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ISCR 16-00364.h1: Guideline E security clearance hearing, denied (2017) · CASE

ISCR Case 16-00364.h1denied

Case headnote

ISCR Case No. 16-00364.h1

deniedJun 22, 2017· Hon. Marc E. Curry· hearing

Summary

A 31-year-old single man with a high school education and some college credits was denied a security clearance due to unmitigated financial considerations. The applicant faced concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct).

Specific allegations included a court-ordered restitution debt of $1,347 from an August 2011 arrest for stealing merchandise from his employer. Additionally, the applicant admitted to recreational marijuana use from 2002 to 2012, ranging from weekly to monthly, but stated he ceased use in 2012 and no longer associated with marijuana-using friends.

While the applicant successfully mitigated concerns related to personal conduct, criminal conduct, and drug involvement, he failed to mitigate the financial considerations. This was due to ongoing delinquent debts totaling approximately $17,000. Despite having a discretionary income of $2,000 per month, he made only minimal payments and did not provide evidence of a structured repayment plan or credit counseling. Consequently, the security clearance was denied.

Why the applicant prevailed

Applicant mitigated personal conduct security concerns due to the isolated nature of his past behavior and the time elapsed since the incident.
Applicant mitigated criminal conduct security concerns as the behavior was isolated and he has demonstrated successful rehabilitation through stable employment.
Applicant mitigated drug involvement security concerns as he has not used marijuana since 2012 and is now a respected employee.

Conditions referenced

Disqualifying

AG ¶ 19(a)raisedInability to Satisfy Debts
AG ¶ 19(c)raisedA History of Not Meeting Financial Obligations

Mitigating

AG ¶ 20(b)appliedConditions Beyond the Person's ControlMajority of debts relate to medical expenses incurred during periods without health insurance.
AG ¶ 20(c)rejectedCounseling for Financial ProblemsApplicant has never attended credit counseling.
AG ¶ 20(d)rejectedGood-faith Effort to Repay DebtsApplicant has made minimal payments and has not demonstrated a structured repayment effort.

Key rule quoted

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

Procedural posture

SOR issuedMay 27, 2016
Answer filedJun 8, 2016
Hearing heldApr 3, 2017
Decision dateJun 8, 2017Adjudicated under new AG effective after this date.

Cite for

Failure to Mitigate Financial Considerations Under Guideline F
Successful Mitigation of Personal Conduct Under Guideline E
Successful Mitigation of Criminal Conduct Under Guideline J

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 31: “Applicant is a 31-year-old single man.”
Delinquent debt cited: $17,000 (on a payment plan): “Since 2007, Applicant has incurred approximately $17,000 of delinquent debt, as alleged in the SOR.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found that the applicant mitigated the personal conduct concerns related to his 2011 arrest for stealing merchandise from his employer. The judge concluded that the conduct was isolated and unlikely to recur, resulting in a finding for the applicant under Guideline E. However, the overall security clearance was denied due to unresolved financial considerations.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's financial considerations raised significant security concerns, primarily due to a history of delinquent debts totaling approximately $17,000, largely stemming from medical expenses. Despite some mitigating factors related to the applicant's circumstances, the judge concluded that the applicant failed to adequately address or resolve these financial issues, resulting in a denial of the security clearance.

The sub-allegation breakdown is part of the Professional plan. See what it includes.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation

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's past marijuana use from 2002 to 2012 raised concerns under Guideline H. However, the applicant had not used marijuana in approximately five years and was a well-respected employee. The judge concluded that the applicant mitigated the drug involvement concerns, resulting in a finding for the applicant under this guideline.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's criminal conduct, specifically an arrest for stealing merchandise from his employer, was isolated and occurred nearly six years ago. The applicant successfully mitigated the criminal conduct security concern, leading to a ruling in favor of the applicant under Guideline J.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. 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 re: ) ) ) ISCR Case No. 16-00364 ) Applicant for Security Clearance )

For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se

06/22/2017 ______________

STATEMENT OF CASE

______________

Curry, Marc E., Administrative Judge:

Applicant mitigated the personal conduct, criminal conduct, and drug involvement security concerns, but failed to mitigate the financial considerations security concerns. Clearance is denied.

Statement of the Case

On May 27, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guidelines F, financial considerations, E, personal conduct, H, drug involvement, and J, criminal conduct. The DOD CAF took the action under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG) effective within the DOD on September 1, 2006.

On June 8, 2016, Applicant answered the SOR allegations, admitting all of the allegations except subparagraphs 1.band 1.d, and requested a hearing. The case was assigned to me on December 6, 2016. On February 13, 2017, the Defense Office of Hearings and Appeals issued a notice of hearing scheduling Applicant’s case for April 3, 2017. The hearing was held as scheduled. I received five Government exhibits (GE 1 – GE 5), and considered the testimony of Applicant and three character witnesses. The transcript (Tr.) was received on April 10, 2017.

While my decision was pending, Security Executive Agent Directive 4 was issued establishing National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligiblty to hold a sensitive position. The AG supersede the adjudicative guidelines implemented in September 2006 and are effective for any adjudication made on or after June 8, 2017. Accordingly, I have adjudicated Applicant’s security clearance eligibility under the new AG. Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case.

FINDINGS OF FACT

Applicant is a 31-year-old single man. He has a high school education and he has earned some college credits. For the past two years, he has worked for a defense contractor as an electronics mechanic assembler. (Tr. 14) He is highly respected on the job. According to his program manager, he has a strong work ethic and is “dedicated to getting the job done.” (Tr. 33) According to his immediate supervisor, he is “a very hard worker” who is trustworthy and responsible.” (Tr. 29)

Since 2007, Applicant has incurred approximately $17,000 of delinquent debt, as alleged in the SOR. All of these bills except the bill alleged in SOR subparagraph 1.b, as duplicated in SOR subparagraph 1.d, totaling $1,347, constitute medical expenses stemming from a 2007 motor cycle accident, a kidney stone removal in 2009, and an emergency appendectomy received between 2012 and 2014. Applicant had no health insurance when he suffered these medical problems. (Tr. 16) Thus far, he has made a partial payment towards the satisfaction of the debt alleged in SOR subparagraph 1.l, totaling $95. (Tr. 23) The remainder of the debts are outstanding. Applicant contends that many of the debts are unpaid because he has been unable to discern their identity, as they are unidentified in the SOR (subparagraphs 1.e, 1.f, 1.i, 1.j, and 1.m – 1.o).

Applicant has approximately $2,000 of monthly discretionary income. (Tr. 25) He deposits about $200 per month into a savings account. He has never attended credit counseling. (GE 2 at 6)

The debt alleged in SOR subparagraph 1.b, totaling $1,347, constitutes court- ordered restitution stemming from an arrest after Applicant’s employer caught him stealing merchandise (see also, SOR subparagraph 2.a and SOR subparagraph 4.a). The court ordered him to pay restitution through a two-year payment plan. (Tr. 23) The charge was initially a misdemeanor, but was later converted to a felony, per state law, after Applicant missed one of the restitution payments. (Tr. 23-24) Applicant contends that he satisfied the restitution payments in full by March 2015. (Tr. 24) He provided no supporting evidence. Applicant stole the merchandise because at the time, he had been going through “some tough times just trying to pay bills and feed [him]self.” (Tr. 20)

Applicant smoked marijuana recreationally from 2002 through 2012. His use ranged from weekly to monthly. He has not used marijuana since 2012 and no longer associates with his marijuana-using friends. (AE 2 at 5)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overall adjudicative goal is a fair, impartial, and commonsense decision. 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.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. 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 to obtain a favorable security decision.

A person who seeks access to classified 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. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. 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. Section 7 of EO 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline F, Financial Considerations

The security concerns about financial considerations are set forth in AG ¶ 18, as follows:

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 or sensitive information.

Applicant’s ongoing financial problems trigger the application of disqualifying conditions AG ¶ 19(a), “inability to satisfy debts,” and AG ¶ 19(c), “a history of not meeting financial obligations.”

The following mitigating conditions are potentially applicable:

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 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.

The majority of Applicant’s debts relate to medical expenses he incurred after a succession of health problems or injuries that occurred when he had no health insurance. The first prong of AG ¶ 20(b) applies. Conversely, Applicant has only made one payment towards the satisfaction of any of the debts, despite having $2,000 of monthly discretionary income. Applicant’s testimony that his debt payment efforts have been stymied by his inability to identify some of the creditors has merit, as multiple creditors alleged in the SOR are unidentified. However, this argument is undercut by the fact that the debts owed to identified creditors, totaling $6,500, are unpaid. Under these circumstances, neither the second prong of AG ¶ 20(b), nor the remaining mitigating conditions, listed above, apply. Applicant has not mitigated the financial considerations security concerns. Guideline J, Criminal Conduct

Under this guideline, “criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness.” Applicant’s arrest for stealing merchandise from his employer in August 2011 triggers the application of AG ¶ 31(b), ”evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.”

Applicant’s criminal conduct was isolated and occurred nearly six years ago. He has been working for his current employer for the past two years and he is highly regarded on the job. Under these circumstances, the following mitigating conditions under AG § 32 apply:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment, and

(d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement, apply.

Applicant has mitigated the criminal conduct security concern.

Guideline E, Personal Conduct

Under this guideline, “conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information.” (AG ¶ 15) Applicant’s 2011 arrest triggers the application of AG ¶ 16(d)(1), “untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information.” Applicant’s conduct was isolated. Moreover, “so much time has passed . . . that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.” (AG ¶ 17(c)) He has mitigated the personal conduct security concern.

Guideline H, Drug Involvement

Under this guideline, “the illegal use of a controlled substance . . . can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical and psychological impairment, and because it raises questions about a person’s ability or willingness to comply with laws and regulations.” (AG ¶ 25) Applicant’s use of marijuana from 2006 to 2012 triggers the application of AG ¶ 26(a) “any substance misuse.”

Applicant’s marijuana use occurred during his early to mid-twenties. He has not used marijuana in approximately five years. Currently, he is a well-respected employee who performs well on the job. Considering these circumstances, I conclude that AG ¶ 26(a), “the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment,” applies, and that Applicant has mitigated the drug involvement security concern.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must consider the totality of an applicant’s conduct and all relevant circumstances in light of the nine adjudicative process factors in AG ¶ 2(a).1 In evaluating the financial considerations security concern, I paid particular attention to the longstanding nature of Applicant’s financial problems and its nature and seriousness, as his financial problems once prompted him to steal from his employer. Considering this case in light of the whole-person concept, I conclude that Applicant has not mitigated the security concern.

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.o: Against Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagaph 2.a: For Applicant

Paragraph 3, Guideline H: FOR APPLICANT

Subparagraph 3.a: For Applicant Paragraph 4: Guideline J: FOR APPLICANT

Subparagraph 4.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________ Marc E. Curry Administrative Judge

FOOTNOTES

1 The factors under AG ¶ 2(a) 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.