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ISCR Case 15-03075.h1 — CASE

ISCR Case 15-03075.h1denied

Case Headnote

ISCR Case No. 15-03075.h1

deniedOct 25, 2016· Hon. Robert Robinson Gales· hearing

Summary

A 44-year-old defense contractor employee was denied a public trust position due to concerns under Guideline F (Financial Considerations) and Guideline H (Drug Involvement). The applicant admitted to all allegations, which included unresolved financial debts totaling approximately $35,885 and a history of drug involvement.

Specific financial concerns included unpaid medical accounts totaling $8,243. Regarding drug involvement, the applicant routinely used marijuana between 1991 and at least August 2012, and purchased, possessed, and snorted cocaine from November 2002 until at least August 2008. This history included positive drug tests for marijuana and for both marijuana and cocaine, resulting in job termination and two convictions for simple possession of marijuana.

The administrative judge denied eligibility, citing the applicant's admitted history of substance abuse and failure to provide evidence of resolving significant financial debts, despite several years of employment. The judge concluded there was insufficient evidence to mitigate the government's concerns.

Why the Applicant Was Denied

The applicant admitted to all allegations regarding financial irresponsibility and drug involvement.
The applicant has a history of substance abuse, including marijuana and cocaine, with multiple positive drug tests and convictions.
The applicant failed to provide evidence of resolving his significant financial debts despite being employed for several years.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 25(a)raisedAny Drug Abuse
AG ¶ 25(b)raisedTesting Positive for Illegal Drug Use
AG ¶ 25(c)raisedIllegal Drug Possession

Key Rule Quoted

“The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, the person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to sensitive duties is clearly consistent with the interests of national security.”
— DOD Directive 5220.6

Procedural Posture

SOR issuedOct 21, 2015
Answer filedNov 20, 2015Applicant elected to have the case decided on the written record.
Hearing held—No hearing; case decided on the written record.
Decision dateOct 25, 2016

Cite For

Trustworthiness Concerns Related to Financial Irresponsibility Under Guideline F
Trustworthiness Concerns Related to Drug Involvement Under Guideline H
The Burden of Persuasion Lies with the Applicant to Mitigate Disqualifying Conditions.

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, resulting in a denial of eligibility for a public trust position. The applicant admitted to multiple delinquent accounts totaling approximately $35,885, with no evidence of efforts to resolve these debts.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	There are medical accounts with unpaid balances of $8,243 $8,243	Against Applicant	Medical Debt	Admitted	—	—	—

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 failed to mitigate trustworthiness concerns related to drug involvement. The applicant had a history of using marijuana and cocaine, including positive drug tests and convictions for possession. The judge ruled against the applicant on all allegations under Guideline H, concluding that the applicant's drug use raised significant concerns about reliability and trustworthiness.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	Between 1991 and at least August 2012, Applicant purchased, possessed, and used marijuana on a fairly routine and regular basis.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
2.b	From November 2002 until at least August 2008, he purchased, possessed, and snorted cocaine.	Against Applicant	Cocaine	Regular	Admitted	—	—	—
2.c	He tested positive for marijuana alone on one occasion, and for marijuana and cocaine on another occasion, was fired from one job, and was convicted twice for simple possession of marijuana.	Against Applicant	Drug Test Failure	Not Applicable	Admitted	—	—	—

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: ) ) --- ) ADP Case No. 15-03075 ) Applicant for Public Trust Position )

For Government: Gina L. Marine, Esquire, Department Counsel For Applicant: Pro se

10/25/2016 ______________

STATEMENT OF CASE

______________

GALES, Robert Robinson, Administrative Judge:

Applicant has failed to mitigate the trustworthiness concerns regarding financial considerations and drug involvement. Eligibility to occupy a public trust position is denied.

Statement of the Case

On December 3, 2012, Applicant applied for a public trust position and submitted an Electronic Questionnaire for Investigations Processing (e-QIP).1 On October 21, 2015, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to him, pursuant to DOD Regulation 5200.2-R, Personnel Security Program, dated January 1987, as amended and modified (Regulation); DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended and modified (Directive); and Adjudicative Guidelines for Determining Eligibility For Access to Classified Information (effective within the DOD on September 1, 2006) (AG) for all adjudications and other determinations made under the Directive. The SOR alleged trustworthiness concerns under Guideline F (Financial Considerations) and Guideline H (Drug Involvement), and detailed reasons why the DOD adjudicators were unable to make an affirmative finding under the Directive that it is clearly consistent with the interests of national security to grant or continue Applicant’s eligibility for occupying a public trust position to support a contract with the DOD. The SOR recommended referral to an administrative judge to determine whether such eligibility should be granted, continued, denied, or revoked.

It is unclear when Applicant received the SOR as there is no receipt in the case file. In a sworn statement, dated November 20, 2015, Applicant responded to the SOR and elected to have his case decided on the written record in lieu of a hearing.2 A complete copy of the Government’s file of relevant material (FORM) was mailed to Applicant on January 28, 2016, and he was afforded an opportunity, within a period of 30 days after receipt of the FORM, to file objections and submit material in refutation, extenuation, or mitigation. In addition to the FORM, Applicant was furnished a copy of the Directive, as well as the Guidelines applicable to his case. Applicant received the FORM on February 12, 2016. The response was due on March 13, 2016. As of this date, Applicant had not submitted any response to the FORM. The case was assigned to me on September 13, 2016.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted, without comments, all of the factual allegations pertaining to financial considerations (¶¶ 1.a. through 1.r.) and drug involvement (¶¶ 2.a. through 2.c.) of the SOR. Applicant’s admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 44-year-old employee of a defense contractor. He has been a full- time customer service advocate for his employer since January 2013.3 He previously served in a variety of positions with other employers since July 1989. He was fired on two occasions: in May 2008 for drug abuse; and in September 2012 for “irreconcilable differences” related to missing funds. He also went through two periods of unemployment: May 2008 until December 2008; and September or October 2012 until December 2012 or January 2013.4 He is seeking to retain his eligibility for occupying a public trust position to support a contract with the DOD. Applicant is a 1990 high school graduate with additional college credits but no college degree.5 He has never served with the U.S. military.6 He has never married, but has cohabited with his significant-other since 2005.7 Drug Involvement

Applicant was a substance abuser whose substances of choice were marijuana and cocaine. He began smoking marijuana due of curiosity in 1991, at the age of 19, while attending a party in college. That initial experimentation soon spread to regular weekend use while attending college, and then to daily use upon leaving college. In early 2000, the marijuana use increased to three pipes of marijuana per day. Applicant’s marijuana use started decreasing in July 2012 to one pipe of marijuana three times per week, and in August 2012, it purportedly ceased. During the entire period of his marijuana use, he routinely purchased $50 “bags” of the substance on a weekly basis. Applicant enjoyed using marijuana because it made him relax and he wanted to get “high.”8 At one point in 2008, upon learning that he had been diagnosed as HIV positive, and following his father’s death, to deal with the overwhelming circumstances, he self-medicated with marijuana and stopped going to work.9

Although Applicant denied that his use of marijuana had any impact on his work, in fact, because he tested positive for marijuana during one pre-employment physical in September 2012, he was denied the job; and in May 2008, he was fired from a job for marijuana use.10 Although he tested positive on another occasion in 2004 or 2005, his employer did not take any disciplinary action.11 Applicant’s relationship with marijuana also resulted in his being charged and later convicted of simple possession of marijuana, a misdemeanor, in December 2001, and simple possession of marijuana, a felony, in February 2002. He was fined and his driver’s license was suspended for six months after each incident.12

Applicant began snorting cocaine due of curiosity in November 2002, while attending a party with his significant-other. The cocaine was out in the open on a table for all to try. That initial experimentation soon spread to routine occasional use during holidays or weekends. He estimated he used cocaine on 20 occasions or less until he purportedly stopped using it in August 2008. Although he tested positive for cocaine and marijuana on one occasion in 2004 or 2005, his employer did not take any disciplinary action.13 During the entire period of his cocaine use, he routinely purchased the substance. Applicant enjoyed using cocaine because it made him feel energetic, alert, and it kept him awake all night.14 Applicant’s use of both illegal substances continued until he decided that they were harming his body. As for the marijuana, Applicant did not want his continued use of marijuana to have an effect on his potential stable employment. Although he acknowledged being dependent on marijuana, he believes he had taken control of his urges and desires for marijuana. In December 2012, he concluded that he had gone so long without marijuana that he felt he no longer needed or wanted it.15 As of February 2013, he had no intentions of using marijuana in the future because he was trying to turn his life around.16 As for the cocaine, Applicant did not believe he was cocaine-dependent. He concluded that he had gone so long without cocaine that he felt he no longer needed or wanted it. He has no intention of using cocaine in the future.17

From June 2008 until October 2008, Applicant underwent outpatient counseling on will-power and coping skills for his substance abuse. The first month, he attended one session for one hour. The next two months he attended two sessions per month, and then transitioned to group therapy. Because he did not “click” with his counselor, Applicant left the program and enrolled in another program where he attended two sessions per month for one hour each on will-power and coping skills for his substance abuse from October 2008 until February 2009. He did not receive a diagnosis or any medication from either program.18

Financial Considerations19

It is unclear when Applicant’s financial problems initially arose, but he attributed them to several factors: his two periods of unemployment; his financial irresponsibility or “lack of financial priority” associated with his substance abuse; and injuries sustained in an automobile accident that occurred in 2002 when he was ejected from the vehicle and hospitalized.20 At some points between 2002 and 2013, Applicant had insufficient funds to maintain his accounts in a current status. Accounts became delinquent and were placed for collection. Many delinquent amounts were charged off. As noted above, his 2008 period of unemployment was drug-related. In December 2012, Applicant stated in his e-QIP that he intended to resolve many of his debts by paying them off from earnings upon regaining employment or by borrowing money from a friend.21 During his interview with an investigator from the U.S. Office of Personnel Management (OPM) in February 2013, Applicant indicated he would resolve some accounts (those with a balance under $500) by arranging repayment schedules by August 2013 and other accounts (those with a balance over $500) by February 2014.22 In his November 2015 Answer to the SOR, Applicant admitted that every one of the accounts remains delinquent. He offered no indication, by documentation or otherwise, that he had actually contacted any of his creditors, entered into repayment arrangements, or made any payments, despite the fact that he has been gainfully employed since January 2013 – three years before the FORM was issued.

The SOR identified 18 continuing delinquent accounts, totaling approximately $35,885, as reflected by the December 2012 credit report,23 the March 2015 credit report,24 and the January 2016 credit report.25 Those debts and their respective current status, according to the credit reports, and other evidence submitted by the Government and Applicant, are described below:

There are medical accounts with unpaid balances of $8,243 (SOR ¶ 1.a.); $6,084 (SOR ¶ 1.b.); $1,087 (SOR ¶ 1.h.); $313 (SOR ¶ 1.m.); $252 (SOR ¶ 1.n.); $151 (SOR ¶ 1.p.); $100 (SOR ¶ 1.q.); and $100 (SOR ¶ 1.r.). There is a variety of other accounts with unpaid balances, some of which were charged off: $5,875 (SOR ¶ 1.c.); $4,561 (SOR ¶ 1.d.); $3,336 (SOR ¶ 1.e.); $1,180 (SOR ¶ 1.f.); $1,107 (SOR ¶ 1.g.); $970 (SOR ¶ 1.i.); $940 (SOR ¶ 1.j.); $776 (SOR ¶ 1.k.); $593 (SOR ¶ 1.l.); $217 (SOR ¶ 1.o.). All of the accounts remain unresolved.

There is no indication that Applicant has ever received financial counseling, or that he has made any efforts to resolve any of the accounts. Because he failed to submit any information pertaining to his current finances, including monthly budget, income, expenses, savings, etc., it is impossible to assess the status of his finances to determine if his financial problems are under control.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a [position of public trust].”26 As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information. Positions designated as ADP-I and ADP-II are classified as “sensitive positions.”27 “The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, the person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to sensitive duties is clearly consistent with the interests of national security.”28 DOD contractor personnel are afforded the right to the procedures contained in the Directive before any final unfavorable access determination may be made.29

When evaluating an applicant’s suitability for a public trust position, 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 a public trust position.

An administrative judge need not view the guidelines as inflexible, ironclad rules of law. Instead, acknowledging 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 common sense decision. 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 meaningful decision.

In the decision-making process, facts must be established by “substantial evidence.”30 The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR. Once the Government has produced substantial evidence of a disqualifying condition, under Directive ¶ E3.1.15, the applicant has the burden of persuasion to present evidence in refutation, explanation, extenuation or mitigation, sufficient to overcome the doubts raised by the Government’s case. The burden of disproving a mitigating condition never shifts to the Government.31

A person who seeks access to sensitive 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 as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to sensitive information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of sensitive information. Furthermore, security clearance determinations, and by inference, public trust determinations, should err, if they must, on the side of denials.32 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.

ANALYSIS

Guideline H, Drug Involvement

The trustworthiness concern relating to the guideline for Drug Involvement is set out in AG ¶ 24:

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.

The guideline notes several conditions that could raise trustworthiness concerns. Under AG ¶ 25(a), “any drug abuse (see above definition),” is potentially disqualifying. In addition, under AG ¶ 25(b), “testing positive for illegal drug use” may raise trustworthiness concerns. Similarly, AG ¶ 25(c) may apply where there is “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.”

Between 1991 and at least August 2012, Applicant purchased, possessed, and used marijuana on a fairly routine and regular basis. He continued using marijuana after he had been enrolled in two different drug counseling programs. From November 2002 until at least August 2008, he purchased, possessed, and snorted cocaine. He tested positive for marijuana alone on one occasion, and for marijuana and cocaine on another occasion, was fired from one job, and was convicted twice for simple possession of marijuana. AG ¶¶ 25(a), 25(b), and 25(c) have been established.

The guideline also includes examples of conditions that could mitigate trustworthiness concerns arising from drug involvement. Under AG ¶ 26(a), the disqualifying conditions may be mitigated where “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.” Under AG ¶ 26(b), drug involvement concerns may also be mitigated where there is

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 [a public trust position] for any violation.

Also, the “satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional,” may apply under AG ¶ 26(d).

None of the mitigating conditions apply. While the most recent use of an illegal substance purportedly occurred in August 2012 – slightly over four years ago – Applicant’s purchase, possession, and use of marijuana took place on a fairly routine and regular basis over a period of more than two decades. His more limited period of purchases, possession, and use of cocaine, took place from November 2002 until at least August 2008. He continued using marijuana for four years after he had been enrolled in two different drug counseling programs. His unverified statement that he does not intend to use any drugs in the future, along with his purported period of abstinence, are laudable, but considering the lengthy period of his drug abuse, when contrasted with the relatively brief period of abstinence, especially following his resumption of marijuana use after completing his counseling program, necessitate a longer period of abstinence. Applicant’s purported abstinence is viewed favorably, and he should be encouraged to continue it. However, Applicant has not furnished a reasonable basis for ignoring federal and state drug laws and policy, but instead resorted to marijuana or cocaine use because marijuana relaxed him and cocaine made him feel energetic, alert, and it kept him awake all night. In the absence of positive character evidence, all of the above factors continue to cast doubt on Applicant’s reliability, trustworthiness, or good judgment.

Guideline F, Financial Considerations

The trustworthiness concern relating to the guideline for Financial Considerations is set out in AG ¶ 18: 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 [sensitive] information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. . . .

The guideline notes several conditions that could raise trustworthiness concerns. Under AG ¶ 19(a), an “inability or unwillingness to satisfy debts” is potentially disqualifying. Where there is “indebtedness caused by frivolous or irresponsible spending and the absence of any evidence of willingness or intent to pay the debt or establish a realistic plan to pay the debt,” AG ¶ 19(b) may apply. Also, under AG ¶ 19(c), “a history of not meeting financial obligations” may raise trustworthiness concerns. In addition, “financial problems that are linked to drug abuse, alcoholism, gambling problems, or other issues of [trustworthiness] concern,” AG ¶ 19(f) may apply. At some points between 2002 and 2013, Applicant’s accounts became delinquent, were placed for collection, and many delinquent amounts were charged off. Some of his financial problems were liked to his drug abuse. Although Applicant repeatedly discussed a plan to pay off his debts upon regaining employment, he offered no evidence that he had taken any steps to do so despite the fact that he has been gainfully employed since January 2013. AG ¶¶ 19(a), 19(b), 19(c), and 19(f) have been established.

The guideline also includes examples of conditions that could mitigate trustworthiness concerns arising from financial difficulties. Under AG ¶ 20(a), the disqualifying condition may be mitigated where “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.” Also, under AG ¶ 20(b), financial trustworthiness concerns may be mitigated where “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.” Evidence that “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” is potentially mitigating under AG ¶ 20(c). Similarly, AG ¶ 20(d) applies where the evidence shows “the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.”33 AG ¶ 20(b) minimally applies. AG ¶¶ 20(a), 20(c), and 20(d) do not apply. Applicant was unemployed for several months in 2008 after being fired for drug use, and for several months in late 2012 or early 2013. He was also briefly hospitalized in connection with a drug-related motor vehicle accident. However, while those situations occurred, Applicant failed to act reasonably under the circumstances. His financial difficulties remain unaltered. Despite his repeated promises to contact his creditors, arrange for repayment plans, and make payments, after four years, he has still not taken the first “good-faith effort” to implement his promised plan. Even the most modest of Applicant’s debts (two debts for $100 and one for $151) remain ignored. There is no evidence that Applicant has ever received financial counseling. In the absence of any information pertaining to his current finances, including monthly budget, income, expenses, savings, etc., it is impossible to assess the status of his finances to determine if his financial problems are under control. Applicant’s actions continue to cast doubt on his current reliability, trustworthiness, or good judgment.34

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a public trust position 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(a):

(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 public trust position must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Moreover, I have evaluated this case in light of the totality of the record evidence and have not merely performed a piecemeal analysis.35

There is some evidence in favor of mitigating Applicant’s conduct. There is no evidence of misuse of information technology systems or mishandling protected information. Applicant has been gainfully employed since January 2013. He has purportedly been abstinent from any illegal substances since August 2012. He has stated an intention to avoid illegal substances in the future. He has promised to resolve his debts. The disqualifying evidence is more substantial. A multiple substance abuser for over two decades, Applicant purchased, possessed, and used marijuana on a fairly routine and regular basis. He continued using marijuana after he had been enrolled in two different drug counseling programs. For nearly six years, he purchased, possessed, and snorted cocaine. He tested positive for marijuana alone on one occasion, and for marijuana and cocaine on another occasion. He was fired from one job for drug use. He was convicted twice for simple possession of marijuana. Applicant has 18 continuing delinquent accounts, totaling approximately $35,885, which he has repeatedly promised to resolve after he obtained his job in January 2013, but which remain ignored by him. It appears that Applicant's financial problems are not under control. Applicant’s actions continue to cast doubt on his current reliability, trustworthiness, or good judgment.

Overall, the evidence leaves me with substantial questions or doubts as to Applicant’s eligibility and suitability for a position of public trust. For all of these reasons, I conclude Applicant has failed to mitigate the trustworthiness concerns arising from his financial considerations and drug involvement. See AG ¶ 2(a)(1) through AG ¶ 2(a)(9).

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. through 1.r.: Against Applicant

Paragraph 2, Guideline H: AGAINST APPLICANT

Subparagraphs 2.a. through 2.c.: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant eligibility to occupy a public trust position to support a contract with DOD. Eligibility is denied.

________________________ ROBERT ROBINSON GALES Administrative Judge

FOOTNOTES

1 Item 3 (e-QIP, dated December 3, 2012). 2 Item 2 (Applicant’s Answer to the SOR, dated November 20, 2015). 3 Item 4 (Personal Subject Interview, dated February 19, 2013), at 1. 4 Item 3, supra note 1, at 11-19; Item 4, supra note 3, at 1-4. 5 Item 3, supra note 1, at 9-10. 6 Item 3, supra note 1, at 20. 7 Item 3, supra note 1, at 22-23. 8 Item 3, supra note 1, at 34-36; Item 4, supra note 3, at 5-6. 9 Item 4, supra note 3, at 4. 10 Item 4, supra note 3, at 6; Item 3, supra note 1, at 18-19. 11 Item 4, supra note 3, at 6. 12 Item 4, supra note 3, at 5; Item 3, supra note 1, at 32-33. 13 Item 4, supra note 3, at 7. 14 Item 3, supra note 1, at 35-36; Item 4, supra note 3, at 6-7. 15 Item 3, supra note 1, at 35. 16 Item 4, supra note 3, at 6; Item 3, supra note 1, at 35. 17 Item 4, supra note 3, at 7; Item 3, supra note 1, at 35. 18 Item 4, supra note 3, at 7-8; Item 3, supra note 1, at 38-40. 19 General source information pertaining to the financial accounts discussed below can be found in the following exhibits: Item 6 (Combined Experian, TransUnion, and Equifax Credit Report, dated December 25, 2012); Item 5 (Equifax Credit Report, dated March 16, 2015); Item 7 (Equifax Credit Report, dated January 4, 2016); Item 2, supra note 2; Item 4, supra note 3; Item 3, supra note 1. More recent information can be found in the exhibits furnished and individually identified. 20 Item 4, supra note 3, at 11. 21 Item 3, supra note 1, at 42-50. 22 Item 4, supra note 3, at 8-11. 23 Item 6, supra note 19. 24 Item 5, supra note 19. 25 Item 7, supra note 19. 26 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 27 Regulation ¶¶ C3.1.2.1.1.7, C3.1.2.1.2.3, and C3.1.2.2. See also Regulation app. 10, ¶ 10.2. 28 Regulation ¶ C6.1.1.1. 29 Regulation ¶ C8.2.1. It should be noted that a memorandum from the Deputy Under Secretary of Defense for Counterintelligence and Security, Adjudication of Trustworthiness Cases, dated November 19, 2004, covers the handling of trustworthiness cases under the Directive. The memorandum directed the Defense Office of Hearings and Appeals (DOHA) to continue to utilize the Directive in ADP contractor cases for trustworthiness determinations. 30 “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 31 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 32 Egan, 484 U.S. at 531. 33 The Appeal Board has previously explained what constitutes a good-faith effort to repay overdue creditors or otherwise resolve debts: In order to qualify for application of [the “good-faith” mitigating condition], an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term “good-faith.” However, the Board has indicated that the concept of good-faith “requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.” Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy [or statute of limitations]) in order to claim the benefit of [the “good-faith” mitigating condition]. (internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). 34 See ISCR Case No. 09-08533 at 3-4 (App. Bd. Oct. 6, 2010). 35 See U.S. v. Bottone, 365 F.2d 389, 392 (2d Cir. 1966); See also ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).