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ISCR Case 15-00751.h1 — CASE

ISCR Case 15-00751.h1granted

Case Headnote

ISCR Case No. 15-00751.h1

grantedDec 2, 2016· Hon. Marc E. Curry· hearing

Summary

A 61-year-old veteran and systems analyst was granted a security clearance despite concerns under Guideline F (Financial Considerations) and Guideline H (Drug Involvement). The Statement of Reasons cited two delinquent student loans, one totaling approximately $51,000 as of August 2015, and another totaling approximately $62,000 as of October 2015. Additionally, the applicant's one-time marijuana use in 2013 while holding a security clearance raised concerns under Guideline H.

The judge determined that the applicant had mitigated these concerns. Regarding the financial issues, the applicant took proactive steps to resolve the delinquent student loans after discovering them, demonstrating financial stability and compliance with payment plans. For the drug involvement, the applicant's marijuana use was infrequent and occurred under extenuating circumstances, making recurrence unlikely.

Based on these mitigating actions, the judge found that the applicant had successfully addressed the security concerns. Consequently, the security clearance was granted.

Why the Applicant Prevailed

The applicant took proactive steps to resolve delinquent student loans after discovering them.
The applicant's one-time marijuana use was infrequent and occurred under extenuating circumstances.
The applicant demonstrated financial stability and compliance with payment plans.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)raisedA History of Not Meeting Financial Obligations
AG ¶ 24(a)raisedAny Drug Abuse
AG ¶ 24(c)raisedIllegal Drug Possession
AG ¶ 24(g)raisedAny Illegal Drug Use After Being Granted a Security Clearance

Mitigating

AG ¶ 20(b)appliedConditions Largely Beyond the Person's Control
AG ¶ 20(c)appliedReceiving Counseling for the Problem
AG ¶ 20(d)appliedGood-faith Effort to Repay Overdue Creditors
AG ¶ 26(a)appliedInfrequent Drug Use Unlikely to Recur

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedAug 19, 2015
Answer filedSep 30, 2015
Hearing heldOct 5, 2016
Decision dateDec 2, 2016

Cite For

Mitigation of Financial Concerns Due to Proactive Debt Resolution Efforts
One-time Drug Use Under Extenuating Circumstances as a Mitigating Factor
Whole-person Concept Applied in Evaluating 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: granted

The judge found that the applicant had two student loans for which he was jointly liable as a cosigner. Although these loans became delinquent due to circumstances beyond his control, the applicant took significant steps to resolve the debts, including making substantial payments and entering into rehabilitation agreements, leading to a decision to grant his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	The student loan alleged in subparagraph 1.a, and duplicated in subparagraph 1.c, totalled approximately $51,000 as of August 2015, the month of the SOR’s issuance. $51,000	For Applicant	Student Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(b) conditions largely beyond the person’s control; acted responsibly (c) received/receiving counseling; problem being resolved (d) good-faith effort to repay or otherwise resolve debts	Documented Debt Paid in Full Documented Payment Plan with Creditor Claimed Other
1.b	As of October 2015, the debt alleged in subparagraph 1.b totalled approximately $62,000. $62,000	For Applicant	Student Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(b) conditions largely beyond the person’s control; acted responsibly (c) received/receiving counseling; problem being resolved (d) good-faith effort to repay or otherwise resolve debts	Documented Debt Paid in Full Documented Payment Plan with Creditor Claimed Other
1.c	specific text not stated in this decision	For Applicant	Unspecified Financial	Unknown	—	—	—

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: granted

The judge found that the applicant's one-time use of marijuana in 2013 did not raise significant concerns regarding his reliability or trustworthiness. The applicant's circumstances surrounding the use, including its infrequency and the context of seeking relief for severe pain, were considered mitigating factors. Ultimately, the judge concluded that the applicant had mitigated the drug involvement security concern, resulting in a granted security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	Applicant’s use of marijuana in 2013 while in possession of a security clearance triggers the application of AG ¶¶ 24(a), “any drug abuse,” 24(c), “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;” and 24(g), “any illegal drug use after being granted a security clearance.	For Applicant	MarijuanaWHILE CLEARED	Not Applicable	Unknown	—	(a) behavior happened long ago / infrequent / unlikely to recur	—

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. 15-00751 ) Applicant for Security Clearance )

For Government: Candace Le’i Garcia, Esq., Department Counsel For Applicant: Kel McClanahan, Esq.

12/02/2016 ______________

STATEMENT OF CASE

______________

CURRY, Marc E., Administrative Judge:

Because Applicant did not know his son’s whereabouts for several years, he did not know that the student loans, of which he was jointly liable as cosigner, were delinquent. Upon discovering the delinquencies, he contacted the creditors and began resolving them. Currently, neither debt is in delinquent status. Applicant mitigated the financial considerations security concern. Given the infrequency and surrounding circumstances of Applicant’s one-time marijuana use, I conclude that he has mitigated the drug involvement security concern. Clearance is granted.

Statement of the Case

On August 19, 2015, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline F, financial considerations, and Guideline H, drug involvement. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. On September 30, 2015, Applicant answered the SOR, admitting all of the allegations except subparagraph 1.c. He requested a hearing, whereupon the case was assigned to me on August 11, 2016. DOHA issued a notice of hearing on August 24, 2016, scheduling the hearing for October 5, 2016. The hearing was held as scheduled. At the hearing, I considered Applicant’s testimony, and I received four Government exhibits (Government Exhibit (GE) 1 - GE 4), and 11 Applicant exhibits (Applicant Exhibit (AE) A - K). At the close of the hearing, I left the record open, at Applicant’s counsel’s request, to allow Applicant the opportunity to submit additional exhibits. Within the time allotted, he submitted two exhibits (AE L, AE M) that I incorporated into the record without objection. DOHA received the transcript (Tr.) on October 12, 2016.

FINDINGS OF FACT

Applicant is a 61-year-old married man with three children, two of whom are adults. He is a veteran of the United States Army, serving honorably from 1973 through his retirement in 1997. He held a security clearance for his entire Army career. He has earned two years of college credits. For the past seven years, he has worked for a contractor as a systems analyst. (Tr. 16) He has maintained his current clearance since 2008. (Tr. 16)

In the late 2000s, Applicant cosigned two student loans to help finance his son’s college education (SOR subparagraph 1.a, as duplicated in subparagraph 1.c; and subparagraph 1.b). (Tr. 17) His son was a “high-caliber student” who entered college as an engineering major and ultimately graduated with an economics degree. (Tr. 18) While in college, Applicant suffered a mental breakdown, experiencing unusual changes in his behavior and his mood. (Tr. 39) Although he managed to earn his degree by 2013, his mental stability continued to deteriorate after graduation, and “he sort of started drifting away,” moving from state to state, and later, country to country. (Tr. 40)

Unbeknownst to Applicant, his son was not paying his student loans. (Answer at 2) Although lenders mailed notices to Applicant, he did not receive them because he moved at or about the time that loan payments became due. (Answer at 2; Tr. 43-44) Applicant discovered that the student loans were delinquent in November 2015. On November 30, 2015, Applicant sought help from a non-profit company that provides financial assistance to veterans. (AE J; Tr. 32) They audited his finances, helped him identify the current student loan holders, and helped him develop payment plans. (AE J at 2)

The student loan alleged in subparagraph 1.a, and duplicated in subparagraph 1.c, totalled approximately $51,000 as of August 2015, the month of the SOR’s issuance. (Answer at 1) Applicant made an $11,339 payment in February 2016, and then a second payment, in October 2016, of $2,500. (AE E at 9; AE G) Later that month, he negotiated a rehabilitation agreement under which he was to pay $5 per month for nine months. (AE F) As of October 2015, the debt alleged in subparagraph 1.btotalled approximately $62,000. (AE C) At or about that time, Applicant reached an agreement with the creditor alleged in subparagraph 1.bto make nine monthly $5 payments to rehabilitate the loan. (AE C at 2) Applicant complied with the agreement, paying $69 in excess of what was required each month. By September 2016, Applicant had rehabilitated the debt, and it was transferred to another lender. (Tr. 28) That month, Applicant made a $1,500 payment, and he successfully applied for a forbearance on the remainder of the amount due on the loan. (AE I; AE M) The current unpaid principal balance is $43,050, and monthly payments will resume in October 2017. (AE M) Applicant obtained the forbearance hoping that his son, who is now gainfully employed and in the process of recovering from his mental breakdown, will be able to handle the loan payments by next year. (Tr. 25)

The financial advisors who helped Applicant arrange payment plans for his son’s student loans also helped him develop a budget. Per his budget, he earns approximately $125,000 annually, and he has approximately $4,250 in monthly discretionary income. (AE J at 2)

For several years, Applicant has suffered from severe back pain, stemming from injuries that occurred when he was in the Army. (AE D) Periodically, Applicant is in extreme pain that prevents him from sleeping or working. Over the years, he has taken Percocet, as prescribed by his physician, but he does not like the side effects or the negative information that he has read about it over the years. (Tr. 35) During a flare-up in 2013, Applicant decided to experiment with marijuana to relieve the pain. Consequently, he used it once, obtaining it from his sister, a chronically ill person with a legal marijuana prescription. (Tr. 36) It did not relieve his pain. He had never used it previously, and has not used it since then. He self-reported this marijuana use on his security clearance application. (GE 1 at 27)

POLICIES

The adjudicative guidelines list potentially disqualifying conditions and mitigating conditions. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, they are applied together with the factors listed in the adjudicative process. 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 access to classified information will be resolved in favor of national security.”

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

ANALYSIS

Guideline F, Financial Considerations

Under this guideline, “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.” (AG ¶ 18) Applicant’s delinquent debt triggers the application of AG ¶ 19(a), “inability or unwillingness to satisfy debts,” and AG ¶ 19(c), “a history of not meeting financial obligations,” apply.

The following mitigating conditions under AG ¶ 20 are potentially applicable:

(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, or a death, divorce or separation), and the individual acted responsibly under the circumstances;

(c) the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control; and

(d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debt.

Applicant’s debts are two student loans that he cosigned with his son that became his responsibility after his son did not pay them. By the time Applicant discovered that his son had not been paying them, they were already delinquent. Applicant consulted a financial counselor who helped him develop payment plans for both loans. Since then, Applicant has made approximately $15,000 of loan payments. Currently, he is complying with a rehabilitation agreement for the debt alleged in subparagraph 1.a, and he has successfully applied for a forbearance of the debt alleged in SOR subparagraph 1.b, after successfully rehabilitating it. Under these circumstances, I conclude that all of the mitigating conditions set forth above are applicable. Applicant has mitigated the financial considerations security concern.

Guideline H, Drug Involvement

Under this guideline, “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” (AG ¶ 24). Applicant’s use of marijuana in 2013 while in possession of a security clearance triggers the application of AG ¶¶ 24(a), “any drug abuse,” 24(c), “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;” and 24(g), “any illegal drug use after being granted a security clearance.”

Applicant’s marijuana use was a one-time occurrence precipitated by a search for a palliative for the excruciating pain stemming from a degenerative back problem causally related to his military career. It did not work, and he did not use it again. AG ¶ 26(a), “the behavior . . . was so infrequent . . . that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment,” applies. Applicant has mitigated the drug involvement security concern.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a). They are as follows:

(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.

Considering the circumstances surrounding Applicant’s student loan debt, the steps that he has taken to remedy it, and his financial stability, I conclude that he has mitigated the financial considerations security concern. The infrequency of the drug use together with the surrounding circumstances lead me to conclude that Applicant has mitigated the drug involvement security concern. In mitigating both security concerns, I considered the length of Applicant’s service in the Army, and the collective length of time that he has held a security clearance throughout his career.

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 F: AGAINST APPLICANT

Subparagraphs 1.a - 1.c: For Applicant Paragraph 2, Guideline H: FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

MARC E. CURRY Administrative Judge