Involvement). The applicant had a history of marijuana use, occurring with varying frequency between December 2002 and June 2006, and at least once in August 2008.

Financially, the applicant owed approximately $22,010 across eight unpaid debts, including an unpaid civil judgment and an unpaid cable television account totaling about $733. One debt had been charged off, and two debts were more than 120 days past due. While an $89 medical bill was paid, and one debt had been under a repayment agreement since April 2007, an unpaid retail account opened in April 2002 was closed for non-payment in May 2007.

Despite some mitigating factors related to her drug use, the applicant's ongoing financial mismanagement and failure to present a clear plan for resolving her significant debts ultimately led to the denial of her security clearance.

Why the Applicant Was Denied

The applicant had a history of marijuana use from 2002 to 2006 and again in August 2008, raising security concerns under Guideline H.
The applicant owed approximately $22,010 in unpaid debts, with several debts being significantly overdue and some in collection, raising concerns under Guideline F.
The applicant failed to demonstrate sufficient progress in managing her financial obligations or a plan to resolve her debts.

Conditions Referenced

Disqualifying

AG ¶ 19(a)appliedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)appliedA History of Not Meeting Financial Obligations

Mitigating

AG ¶ 26(a)appliedThe 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
AG ¶ 20(d)appliedThe Individual Initiated a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve Debts

Key Rule Quoted

“The end result is that she may now be at risk of engaging in illegal acts to obtain funds to pay her debts, and her overall judgment remains in question.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedOct 29, 2009
Answer filed—
Hearing heldMay 19, 2010
Decision dateSep 8, 2010

Cite For

Denial Based on Financial Mismanagement Under Guideline F
Mitigating Factors for Past Drug Use Under Guideline H
Importance of Demonstrating Financial Stability for Security Clearance Eligibility

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 had significant financial issues, including multiple unpaid debts totaling over $22,000. While some debts were resolved, the applicant failed to demonstrate a sufficient plan or means to address her remaining financial obligations, leading to a denial of her security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	Applicant owes about $22,010 for eight unpaid debts. $22,010	Against Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.b	Applicant is liable for an unpaid civil judgment.	For Applicant	Unspecified Financial	Denied	—	—	—
2.c	Applicant paid the delinquent $89 medical bill. $89	For Applicant	Medical Debt	Denied	—	—	—
2.d	Applicant is liable for an unpaid cable television account totaling about $733. $733	Against Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.e	One debt has been charged off as a business loss by the creditor.	Against Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.f	Two debts are more than 120 days past due.	Against Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.g	Applicant has been repaying the debt through an agreement with the creditor since April 2007.	For Applicant	Unspecified Financial	Denied	—	—	—
2.h	An unpaid retail account was opened in April 2002 but was closed for non-payment in May 2007. $806	Against Applicant	Unspecified Financial	Unknown	(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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant used marijuana up to five times monthly from December 2002 to June 2006 and once in August 2008. Although the applicant admitted to this drug use, the judge concluded that the security concerns raised by this past drug involvement were mitigated due to the time elapsed and the applicant's changed circumstances. Therefore, the formal finding for this allegation was for the applicant.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	used marijuana with varying frequency (up to five times monthly) between December 2002 and June 2006, and at least once in August 2008	For Applicant	Marijuana	Frequent	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—

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: ) ) --------------------------- ) SSN: ------------------- ) ISCR Case No. 09-04018 ) ) Applicant for Security Clearance )

For Government: Richard A. Stevens, Esquire, Department Counsel For Applicant: Pro se

September 8, 2010 ______________

STATEMENT OF CASE

______________

MALONE, Matthew E., Administrative Judge:

Based upon a review of the pleadings, exhibits, and transcript, Applicant’s request for a security clearance is denied.

On February 18, 2009, Applicant submitted a Questionnaire for Sensitive Positions (SF 86) to obtain a security clearance required for her job with a defense contractor. After reviewing the results of the ensuing background investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA) issued to Applicant a set of interrogatories to clarify or augment potentially disqualifying information in her background. After reviewing the results of the background investigation and Applicant’s responses to the interrogatories, DOHA adjudicators were unable to make a preliminary affirmative finding that it is clearly consistent with the national interest to grant Applicant’s request for access to classified information. On October 29, 2009, DOHA issued to Applicant a Statement of Reasons (SOR) alleging facts which, if proven, raise security concerns addressed in the adjudicative guidelines (AG) for illegal drugs (Guideline H) and financial considerations (Guideline F).

Applicant timely answered the SOR and requested a hearing. The case was assigned to me on April 20, 2010. Pursuant to a Notice of Hearing issued on April 22, 2010, I convened a hearing on May 19, 2010. The Government presented four exhibits that were admitted without objection as Government’s Exhibits (Gx.) 1 - 4. Applicant testified on her own behalf, and submitted one exhibit that was admitted without objection as Applicant’s Exhibit (Ax.) A. Additionally, I left the record open after the hearing to give Applicant time to submit additional relevant information. DOHA received a transcript (Tr.) of the hearing on May 26, 2010, and the record closed on June 4, 2010, after the Applicant failed to make a post-hearing submission.

FINDINGS OF FACT

Under Guideline H, the Government alleged that Applicant used marijuana with varying frequency (up to five times monthly) between December 2002 and June 2006, and at least once in August 2008 (SOR 1.a). Applicant admitted this allegation, but averred she has not used any illegal drugs since August 2008.

Under Guideline F, the Government alleged she owed about $22,010 for eight unpaid debts (SOR 2.a - 2.h). Of those debts, two were more than 120 days past due (SOR 2.fand 2.h); one had been charged off as a business loss by the creditor (SOR 2.e); three had been referred to a collection agency (SOR 2.c, 2.d, 2.g); and two were being enforced through civil judgments (SOR 2.a and 2.b). Applicant denied the allegation at SOR 2.b, claiming it was a duplicate of the debt listed at SOR 2.a. She denied the allegation at SOR 2.c, claiming she had paid the debt in full in March 2010. Applicant also denied the allegation at SOR 2.g. She claimed that she has been repaying the debt through an agreement she reached with the creditor in April 2007. Applicant admitted the remaining allegations under Guideline F.

Applicant’s admissions are incorporated in my findings of fact. Having reviewed Applicant’s response to the SOR, the transcript, and exhibits, I make the following additional findings of relevant fact.

Applicant is 31 years old, and she has worked for her current employer, a defense contractor, since January 2009. Her supervisors submitted written recommendations attesting to Applicant’s value to their company, her strong work ethic, her honesty, and her reliability. They also recommended her for a position of trust that would include access to classified information. (Ax. A)

From May 2005 until January 2009, Applicant worked as a sales associate and accounts receivable manager for a national mobile phone company. Prior to May 2005, she worked as a server in a restaurant. When Applicant submitted her SF 86, she disclosed that she had financial problems in the form of several delinquent debts. She also disclosed that she had used marijuana frequently between 2002 and 2006, and a one-time use of that drug with a friend at a party in August 2008. (Gx. 1)

As to her drug use, Applicant used marijuana between 2002 and 2006 as often as five times monthly. There were also long periods when she did not use the drug at all. She never bought or sold marijuana, but she had access to it through her friends. She usually smoked marijuana with her co-workers at the restaurant. She also used marijuana with a boyfriend, with whom she lived until they broke up in 2004. She no longer associates with any of her former co-workers or her ex-boyfriend. (Gx. 2; Tr. 23, 28 - 29, 46)

Applicant did not use marijuana between 2006 and August 2008, when she and a longtime friend were at a party. They both had been drinking and took a few puffs of marijuana when it was offered to them. Applicant and her friend have known each other for 20 years, and Applicant will be a participant at her friend’s wedding. However, she has never known her friend to use drugs before or after the party in August 2008. (Gx. 2; Tr. 47 - 48)

Applicant’s financial problems arose through her own inexperience in managing her personal finances. The debts alleged at SOR 2.a, 2.e, and 2.gare for delinquent bank-sponsored credit card accounts totaling about $14,400. The accounts were opened between 2000 and 2006, when Applicant was primarily employed as a restaurant server. (Gx. 3; Gx. 4) The amounts owed represent the maximum credit limit for each account plus accrued interest and fees after the accounts became delinquent. (Tr. 40 - 41) By agreement with the creditor in SOR 2.g, Applicant has been paying $25 monthly for that debt since April 2007, and she has reduced the amount owed by about $800. (Answer to SOR; Tr. 25, 42, 54 - 55)

Applicant also owes $103 for an unpaid retail store account she opened in 1997, but for which she stopped paying in 2003. Another retail account, alleged in SOR 2.hfor $806, was opened in April 2002 but was closed for non-payment in May 2007. Applicant has not made any payments on these debts. (Gx. 3; Tr. 42)

As alleged in SOR 2.d, Applicant is liable for an unpaid cable television account totaling about $733. The account was in her name, but Applicant testified that this debt stemmed from the fact her ex-boyfriend has a converter box that was supposed to be returned when they moved out of their apartment in 2004. (Tr. 39 - 40) However, available information also shows that the account was two months behind when they ended service because she could not afford to pay the monthly bill. (Gx. 2; Ax. A) In April 2010, Applicant paid the delinquent $89 medical bill alleged in SOR 2.c. The debt alleged at SOR 2.bis a duplicate of the debt alleged in SOR 2.a, which is being enforced through civil judgment. (Answer to SOR; Gx. 2; Ax. A; Tr. 13, 25) Accordingly, the debts alleged at SOR 2.band 2.care resolved for the Applicant.

In addition to the delinquent debts alleged in the SOR, available information shows that Applicant has accrued other unpaid or past due debts. In 2004, she settled a delinquent credit card for less than the amount owed. She also resolved a car loan payment delinquency in May 2007. (Ax. A; Gx. 3)

Applicant is current on her present financial obligations. She makes about $35,000 annually and has not incurred new debt which she cannot pay. However, Applicant admitted that she lives paycheck to paycheck, with about $150 remaining each month after expenses. Further, aside from the $25 monthly payment on the debt at SOR 2.g, Applicant is not making any payments on her past delinquencies. She has not established a budget and has not sought the assistance of a financial counselor. Applicant also testified that she has tried to work with her creditors but has received little cooperation from them. (Tr. 25 - 27, 51)

POLICIES

A security clearance decision is intended to resolve whether it is clearly consistent with the national interest for an applicant to either receive or continue to have access to classified information. Each decision must be a fair, impartial, and commonsense determination based on examination of all available relevant and material information, and consideration of the pertinent criteria and adjudication policies in the adjudicative guidelines. Decisions must also reflect consideration of the factors listed in ¶ 2(a) of the new guidelines. Commonly referred to as the “whole-person” concept, those factors are:

(1) The nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the 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.

The presence or absence of a disqualifying or mitigating condition is not, by itself, conclusive. However, specific applicable guidelines should be followed whenever a case can be measured against them as they represent policy guidance governing the grant or denial of access to classified information. The Government bears the initial burden of producing admissible information on which it based the preliminary decision to deny or revoke a security clearance for an applicant. Additionally, the Government must be able to prove controverted facts alleged in the SOR. If the Government meets its burden, it then falls to the applicant to refute, extenuate, or mitigate the Government’s case. Because no one has a “right” to a security clearance, an applicant bears a heavy burden of persuasion. A person who has access to classified information enters into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of one who will protect the national interests as his or her own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government.8

ANALYSIS

Drug Involvement

The Government presented sufficient information to support the allegation in SOR 1.a that Applicant used marijuana from December 2002 until June 2006, and again on one occasion in August 2008. Accordingly, the government’s information raises a security concern addressed in AG ¶ 24 as follows:

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.

(a) Drugs are defined as mood and behavior altering substances, and include:

(1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances;

(b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

More specifically, available information requires application of the disqualifying conditions listed at AG ¶ 25(a) (any drug abuse (see definition (at AG ¶ 25(a))). By contrast, available information shows that Applicant last used marijuana on a regular basis more than four years ago. While her most recent use occurred about two years ago, it appears to have been an aberration, given the overall change in Applicant’s personal and professional circumstances since 2005. Applicant no longer associates with the people with whom she used marijuana until 2006. Even though she remains close friends with the person with whom she last used marijuana, it appears highly unlikely that Applicant or her friend will use illegal drugs in the future. The foregoing requires application of the mitigating conditions listed at 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) (a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation). I have considered all of the information bearing on the allegations under this guideline, and I conclude Applicant has mitigated the security concerns raised by Applicant’s past drug involvement.

Financial

The security concern about Applicant’s finances, as stated in AG ¶ 18, is that:

Failure or inability 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 information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.

The Government presented sufficient information to support the allegations in SOR ¶ 2.a - 2.h; that is, that Applicant owed at least $22,000 for eight delinquent debts. Available information showed that Applicant has a history of unpaid debts since at least 2001. Even though the debt at SOR 2.bwas shown to be a duplicate of the debt at SOR 2.a, and the debt at SOR 2.chas been paid, Applicant still owes a significant amount of unpaid debt. She has not demonstrated that she has the means or a plan to satisfy her debts. Thus, the record requires application of the disqualifying conditions listed at AG ¶ 19(a) (inability or unwillingness to satisfy debts) and AG ¶ 19(c) (a history of not meeting financial obligations).

By contrast, Applicant established that she is managing her finances in a more prudent way now, and that she has been paying one of her large debts at a modest monthly rate since 2007. However, she has not demonstrated that her finances have improved so that she would be able to avoid future delinquencies. She has very little cash remaining each month after expenses and does not have the means to make any tangible progress on the remaining $15,000 in unpaid debts. Applicant’s actions in paying down the debts at SOR 2.cand 2.g, as well as paying or settling other debts not alleged in the SOR, entitle her to some benefit under the mitigating condition at AG ¶ 20(d) (the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts). However, she did not present sufficient information to support any of the remaining Guideline F mitigating conditions. Applicant has failed to mitigate the security concerns about her finances.

WHOLE PERSON CONCEPT

I have evaluated the facts presented and have applied the appropriate adjudicative factors under Guidelines F and H. I have also reviewed the record before me in the context of the whole-person factors listed in AG ¶ 2(a). Applicant is 31 years old and is presumed to be a mature, responsible adult. In a relatively short time, she has established a sound reputation at work, and she conveyed a sincere appreciation for the gravity of her past drug use and her ongoing financial difficulties. At each stage of her background investigation and in the adjudication of this case, she was candid and forthright about adverse information in her background. However, while the security concerns about her past drug use are mitigated, the favorable information in her background is insufficient to overcome the continued security concerns about her finances. Applicant’s financial problems arose through her own mismanagement and poor decision making about her money. She relied excessively on personal credit, which she is still unable to pay or otherwise resolve. The end result is that she may now be at risk of engaging in illegal acts to obtain funds to pay her debts, and her overall judgment remains in question. Applicant was sincere in her testimony that she intended to resolve her debts, but she has not yet shown how she will do so. Unless and until she can better demonstrate progress in resolving her debts, doubts will remain about her suitability for access to classified information. Because protection of the national interest is paramount in these determinations, such doubts must be resolved in favor of the Government.

FORMAL FINDINGS

Formal findings 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: FOR APPLICANT

Subparagraph 1.a: For Applicant

Paragraph 2, Guideline F: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Subparagraphs 2.b - 2.c: For Applicant

Subparagraphs 2.d - 2.h: Against Applicant

CONCLUSION

In light of all of the foregoing, it is not clearly consistent with the national interest to grant or continue Applicant’s access to classified information. Request for security clearance is denied.

MATTHEW E. MALONE Administrative Judge

FOOTNOTES

Authorized by DoD Directive 5220.6 (Directive), Section E3.1.2.2. Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended. The adjudicative guidelines were implemented by the Department of Defense on September 1, 2006. These guidelines were published in the Federal Register and codified through 32 C.F.R. § 154, Appendix H (2006). Pending official revision of the Directive, they take precedence over the guidelines listed in Enclosure 2 to the Directive. As identified in the transcript of the hearing at pages 20 - 22, Ax. A consists of six separate documents. See Department of the Navy v. Egan, 484 U.S. 518 (1988). Directive. 6.3. See Egan, 484 U.S. at 528, 531. See Egan; Revised Adjudicative Guidelines, ¶ 2(b). See footnote 8, supra.