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ISCR Case 15-04420.h1 — CASE

ISCR Case 15-04420.h1denied

Case Headnote

ISCR Case No. 15-04420.h1

deniedOct 3, 2017· Hon. LeRoy F. Foreman· hearing

Summary

A 49-year-old pipefitter was denied a security clearance due to concerns under Guideline F (Financial Considerations) and Guideline G (Alcohol Consumption). The applicant had a history of excessive alcohol use, including alcohol-related work absences, a diagnosis of alcohol dependence, and a conviction for driving under the influence. He also carried approximately $50,563 in delinquent debts.

While the applicant demonstrated over three years of alcohol abstinence and participated in treatment programs, mitigating conditions for alcohol consumption were applied. However, the financial concerns remained unmitigated. The applicant admitted to the delinquent debts but provided no evidence of efforts to resolve them.

The decision noted that the applicant's financial problems were not due to circumstances beyond his control, as his unemployment resulted from his own misconduct. Furthermore, he did not present evidence of financial counseling or a good-faith effort to repay his debts. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant has significant delinquent debts totaling approximately $50,563, which he admitted and provided no evidence of efforts to resolve.
The applicant's financial problems were not mitigated by circumstances beyond his control, as his unemployment was due to his own misconduct.
The applicant did not present evidence of financial counseling or a good-faith effort to repay debts.

Conditions Referenced

Disqualifying

AG ¶ 19(a)appliedInability to Satisfy Debts
AG ¶ 19(b)appliedUnwillingness to Satisfy Debts Regardless of the Ability to Do So
AG ¶ 19(c)appliedA History of Not Meeting Financial Obligations

Mitigating

AG ¶ 23(b)appliedAcknowledgment of Maladaptive Alcohol Use and Evidence of Actions Taken to Overcome This Problem
AG ¶ 23(d)appliedSuccessful Completion of Treatment Program and Established Pattern of Abstinence

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedMay 1, 2016
Answer filedMay 25, 2016
Hearing held—Decision made on the written record without a hearing.
Decision dateOct 3, 2017

Cite For

Denial Based on Unresolved Financial Obligations Under Guideline F
Mitigating Conditions for Alcohol Consumption Under Guideline G
Importance of Demonstrating Efforts to Resolve Financial Issues 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 multiple delinquent debts totaling approximately $50,563, which he admitted were due to a period of unemployment and underemployment. However, the applicant did not provide evidence of efforts to resolve these debts, leading to a decision against him under Guideline F.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	Applicant has delinquent debts totaling approximately $50,563. $50,563	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	—	—
2.b	Applicant has delinquent debts totaling approximately $50,563. $50,563	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	—	—
2.c	Applicant has delinquent debts totaling approximately $50,563. $50,563	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	—	—
2.d	Applicant has delinquent debts totaling approximately $50,563. $50,563	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	—	—
2.e	Applicant has delinquent debts totaling approximately $50,563. $50,563	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	—	—
2.f	Applicant has delinquent debts totaling approximately $50,563. $50,563	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	—	—
2.g	Applicant has delinquent debts totaling approximately $50,563. $50,563	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	—	—
2.h	Applicant has delinquent debts totaling approximately $50,563. $50,563	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	—	—

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 G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: deniedAUD DIAGNOSEDTREATMENT COMPLETED · FAVORABLE

The judge found that the applicant's history of alcohol consumption raised security concerns under Guideline G. However, the applicant successfully mitigated these concerns through evidence of abstinence and participation in treatment programs. The judge ruled in favor of the applicant on all allegations under Guideline G, leading to a denial of the security clearance based on other factors.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant has a history of alcohol-related absences from work.	For Applicant	Alcohol Related Hospitalization	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.c	The applicant was diagnosed with alcohol dependence.	For Applicant	Alcohol Use Disorder Diagnosed	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
1.d	specific text not stated in this decision	For Applicant	Unspecified Alcohol Incident	Unknown	—	—	—
1.e	The applicant was convicted of driving under the influence.	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—

Descriptive standardized rendering of a decided public case (Guideline G). 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. 15-04420 ) Applicant for Security Clearance )

For Government: Eric Borgstrom, Esq., Department Counsel For Applicant: Pro se

10/03/2017 ______________

STATEMENT OF CASE

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves security concerns raised under Guidelines G (Alcohol Consumption) and F (Financial Considerations). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application on July 9, 2014. On May 1, 2016, the Department of Defense (DOD) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines G and F. The DOD acted under Executive Order (Exec. Or.) 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 DOD on September 1, 2006.1 Applicant answered the SOR on May 25, 2016, and requested a decision on the written record without a hearing. Department Counsel submitted the Government’s written case on October 25, 2016. On October 31, 2016, a complete copy of the file of relevant material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on November 14, 2016, and did not respond. The case was assigned to me on October 1, 2017.

Findings of Fact2

In Applicant’s answer to the SOR, he admitted all the allegations.3 His admissions are incorporated in my findings of fact.

Applicant is a 49-year-old pipefitter employed by a defense contractor since July 2014. He graduated from college in May 1991 with a bachelor’s degree. He married in August 2005. He and his wife have two children, ages 10 and 8. He worked at various private-sector jobs before he was hired for his current position. He had a six-month period of unemployment in 2012, after he was fired for chewing tobacco at work. He has never held a security clearance.

Applicant began binge drinking around 1983, when he was 15 years old. He consumed a 12-pack of beer a day in college. In 1989, he was convicted of driving while intoxicated after being involved in an accident. He was fined $400, his driver’s license was suspended for three months, and he was required to complete 32 hours of community service and an alcohol-education class. This conviction is alleged in SOR ¶ 1.e.

In December 1991, Applicant self-referred into a six-day alcohol abuse and detoxification program. Afterwards, he abstained from alcohol for about 16 years and attended Alcoholics Anonymous (AA) meetings regularly. He resumed his alcohol consumption in 2008. In 2009, he was convicted of driving under the influence. He was fined $600, his driver’s license was suspended for three months, and he was required to complete 32 hours of community service and an alcohol-education class. This conviction is alleged in SOR ¶ 1.c.

Applicant consumed a 12-pack of beer daily until March 2010, when he stopped drinking and returned to regular participation in AA. He relapsed in April 2014, consuming a 12-pack of beer daily for one and a half weeks. He self-referred to a four-day alcohol abuse and alcohol detoxification program in April 2014, and he missed four days of work while attending the program. He was diagnosed as alcohol dependent. His alcohol-related absence from work is alleged in SOR ¶ 1.a, and his diagnosis and treatment are alleged in SOR ¶ 1.c. He has abstained from alcohol since completing the program in April 2014, and he attends AA meetings regularly. (Item 4.) Under Guideline F, the SOR alleges eight consumer debts totaling about $50,563. The debts are reflected on credit reports from February 2015 and January 2016. (Items 5 and 6.) In a personal subject interview in December 2014, Applicant attributed his debts to the six-month period of unemployment in 2012, followed by a series of low-paying jobs. (Item 4 at 6.) Applicant admitted all the debts in his answer to the SOR. He provided no evidence of any efforts to resolve the debts alleged in the SOR.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “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). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 15-01253 at 3, (App. Bd. Apr.20, 2016).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

ANALYSIS

Guideline G, Alcohol Consumption

The security concern under this guideline is set out in AG ¶ 21: “Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness.” Applicant’s admitted history of excessive alcohol consumption establishes the following disqualifying conditions under this guideline:

AG ¶ 22(a): alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder; and

AG ¶ 22(c): habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder.4

The mitigating condition in AG ¶ 22(d) (“diagnosis by a duly qualified medical or mental health professional . . . of alcohol use disorder”) is not established, because the credentials of the individual who diagnosed Applicant as alcohol dependent are not reflected in the record.

The following mitigating conditions are potentially relevant:

AG ¶ 23(a): so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or judgment;

AG ¶ 23(b): the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations; and

AG ¶ 23(d): the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.

All of the above conditions are established. Applicant has abstained from alcohol for more than three years. He acknowledged his maladaptive alcohol use by twice self- admitting into alcohol-abuse and detoxification programs. His relapse in February 2014 was preceded by three years of abstinence. He has completed two treatment programs and regularly participates in AA meetings.

Guideline F, Financial Considerations

The security concern under this guideline is set out in AG ¶ 18:

Failure to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. . . .

This concern is broader than the possibility that a person might knowingly compromise classified information to raise money. It encompasses concerns about a person’s self-control, judgment, and other qualities essential to protecting classified information. A person who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding classified information. See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012).

Applicant’s admissions, corroborated by his credit reports, establish three disqualifying conditions under this guideline: AG ¶ 19(a) (“inability to satisfy debts”); AG ¶ 19(b) (“unwillingness to satisfy debts regardless of the ability to do so”); and AG ¶ 19(c) (“a history of not meeting financial obligations”). The following mitigating conditions are potentially relevant:

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 (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances;

AG ¶ 20(c): the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control; and

AG ¶ 20(d): the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts.

None of the above mitigating conditions are fully established. Applicant’s delinquent debts are recent, frequent, ongoing, and were not incurred under circumstances making them unlikely to recur. His six-month unemployment in 2012 was caused by his own misconduct. His underemployment may have been a condition beyond his control, but it is not clear to what extent his excessive use of alcohol interfered with his ability to find work commensurate with his age and education. He has presented no evidence of financial counseling, payments, or payment plans; and he has not disputed any of the debts alleged in the SOR.

WHOLE PERSON CONCEPT

The ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. In applying the whole-person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances and applying the adjudicative factors in AG ¶ 2(d).5 I have incorporated my comments under Guidelines G and F in my whole-person analysis and applied the adjudicative factors in AG ¶ 2(d). Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003). After weighing the disqualifying and mitigating conditions under Guidelines G and F, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns raised by his alcohol consumption, but he has not mitigated the security concerns raised by his delinquent debts.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline G (Alcohol Consumption): FOR APPLICANT

Subparagraphs 1.a and 1.c-1.e: For Applicant

Paragraph 2, Guideline F (Financial Considerations): AGAINST APPLICANT

Subparagraphs 2.a-2.h: Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

LeRoy F. Foreman Administrative Judge

FOOTNOTES

1 Security Executive Agent Directive 4 (SEAD 4), was issued on December 10, 2016, revising the 2006 adjudicative guidelines. The SEAD 4 guidelines apply to all adjudicative decisions issued on or after June 8, 2017. The changes resulting from issuance of SEAD 4 did not affect my decision in this case. 2 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record.

3 There is no SOR ¶ 1.b. The Guideline G allegations are SOR ¶¶ 1.a, 1.c, 1.d, and 1.e. 4 The term “alcohol use disorder” includes both alcohol dependence and alcohol abuse. The language of this disqualifying condition was changed to conform to the terminology in the Diagnostic and Statistical Manual of Mental Disorders, (5th ed. 2013). 5 The 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.