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ISCR Case 15-07599 — CASE

ISCR Case 15-07599granted

Case Headnote

ISCR Case No. 15-07599

grantedMay 8, 2017· Hon. Francisco Mendez· hearing

Summary

A 50-year-old mechanical engineer was granted eligibility for a Common Access Card (CAC) despite initial concerns under Guideline B (Foreign Influence), Guideline D (Sexual Behavior), and Guideline E (Personal Conduct). The Statement of Reasons (SOR) raised issues regarding the applicant's back taxes and multiple DUIs, citing concerns about questionable judgment, reliability, and the potential risk to people, property, or information systems. Specifically, the allegations referenced SAS ¶ 2.a concerning past criminal or dishonest conduct and SAS ¶ 4.a regarding alcohol abuse.

The judge found that the applicant had taken significant steps to mitigate these concerns. He proactively addressed his tax debts by negotiating repayment plans and increasing tax withholdings. Furthermore, he demonstrated successful rehabilitation from alcohol abuse, having completed a treatment program and maintained sobriety.

The applicant's honesty in disclosing his past issues and his commitment to sobriety were deemed credible and persuasive. Ultimately, the judge concluded that granting CAC eligibility would not pose an unreasonable risk to U.S. personnel or property, leading to a GRANTED outcome.

Why the Applicant Prevailed

The applicant proactively addressed his tax debts by negotiating repayment plans and increasing tax withholdings.
He demonstrated successful rehabilitation from alcohol abuse, completing a treatment program and maintaining sobriety.
The applicant's honesty in disclosing his past issues and his commitment to sobriety were credible and persuasive.

Conditions Referenced

Disqualifying

SAS ¶ 2.araisedCriminal or Dishonest Conduct
SAS ¶ 4.araisedAlcohol Abuse

Mitigating

SAS ¶ 2.c(1)appliedBehavior Unlikely to Recur
SAS ¶ 2.c(4)appliedEvidence of Successful Rehabilitation
SAS ¶ 4.c(1)appliedAcknowledgment of Alcoholism and Pattern of Abstinence
SAS ¶ 4.c(3)appliedSuccessful Completion of Treatment

Key Rule Quoted

“The overriding factor in all CAC adjudications is unacceptable risk.”

Procedural Posture

SOR issuedJan 4, 2016
Answer filedJan 25, 2016
Hearing heldMar 16, 2017mutually agreed date
Decision dateMay 8, 2017

Cite For

Mitigation of Tax Debt Concerns Under Guideline D
Successful Rehabilitation From Alcohol Abuse Under Guideline E
Credibility of Applicant's Disclosures in CAC Eligibility Cases

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 B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated concerns related to his past alcohol-related criminal conduct and tax debts, concluding that granting him eligibility for a Common Access Card (CAC) would not pose an unreasonable risk to U.S. personnel, property, or information systems. The decision resulted in granting the applicant CAC eligibility.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a–3.a	5 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's past alcohol-related criminal conduct raised concerns under Guideline D, but ultimately ruled in favor of the applicant, citing successful rehabilitation and a low probability of recurrence. The applicant's honesty and proactive measures to address his issues were also noted as mitigating factors.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
2.a	Applicant’s back taxes and DUIs raise the CAC credentialing concern set forth in SAS ¶ 2.a: An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk.	For Applicant	Unspecified Sexual Behavior	Unknown	—	—	—
2.b	Applicant’s back taxes and DUIs raise the CAC credentialing concern set forth in SAS ¶ 2.a: An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk.	For Applicant	Unspecified Sexual Behavior	Unknown	—	—	—
2.c	Applicant’s back taxes and DUIs raise the CAC credentialing concern set forth in SAS ¶ 2.a: An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk.	For Applicant	Unspecified Sexual Behavior	Unknown	—	—	—
2.d	Applicant’s back taxes and DUIs raise the CAC credentialing concern set forth in SAS ¶ 2.a: An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk.	For Applicant	Unspecified Sexual Behavior	Unknown	—	—	—
3.a	SOR 3.a allege that Applicant’s DUIs raise the CAC credentialing concern set forth in SAS ¶ 4.a: An individual’s abuse of alcohol may put people, property, or information systems at risk. Alcohol abuse can lead to the exercise of questionable judgment or failure to control impulses, and may put people, property, or information systems at risk, regardless of whether he or she is diagnosed as an abuser of alcohol or alcohol dependent. A person’s long-term abuse of alcohol without evidence of substantial rehabilitation may indicate that granting a CAC poses an unacceptable safety risk in a U.S. Government facility.	For Applicant	Unspecified Sexual Behavior	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline D). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated concerns related to criminal or dishonest conduct and alcohol abuse, leading to a decision to grant eligibility for a Common Access Card (CAC). The applicant's past conduct was deemed not to pose an unreasonable risk to U.S. personnel, property, or information systems.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a–3.a	5 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant		—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). 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 ) CAC Case No. 15-07599 ) ) Applicant for CAC Eligibility

For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se

05/08/2017 ______________

STATEMENT OF CASE

______________

MENDEZ, Francisco, Administrative Judge:

Applicant presented sufficient evidence to mitigate Common Access Card (CAC) eligibility concerns purportedly raised by his tax debts and alcohol-related criminal conduct. Granting him eligibility for a CAC will not create an unreasonable risk to U.S. personnel, property, or information systems. CAC eligibility is granted.

Statement of the Case

On January 4, 2016, pursuant to Homeland Security Presidential Directive – 12 (HSPD-12), the Department of Defense (DoD) issued a Statement of Reasons (SOR) to Applicant detailing concerns about his continued eligibility for a CAC. This action was taken under DoD Instruction (DoDI) 5200.46, DoD Investigative and Adjudicative Guidelines for Issuing the Common Access Card, dated September 9, 2014 (Instruction), and in accordance with the established administrative process set out in DoD Directive (DoDD) 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992) (Directive). The SOR alleges CAC credentialing concerns under Supplemental Adjudicative Standards (SAS) ¶ 1.a (employment misconduct), SAS ¶ 2.a (criminal or dishonest conduct), and SAS ¶ 4 (alcohol abuse). Applicant answered the SOR on January 25, 2016, and requested a hearing. On March 16, 2017, a date mutually agreed to by the parties, a hearing was held.1

At hearing, Department Counsel’s motion to amend the SOR to strike or withdraw the employment misconduct allegations was granted without objection.2 Applicant testified at the hearing, and Government Exhibits 1 – 8 and Applicant’s Exhibits A – J were admitted into the administrative record without objection.

At the conclusion of the hearing, I advised the parties that the case appeared appropriate for resolution through summary disposition.3 On March 23, 2017, Department Counsel objected to the resolution of the case in such manner and requested a full decision.4 The hearing transcript (Tr.) was received on March 24, 2017.

FINDINGS OF FACT

Applicant is a 50-year-old mechanical engineer. He has been working for his current employer for the past three years. He needs a CAC to enter the military installation where his job is located. A vice president (VP) for the company that employs Applicant states that Applicant has “developed strong leadership and interpersonal skills that have been unanimously praised by colleagues.” The VP goes on to state that Applicant is a “model employee.”5

Applicant owned his own business from 2004 to 2013. He and his wife divorced in 2008, after eight years of marriage. They share custody of their 12-year-old child. Applicant’s business started experiencing problems a year after his divorce. Applicant was unable to generate sufficient business and his income decreased sharply. He was unable to pay his federal and state income taxes. He voluntarily reported this adverse financial information on the federal employment form that he submitted in connection with his current job.

After starting at his current job in 2014, Applicant took steps to address his tax situation. He contacted the IRS and the state tax authority, and negotiated repayment plans. He also made the conscious and deliberate decision to increase his tax withholdings to pay down his tax debt. For tax years 2014 and 2015, his increased withholding resulted in federal tax refunds of $2,670 and $5,800, respectively; which were applied by the IRS against his federal tax debt. He has made consistent monthly payments as required by the repayment plans and continues to have an increased amount withheld from his salary to pay down his tax debt.6

Around the time of his divorce, Applicant started abusing alcohol. He drove his vehicle under the influence (DUI) in 2008, 2013, and 2014. He received a deferred adjudication for the 2008 DUI. He was convicted after pleading guilty to the 2013 and 2014 DUI charges. He received a 30-day jail sentence, which he served on weekends. He has completed all terms of his sentences, to include the terms of his probation. He reported this adverse information on his federal employment form. He also informed his ex-wife about the DUIs and the jail sentence. They worked out an alternate custody schedule, so he could continue to care for his child.

Applicant obtained alcohol counseling. He successfully completed a 26-week outpatient alcohol treatment program. During the program, he was subject to random screenings for alcohol and drugs. At the conclusion of the program, Applicant was advised to abstain from consuming alcohol in the future. He recognizes that he is an alcoholic and must abstain. He is active in Alcoholics Anonymous (AA). At hearing, he volunteered that he had a slip-up about a year ago at a work-related function where alcohol was served. Before realizing what he was doing, he consumed some alcohol that had been offered to him. He sought help from his AA support group and has maintained his sobriety to the present day. He intends to remain sober, as he recognizes the danger alcohol poses to himself and his ability to provide for his child.7

POLICIES

As established in HSPD-12, CAC “credentialing adjudication considers whether or not an individual is eligible for long-term access to federally controlled facilities and/or information systems.” Instruction, Enclosure 4, ¶ 1.a. The Instruction recognizes that each CAC case is unique and a fair and impartial overall commonsense decision should examine all available evidence, both favorable and unfavorable.

The “overriding factor” or standard in all CAC adjudications is “unacceptable risk.” Id. This term is specifically defined by the Instruction as follows:

A threat to the life, safety, or health of employees, contractors, vendors, or visitors; to the U.S. Government physical assets or information systems; to personal property; to records, including classified, privileged, proprietary, financial, and medical records; or to the privacy rights established by The Privacy Act of 1974, as amended, or other law that is deemed unacceptable when making risk management determinations.8 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.”9 An applicant has the ultimate burden of persuasion to obtain CAC eligibility.

Adjudicative factors to be applied consistently in all CAC cases include: (1) the nature and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the recency and frequency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) contributing external conditions; and (6) the absence or presence of efforts towards rehabilitation. Instruction, Enclosure 4, ¶ 1.b. Any reasonable doubt concerning an applicant’s CAC eligibility should be resolved in favor of protecting the Government’s vital interests in making certain that only persons that do not pose an unacceptable risk are granted a CAC.

ANALYSIS

Criminal or Dishonest Conduct

SOR 2.a – 2.dallege that Applicant’s back taxes and DUIs raise the CAC credentialing concern set forth in SAS ¶ 2.a:

An individual’s conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about his or her reliability or trustworthiness and may put people, property, or information systems at risk. An individual’s past criminal or dishonest conduct may put people, property, or information systems at risk.

In assessing whether the evidence raises a reasonable basis to believe there is an unacceptable risk to people, property, or information systems, I considered the following pertinent disqualifying conditions and mitigating circumstances:

SAS ¶ 2.b(1): A single serious crime or multiple lesser offenses which put the safety of people at risk or threaten the protection of property or information. A person’s convictions for burglary may indicate that granting a CAC poses an unacceptable risk to the U.S. Government’s physical assets and to employees’ personal property on a U.S. Government facility.

SAS ¶ 2.b(4): Deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, or other intentional financial breaches of trust. SAS ¶ 2.b(6): Financial irresponsibility may raise questions about the individual’s honesty and put people, property or information systems at risk, although financial debt should not in and of itself be cause for denial.

SAS ¶ 2.c(1): The behavior happened so long ago, was minor in nature, or happened under such unusual circumstances that it is unlikely to recur.

SAS ¶ 2.c(4): Evidence has been supplied of successful rehabilitation, including but not limited to remorse or restitution, job training or higher education, good employment record, constructive community involvement, or passage of time without recurrence.

Applicant’s back taxes do not raise a CAC credentialing concern under SAS ¶ 2.a. Applicant revealed the adverse information regarding his taxes on his federal employment form. He responsibly addressed his tax debts by reaching out to the IRS and the state tax authority and negotiating repayment plans. He is repaying his tax debts through the agreed-upon repayment plans and is having an additional amount withheld from his salary each pay period to further pay down his tax debts.

Furthermore, Applicant’s tax situation is not related to criminal or dishonest conduct. His honesty in revealing the potentially disqualifying financial information about his taxes on the federal employment form and the responsible manner in which he is addressing his tax debts refutes any potential negative inference that could arguably be drawn from this situation. See generally CAC Case No. 15-02333 at 4-5 (App. Bd. Mar. 22, 2017) (in a unanimous decision, the Board soundly rejected Department Counsel’s position that tax debts alone, without evidence of criminality or deception, raised a credentialing concern under SAS ¶ 2.a); CAC Case No. 15-00895 (App. Bd. Nov. 16, 2016) (remanding unfavorable decision for judge to explain how tax debts alone raised a CAC credentialing concern).

Applicant’s DUIs, on the other hand, do potentially raise a CAC credentialing concern under SAS ¶ 2.a, and specifically disqualifying condition SAS ¶ 2.b(1). It has been nearly three years since Applicant’s last DUI offense. He was going through significant upheaval and turmoil in his personal and professional life around the time the DUIs occurred. Since the 2014 DUI, Applicant has received counseling for his alcoholism, voluntarily remains active in AA after successfully completing all terms of his probation, and has become a leader at work and a model employee. He has remained sober since the 2014 DUI, except for the one incident that he volunteered at hearing. He did so despite knowing such disclosure could negatively impact his CAC eligibility and continued employment. This sole incident did not involve excessive or binge alcohol consumption, nor did he engage in any criminal or questionable behavior under the influence. Instead, he immediately sought the help of his AA support group to deal with the one-time relapse. He has been sober since that incident, which occurred over a year ago. He credibly testified about his intent to remain sober going forward. He is dedicated to his 12-year-old child, and recognizes that any use of alcohol could jeopardize his ability to provide for his child. Overall, the evidence demonstrates successful rehabilitation on Applicant’s part. Admittedly, it is always difficult in these types of cases to say with 100% certainty that a person will not relapse or, in common parlance, fall off the proverbial wagon. Here, though, the evidence supports a finding that there is a low probability of similar issues recurring. More importantly, if Applicant were to have another slip-up, he has demonstrated the ability and intestinal fortitude to seek the necessary help. SAS ¶¶ 2.c(1) and 2.c(4) apply.

Moreover, as evidenced by Applicant’s truthful disclosure on the federal employment form and at hearing, he can be trusted to place his obligations to the Government over his own personal interests and concerns. Accordingly, after thoroughly considering the record evidence, I find that Applicant met his burden of persuasion and mitigated the CAC credentialing concerns raised by his past alcohol- related criminal conduct. His past conduct does not create a reasonable basis to believe that he presently poses a risk to people, property, or information systems.

Alcohol Abuse

SOR 3.a allege that Applicant’s DUIs raise the CAC credentialing concern set forth in SAS ¶ 4.a:

An individual’s abuse of alcohol may put people, property, or information systems at risk. Alcohol abuse can lead to the exercise of questionable judgment or failure to control impulses, and may put people, property, or information systems at risk, regardless of whether he or she is diagnosed as an abuser of alcohol or alcohol dependent. A person’s long-term abuse of alcohol without evidence of substantial rehabilitation may indicate that granting a CAC poses an unacceptable safety risk in a U.S. Government facility.

In assessing whether Applicant’s past alcohol abuse raises a reasonable basis to believe there is an unacceptable risk to people, property, or information systems, I considered the following pertinent disqualifying conditions and mitigating circumstances:

SAS ¶ 4.b(1): A pattern of alcohol-related arrests.

SAS ¶ 4.c(1): The individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an abuser of alcohol).

SAS ¶ 4.c(2): The individual is participating in counseling or treatment programs, has no history of previous treatment or relapse, and is making satisfactory progress.

SAS ¶ 4.c(3): The individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare. He or she has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in an alcohol treatment program. The individual has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.

For similar reasons already explained above, Applicant mitigated the alleged alcohol abuse credentialing concerns. Specifically, the mitigating conditions enumerated above apply, in full or in part, and together with the other favorable record evidence mitigate the credentialing concern raised by Applicant’s past alcohol-related issues. Applicant recognizes that he has an alcohol problem, has received treatment for his alcoholism, and is actively working to remain sober. Under the circumstances presented by the record, no reasonable basis exists to believe that Applicant currently poses an unacceptable risk to people, property, or information systems.

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, Employment Misconduct or Negligence: WITHDRAWN Subparagraphs 1.a and 1.b: Withdrawn

Paragraph 2, Criminal or Dishonest Conduct: FOR APPLICANT Subparagraphs 2.a – 2.d: For Applicant

Paragraph 3, Alcohol Abuse: FOR APPLICANT Subparagraph 3.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, granting Applicant CAC eligibility would not pose an unreasonable risk. CAC eligibility is granted.

__________________________ Francisco Mendez Administrative Judge

FOOTNOTES

1 Prehearing correspondence and the notice of hearing are attached to the record as Appellate Exhibits (App. Exh.) I and II, respectively. Apparently, the case was initially incorrectly processed, as the Government issued a file of relevant material (Exhibit 7). Subsequently, the case was forwarded to the hearing office for assignment to a judge for hearing. 2 Transcript (Tr.) 8-9, 12. Department Counsel also withdrew Exhibit 3 for identification, an Office of Personnel Management Records Request, and the remaining exhibits were renumbered. The Government’s revised exhibit list is attached to the record as App. Exh. III. 3 Tr. 55-57. 4 App. Exh. IV. 5 Tr. 25, 48-51; Exhibit C. 6 Tr. 23-32, 50-51; Exhibit 2; Exhibits E, F, G, I, J. 7 Tr. 33-48, 52; Exhibits 2 – 6; Exhibits D, H. 8 See Instruction, Glossary. See also CAC Case No. 15-00898 at 2-3 (App. Bd. Dec. 7, 2016) 9 See also CAC Case No. 15-06091 at 3 (App. Bd. Jan. 10, 2017) (Board’s past decisions “interpreting and analyzing” procedural guidance in DoDD 5220.6 should be followed by DOHA judges in CAC cases).