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ISCR Case 16-00806.h1 — CASE

ISCR Case 16-00806.h1granted

Case Headnote

ISCR Case No. 16-00806.h1

grantedAug 7, 2017· Hon. Robert Robinson Gales· hearing

Summary

A 40-year-old senior SharePoint developer for a defense contractor was granted a security clearance despite concerns under Guideline F (Financial Considerations) and Guideline G (Alcohol Consumption). The applicant had several past-due debts and a DUI arrest.

Regarding financial issues, the applicant resolved multiple delinquent accounts. This included settling a bank credit card debt of $4,222.17 for $2,771.91 in three payments by December 2016, and another bank credit card debt of $4,219 for $2,110 in two payments by November 2016. A cellular telephone account with a $2,354.05 balance was settled for $1,177.05 by April 2017. Additionally, a state income tax lien for $1,557.75, stemming from a 2012 tax year error while he was overseas, was paid in full by October 2016. An outstanding bank account balance of $459 was removed from his credit reports after a dispute, though documentation was not provided. The applicant also completed financial counseling.

For alcohol consumption, the applicant was arrested for DUI on January 28, 2017. Following this, he voluntarily enrolled in and completed substance abuse education. The judge found that the applicant had taken significant steps to resolve his financial issues and demonstrated responsible behavior regarding alcohol consumption, ultimately granting the security clearance.

Why the Applicant Prevailed

Applicant resolved all but one of the alleged delinquent debts through settlements and payments.
He completed financial counseling and demonstrated control over his finances post-deployment.
The applicant voluntarily enrolled in and completed substance abuse education after his DUI arrest.

Conditions Referenced

Disqualifying

F.19.araisedInability to Satisfy Debts
G.19raisedAlcohol Consumption

Mitigating

F.20appliedThe Individual Has Taken Positive Steps to Reduce or Eliminate Financial Problems
G.20appliedThe Individual Has Successfully Completed a Treatment Program

Key Rule Quoted

“A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedAug 16, 2016
Answer filedOct 28, 2016
Hearing heldJun 22, 2017
Decision dateAug 7, 2017

Cite For

Mitigation of Financial Issues Under Guideline F
Successful Completion of Substance Abuse Education Under Guideline G
Demonstrating Responsible Behavior Post-dui Arrest

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant successfully mitigated the financial concerns raised under Guideline F. All identified debts were resolved through settlements or disputes, leading to a favorable decision for the applicant regarding his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	This refers to a bank credit card with a past-due and unpaid balance of $4,222.17 that was placed for collection, charged off, and sold to a debt purchaser. Applicant submitted a dispute to the credit reporting agency that was not upheld. In October 2016, Applicant reached out to the debt purchaser and they agreed to a settlement of $2,771.91 to be divided into three payments each of $923.97, commencing in October 2016 and ending in December 2016. Applicant made the agreed payments, and the balance remaining is zero. The account has been resolved. $4,277	For Applicant	Credit Card Debt	Denied	—	(b) conditions largely beyond the person’s control; acted responsibly	Documented Debt Paid in Full
1.b	This refers to a bank credit card with a past-due and unpaid balance of $4,219 that was placed for collection and charged off. In October 2016, Applicant reached out to the creditor and they agreed to a settlement of $2,110 to be divided into two lump-sum payments, commencing in October 2016 and ending in November 2016. Applicant made the agreed payments, and the balance remaining is zero. The account has been resolved. $4,219	For Applicant	Credit Card Debt	Denied	—	(b) conditions largely beyond the person’s control; acted responsibly	Documented Debt Paid in Full
1.c	This refers to a cellular telephone account with a past-due and unpaid balance of $2,354.05 that was placed for collection and sold, in turn, to two debt purchasers. At some point either in or before October 2016, Applicant reached out to the latest debt purchaser in an effort to resolve the account, but because the account information was not yet in that debt purchaser’s system, he was advised to call back in the future. In January 2017, the debt purchaser was finally prepared to proceed, and it offered to settle the account for $1,177.05. Applicant made his last agreed payment in April 2017, and the balance remaining is zero. The account has been resolved. $2,354	For Applicant	Unspecified Financial	Denied	—	(b) conditions largely beyond the person’s control; acted responsibly	Documented Debt Paid in Full
1.d	This refers to an unspecified type of bank account with an unpaid balance of $459 that was placed for collection. Applicant reached out to the creditor, but it had no records of any such account. He then disputed the account with the credit reporting agencies, and the account was eventually removed from his subsequent credit reports. Although Applicant indicated he would furnish documents associated with the disputes, he failed to do so. In the absence of such documentation, it is unclear if the account has been resolved. Nevertheless, considering the amount in issue, this account has minimal security significance. $459	For Applicant	Unspecified Financial	Denied	—	—	Claimed Debt Disputed with Creditor
1.e	This refers to Applicant’s failure to pay $1,380 in state income tax for the tax year 2012 – a year in which he was overseas in Iraq and the Philippines. His home of record is a state without an income tax, but the state in which his family resided was an income tax state, and it erroneously reflected Applicant as a resident. Applicant’s sister failed to pay the required tax. The unpaid balance was increased with penalty, interest, and court costs to $1,557.75, and a tax lien was filed in April 2015. In October 2016, rather than fighting with the state, Applicant paid the outstanding balance, and the tax lien was expunged. The account has been resolved. $1,557	For Applicant	Tax Unpaid	Denied	—	(b) conditions largely beyond the person’s control; acted responsibly	Documented Debt Paid in Full

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: grantedTREATMENT COMPLETED · FAVORABLE

The judge found in favor of the applicant regarding the alcohol consumption concerns. The applicant had a DUI incident but demonstrated positive steps towards rehabilitation and abstinence from alcohol following the incident, leading to a favorable outcome in the adjudication.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	The applicant was arrested for driving under the influence (DUI) on January 28, 2017.	For Applicant	DUI or DWI Alcohol	Denied	—	—	—

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: ) ) --- ) ISCR Case No. 16-00806 ) Applicant for Security Clearance )

For Government: Allison Marie, Esquire, Department Counsel For Applicant: Alan V. Edmunds, Esquire

08/07/2017 ______________

STATEMENT OF CASE

______________

GALES, Robert Robinson, Administrative Judge:

Applicant mitigated the security concerns regarding financial considerations and alcohol consumption. Eligibility for a security clearance and access to classified information is granted.

Statement of the Case

On January 14, 2015, Applicant applied for a security clearance and submitted an Electronic Questionnaire for Investigations Processing (e-QIP) version of a Security Clearance Application.1 On August 16, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to him, under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended and modified; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended and modified (Directive); and the Adjudicative Guidelines for Determining Eligibility For Access to Classified Information (December 29, 2005) applicable to all adjudications and other determinations made under the Directive, effective September 1, 2006.2 The SOR alleged security concerns under Guideline F (Financial Considerations), and detailed reasons why the DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The SOR recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

Applicant received the SOR on September 11, 2016. On October 28, 2016, he responded to the SOR and requested a hearing before an administrative judge. Department Counsel indicated the Government was prepared to proceed on March 9, 2017. The case was assigned to me on March 22, 2017. A Notice of Hearing was issued on May 3, 2017. However, pursuant to ¶ E.3.1.13 of the Directive, on May 11, 2017, the Defense Office of Hearings and Appeals (DOHA) issued an Amendment to the SOR to him. The Amendment to the SOR alleged security concerns under Guideline G (Alcohol Consumption). It is unclear when Applicant received the Amendment to the SOR as there is no receipt in the case file. On June 14, he responded to the Amendment to the SOR. I convened the hearing as scheduled on June 22, 2017.

During the hearing, 7 Government exhibits (GE) 1 through GE 7, 2 Administrative exhibits, and 19 Applicant exhibits (AE) A through AE S were admitted into evidence without objection. Applicant and one witness testified. The transcript (Tr.) was received on July 6, 2017. I kept the record open to enable Applicant to supplement it. He took advantage of that opportunity and timely submitted several documents, which were marked and admitted as AE T through AE X, without objection.3 The record closed on July 17, 2017.

FINDINGS OF FACT

In his Answer to the SORs, Applicant denied, with comments, all of the factual allegations pertaining to financial considerations (¶¶ 1.a. through 1.e.) of the SOR, as well as the one allegation pertaining to alcohol consumption (¶ 2.a.) of the Amendment to the SOR. Applicant’s comments 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 40-year-old employee of a defense contractor. He has been a senior SharePoint developer with the company since August 2014. He previously held similar positions with other employers since 2002. He is a May 1995 high school graduate, and he received a Bachelor of Arts degree in computer science in 2001. Applicant has never served in the U.S. military. He was granted a secret security clearance in August 2002. Applicant has never been married. He has no children.

Financial Considerations4

On August 14, 2009, Applicant gave a General Durable Power of Attorney to his older sister to manage his financial affairs during his anticipated long-term assignments to overseas locations.5 His overseas assignments from about 2008 until 2016 took him to hazardous war zones in Iraq and Afghanistan, as well as to Korea, the Philippines, and Japan on multiple occasions, generally for lengthy periods, sometimes exceeding 12 months at a time.6 He returned from his last overseas assignment in May 2016. During his periods of deployment, Applicant was earning up to $300,000 per year, and he was sending home $2,500 per month to cover the medical expenses for various family members. In late 2012 or early 2013, he briefly returned home to assist his bedridden grandmother with 24-hour live-in assistance. After his father passed away, he assisted his mother (and his disabled brother) financially to maintain her home. At about that same time, he experienced unspecified and unforeseen financial difficulties due to a failed upstart online business that basically wiped out his savings.7 In early 2015, Applicant learned that his sister had not been properly managing his finances, having been overwhelmed by her dual responsibilities of caring for her family members and managing his finances. He contacted his sister and his creditors to find out what had happened, but did little follow-up throughout the remainder of 2015 to resolve the issues. He returned to Afghanistan in January 2016, trusting that everything would be taken care of, but nothing changed. Upon returning to the United States in May 2016, Applicant took over control of his finances from his sister.

The SOR identified five purportedly delinquent accounts that had been placed for collection or charged off, as generally reflected by Applicant’s January 2015 credit report or his February 2016 credit report. Those debts total approximately $12,811. The current status of the five accounts, according to the credit reports, other evidence submitted by the Government and Applicant, and Applicant’s comments regarding same, is that four of the debts have been resolved by settlements and payments, and the fifth debt was successfully disputed and has been removed from his credit report. The debts are as follows.

(SOR ¶ 1.a.): This refers to a bank credit card with a past-due and unpaid balance of $4,222.17 that was placed for collection, charged off, and sold to a debt purchaser. Applicant submitted a dispute to the credit reporting agency that was not upheld. In October 2016, Applicant reached out to the debt purchaser and they agreed to a settlement of $2,771.91 to be divided into three payments each of $923.97, commencing in October 2016 and ending in December 2016.8 Applicant made the agreed payments, and the balance remaining is zero.9 The account has been resolved.

(SOR ¶ 1.b.): This refers to a bank credit card with a past-due and unpaid balance of $4,219 that was placed for collection and charged off. In October 2016, Applicant reached out to the creditor and they agreed to a settlement of $2,110 to be divided into two lump-sum payments, commencing in October 2016 and ending in November 2016.10 Applicant made the agreed payments, and the balance remaining is zero.11 The account has been resolved.

(SOR ¶ 1.c.): This refers to a cellular telephone account with a past-due and unpaid balance of $2,354.05 that was placed for collection and sold, in turn, to two debt purchasers. At some point either in or before October 2016, Applicant reached out to the latest debt purchaser in an effort to resolve the account, but because the account information was not yet in that debt purchaser’s system, he was advised to call back in the future.12 In January 2017, the debt purchaser was finally prepared to proceed, and it offered to settle the account for $1,177.05. Applicant made his last agreed payment in April 2017, and the balance remaining is zero.13 The account has been resolved.

(SOR ¶ 1.d.): This refers to an unspecified type of bank account with an unpaid balance of $459 that was placed for collection.14 Applicant reached out to the creditor, but it had no records of any such account.15 He then disputed the account with the credit reporting agencies, and the account was eventually removed from his subsequent credit reports.16 Although Applicant indicated he would furnish documents associated with the disputes, he failed to do so. In the absence of such documentation, it is unclear if the account has been resolved. Nevertheless, considering the amount in issue, this account has minimal security significance. (SOR ¶ 1.e.): This refers to Applicant’s failure to pay $1,380 in state income tax for the tax year 2012 – a year in which he was overseas in Iraq and the Philippines. His home of record is a state without an income tax, but the state in which his family resided was an income tax state, and it erroneously reflected Applicant as a resident. Applicant’s sister failed to pay the required tax. The unpaid balance was increased with penalty, interest, and court costs to $1,557.75, and a tax lien was filed in April 2015.17 In October 2016, rather than fighting with the state, Applicant paid the outstanding balance, and the tax lien was expunged.18 The account has been resolved.

Applicant completed financial counseling in October 2016.19 On July 6, 2017, Applicant submitted a Personal Financial Statement to reflect his monthly income; monthly expenses; or any monthly remainder that might be available for discretionary spending or savings. His net monthly income is $6,155.30, and his monthly expenses are $1,420, leaving a monthly remainder of $4,735.30.20 Applicant has no other delinquent accounts. Because Applicant has taken positive steps to reassert himself in controlling his finances and resolve all of his accounts, his finances are now under control.

Alcohol Consumption

As noted above, Applicant spent significant time overseas, and while he was in Iraq and Afghanistan – dry countries where alcohol is frowned upon or banned – he rarely consumed alcohol. He returned relatively briefly to the United States in December 2016, and in January 2017, he and some friends decided to go out to celebrate. He initially intended to go to a yard party, so he picked up a six-pack of beer. He consumed two beers. His plans were changed when some friends asked him to join them at a bar downtown. He put the empty beer bottles into the six-pack container in the back seat of his automobile. He met his friends, and over a several hour period, he consumed another two beers. When he finally departed the bar, he did not consider himself to be intoxicated. Shortly after leaving the bar, at about 2:30 a.m., on January 28, 2017, Applicant was stopped by a highway patrol trooper for what was called a “welfare stop” because Applicant’s vehicle had been observed leaving its lane on several instances. The trooper approached the vehicle and “observed several signs of impairment,” not otherwise described. Applicant consented to field sobriety tests – which Applicant felt he did well on – but the trooper said Applicant had “performed poorly.” It is unclear from the trooper’s characterization if “poorly” equates to “failed” or to some other standard. Applicant refused to submit to a breathalyzer test. He was arrested and charged with driving under the influence (DUI), a first degree misdemeanor;21 and open container of alcohol in motor vehicle, an infraction.22 No court hearing has yet been held.

There is no evidence that Applicant was ever required to attend alcohol-related counseling or therapy, or that he ever received a diagnosis or prognosis for any alcohol- related issues. Nevertheless, on his own initiative, on April 9, 2017, Applicant enrolled in, and successfully completed, the level 1 curriculum of substance abuse and driving education, a 12-hour course of instruction on the adverse effects of chemical use on driving ability.23 On May 27, 2017, he successfully completed the assigned number of DUI/Substance Abuse treatment hours.24

Applicant contends that since his arrest, he has abstained from the consumption of alcohol. On May 19, 2017, he voluntarily submitted a blood specimen for Phosphatidylethanol (PEth) Testing performed by liquid chromatography with tandem mass spectrometry. PEth testing provides a detection period of up to three or four weeks. Applicant’s analysis did not detect any alcohol in his body.25

Character References

A former coworker who has known Applicant for 18 years does not hesitate to recommend Applicant for a security clearance. Applicant often takes assignments that are hard to fill in areas that are less desirable to most people in his profession. He gives one hundred percent to anything that he does. He has always been reliable and can be counted on. Applicant’s coworker-friend-roommate has known him on a daily basis for over two years. Applicant is trustworthy, reliable, and level-headed. He is dedicated to the mission. A former loan officer at a financial institution that has financed loans for Applicant during the over 30 years that she has known him, described Applicant as hardworking, very dependable, trustworthy, and honest. She was aware when he financially assisted his family.26

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 security clearance.”27 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. The President has authorized the Secretary of Defense or his designee to grant an applicant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”28

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the guidelines in SEAD 4. In addition to brief introductory explanations for each guideline, the guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

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 commonsense 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.”29 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.30

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 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 classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Furthermore, “security clearance determinations should err, if they must, on the side of denials.”31

Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”32 Thus, nothing in this decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has or has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. 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 F, Financial Considerations

The security concern relating to the guideline for Financial Considerations is set out in ¶ 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. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage.

The guideline notes several conditions that could raise security concerns. Under ¶ 19(a), an “inability to satisfy debts” is potentially disqualifying. In addition, ¶ 19(b) may apply if there is an “unwillingness to satisfy debts regardless of the ability to do so.” Similarly, under ¶ 19(c), “a history of not meeting financial obligations” may raise concerns. “Consistent spending beyond one's means or frivolous or irresponsible spending, which may be indicated by excessive indebtedness, significant negative cash flow, a history of late payments or of non-payment, or other negative financial indicators” may raise concerns under ¶ 19(e). In addition, under ¶ 19(f), “failure to file or fraudulently filing annual Federal, state, or local income tax returns or failure to pay annual Federal, state, or local income tax as required” may raise concerns. Applicant failed to pay state income tax for the tax year 2012, and a lien was filed; and four accounts were placed for collection or charged off. ¶¶ 19(c), 19(e), and 19(f) apply. ¶¶ 19(a) and 19(b) do not apply.

The guideline also includes examples of conditions that could mitigate security concerns arising from financial difficulties. Under ¶ 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 ¶ 20(b), financial security 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, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances.” Evidence that “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” is potentially mitigating under ¶ 20(c). Similarly, ¶ 20(d) applies where the evidence shows “the individual initiated and is adhering to a good- faith effort to repay overdue creditors or otherwise resolve debts.”33 In addition, ¶ 20(e) may apply if “the individual has a reasonable basis to dispute the legitimacy of the past- due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue.” In those instances where “the individual has made arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance with those arrangements,” ¶ 20(g), may apply.

I have concluded that ¶¶ 20(a), 20(b), 20(c), 20(d), and 20(g) apply, and ¶ 20(e) minimally applies. The nature, frequency, and recency of Applicant’s financial difficulties make it difficult to conclude that it occurred “so long ago” or “was so infrequent.” His financial situation was caused by his sister’s failure to manage his financial affairs, especially while he was overseas, and her failure was largely beyond Applicant’s control. Contrary to Department Counsel’s arguments that Applicant could have taken more timely action to resolve his debts, the fact is that Applicant was generally overseas – for lengthy periods in the war zones of Iraq and Afghanistan - with somewhat limited access to necessary documentation, communication, or free time to do so. Applicant did not ignore his financial situation. Upon returning to the United States in May 2016, Applicant took control of his finances from his sister, and sought guidance. He contacted his creditors, disputed one account that was later removed from his credit reports, and he established repayment agreements and paid the agreed balances. He paid off his state income taxes rather than disputing the state’s records. He has no other delinquent debts.

Clearance decisions are aimed at evaluating an applicant’s judgment, reliability, and trustworthiness. They are not a debt-collection procedure. The guidelines do not require an applicant to establish resolution of every debt or issue alleged in the SOR. An applicant needs only to establish a plan to resolve financial problems and take significant actions to implement the plan. There is no requirement that an applicant immediately resolve issues or make payments on all delinquent debts simultaneously, nor is there a requirement that the debts or issues alleged in an SOR be resolved first. Rather, a reasonable plan and concomitant conduct may provide for the payment of such debts, or resolution of such issues, one at a time.

It is clear that Applicant now has funds remaining at the end of each month for discretionary use or savings, and there is evidence to reflect that Applicant’s financial problems are under control. When confronted with the issues that caused his financial problems, Applicant acted responsibly by seeking information from his sister, and he approached the creditors or collection agents.34 Applicant’s actions under the circumstances no longer cast doubt on his current reliability, trustworthiness, and good judgment.35

Guideline G, Alcohol Consumption

The security concern relating to the guideline for Alcohol Consumption is set out in ¶ 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.”

The guideline notes several conditions that could raise security concerns. Under ¶ 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,” is potentially disqualifying. Similarly, under ¶ 22(b), “alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, regardless of whether the individual is diagnosed with alcohol use disorder,” may raise security concerns. In addition, under ¶ 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,” is potentially disqualifying. Under ¶ 22(d), a “diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder,” may raise security concerns. If there is “the failure to follow treatment advice once diagnosed,” ¶ 22(e) may be of significance. ¶ 22(f) is potentially disqualifying if there is “alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder.” The “failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence,” may raise security concerns. Applicant was arrested and charged with DUI, a misdemeanor, and open container of alcohol in motor vehicle, an infraction. No court hearing has yet been held. ¶ 22(a) applies. None of the other disqualifying conditions apply.

The guideline also includes examples of conditions that could mitigate security concerns arising from alcohol consumption. Under ¶ 23(a), the disqualifying condition may be mitigated if “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.” Also, under ¶ 23(b), it is potentially mitigating if “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.” Where “the individual is participating in counseling or a treatment program, has no previous history of treatment and relapse, and is making satisfactory progress in a treatment program,” ¶ 23(c) may arise. In addition, ¶ 23(d) may apply where “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.”

I have concluded that ¶¶ 23(a), 23(b), 23(c), and 23(d) all partially apply. There is no evidence: (a) that Applicant ever appeared intoxicated or impaired at work; (b) of any alcohol-related diagnosis by a duly qualified medical or mental health professional; (c) of any required alcohol-related treatment requirements; or (d) of a previous history of maladaptive alcohol use. The only alcohol-related incident involving police authorities or judicial authorities was the one in January 2017. Although the evidence is clear that Applicant was arrested and charged as set forth above, there are certain aspects of the facts leading up to the charges that are open to interpretation. There is no description as to the “several signs of impairment” found by the arresting trooper. There is no mention in the incident report of any odor of alcohol being detected, or red eyes, flushed face, slurred speech, or unsteady gait. While Applicant’s performance in the field sobriety tests was described as “poorly,” there is no indication that Applicant actually failed the tests. In the absence of such factors, it is easy to conclude that the signs of impairment were merely the three mentioned in the report: alcohol containers in the back seat, the vehicle leaving its lane on several instances, and a poor sobriety test performance. While that incident is relatively recent, as the only such incident, it does not establish a pattern of maladaptive alcohol use. To Applicant’s credit, he became pro-active when he was confronted with his current alcohol-related situation. He successfully completed two different alcohol-related education courses. He abstained from any further alcohol consumption. To emphasize and prove his abstinence, Applicant went through the PEth protocol. Applicant’s consumption of alcohol over the past decade has apparently been minimal at most. Since the incident, he has abstained. Under the circumstances, based on the available evidence, I conclude that this incident is aberrant behavior that is inconsistent with Applicant’s normal conduct, and it does not cast doubt of Applicant’s current reliability, trustworthiness, or good judgment.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance 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 SEAD 4, App. A, ¶ 2(d):

(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 SEAD 4, App. A, ¶ 2(c), the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Moreover, I have evaluated the various aspects of this case in light of the totality of the record evidence and have not merely performed a piecemeal analysis.36

There is some evidence against mitigating Applicant’s conduct. Applicant failed to pay his state income tax for the tax year 2012, and a lien was filed; and four accounts were placed for collection or charged off. He was arrested and charged with DUI and open container of alcohol in a motor vehicle in January 2017.

The mitigating evidence under the whole-person concept is simply more substantial. There is no evidence of misuse of information technology systems, or mishandling protected information. Applicant is a well-respected individual who often takes assignments that are hard to fill in areas that are less desirable to most people in his profession – like combat zones in Iraq and Afghanistan. His colleagues and friends consider him to be trustworthy, reliable, and honest. His financial situation was caused by his sister’s failure to manage – under a power of attorney - his finances, especially while he was serving overseas. He eventually took control of his finances and resolved the delinquent accounts, either by payments or, in one instance, by a successful dispute. Applicant has no other delinquent accounts. He has a substantial monthly remainder, and his financial situation is under control. The incident involving alcohol appears to be aberrant conduct in that Applicant’s consumption of alcohol over a decade has been minimal at most, and it is not indicative of the true Applicant. There is no evidence of a continuing or current alcohol problem.

The Appeal Board has addressed a key element in the whole-person analysis in financial cases stating:37

In evaluating Guideline F cases, the Board has previously noted that the concept of “meaningful track record” necessarily includes evidence of actual debt reduction through payment of debts. However, an applicant is not required, as a matter of law, to establish that he [or she] has paid off each and every debt listed in the SOR. All that is required is that an applicant demonstrate that he [or she] has “. . . established a plan to resolve his [or her] financial problems and taken significant actions to implement that plan.” The Judge can reasonably consider the entirety of an applicant’s financial situation and his [or her] actions in evaluating the extent to which that applicant’s plan for the reduction of his outstanding indebtedness is credible and realistic. See Directive ¶ E2.2(a) (“Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.”) There is no requirement that a plan provide for payments on all outstanding debts simultaneously. Rather, a reasonable plan (and concomitant conduct) may provide for the payment of such debts one at a time. Likewise, there is no requirement that the first debts actually paid in furtherance of a reasonable debt plan be the ones listed in the SOR.

Applicant has demonstrated a positive track record of debt reduction and elimination efforts. Overall, the evidence leaves me without questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all of these reasons, I conclude Applicant has mitigated the security concerns arising from his financial considerations and his alcohol consumption. See SEAD 4, App. A, ¶ 2(d)(1) through AG ¶ 2(d)(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: FOR APPLICANT

Subparagraphs 1.a. through 1.e: For Applicant Paragraph 2, Guideline G: FOR APPLICANT

Subparagraph 2.a.: For Applicant

CONCLUSION

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

________________________ ROBERT ROBINSON GALES Administrative Judge

FOOTNOTES

1 GE 1 (e-QIP, dated January 14, 2015). 2 Effective June 8, 2017, by Directive 4 of the Security Executive Agent (SEAD 4), dated December 10, 2016, National Security Adjudicative Guidelines for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position, were established to supersede all previously issued national security adjudicative criteria or guidelines. Accordingly, those guidelines previously implemented on September 1, 2006, under which this security clearance review case was initiated, no longer apply. In comparing the two versions, there is no substantial difference that might have a negative effect on Applicant in this case.

3 Because of an apparent miscommunication in Applicant’s attorney’s office, some AEs were marked and admitted at the hearing, but other AEs were subsequently marked by Applicant’s attorney’s office using the same letter designations. In this regard, to avoid remarking each AE, I have merely remarked certain AEs and placed them with the AEs formally marked by Applicant’s attorney. I noted below each such remarking. 4 General source information pertaining to the financial accounts discussed below can be found in the following exhibits: GE 1, supra note 1; GE 2 (Combined Experian, TransUnion, and Equifax Credit Report, dated January 27, 2015); GE 3 (Equifax Credit Report, dated February 18, 2016); and Applicant’s Answer to the SOR, dated October 28, 2016.

5 AE V (General Durable Power of Attorney, dated August 14, 2009).

6 AE D (Resume, undated); AE X (List of Residences – Last 10 years, undated).

7 GE 1, supra note 1, at 51-54; AE B (Biography, undated); Tr. at 95-98. 8 GE 2, supra note 4, at 5; GE 3, supra note 4, at 1; AE E (Letter, dated October 25, 2016); AE O (Experian Credit Report, dated June 8, 2017), at 17.

9 AE K (Preauthorized Debit, dated October 30, 2016); AE E (formerly AE T)(Letter, dated June 3, 2017).

10 GE 2, supra note 4, at 6; GE 3, supra note 4, at 2; AE L (Letter, dated October 31, 2016).

11 AE L (Preauthorized Debits, various dates); AE L (formerly AE U)(Letter, dated June 9, 2017).

12 GE 2, supra note 4, at 9; GE 3, supra note 4, at 2; Applicant’s Answer to the SOR, supra note 4, at 1-2.

13 AE M (Letter, dated January 24, 2017); AE M (formerly AE V)(Letter, dated June 2, 2017); AE M (Preauthorized Debit, dated February 1, 2017).

14 GE 3, supra note 4, at 2.

15 Applicant’s Answer to the SOR, supra note 3, at 1-2; Tr. at 36.

16 Tr. at 38; See AE G (Equifax Credit Report, dated September 19, 2016); AE O, supra note 8. 17 GE 3, supra note 4, at 3

18 AE N (Tax Lien Expungement, dated October 13, 2016); AE H (Letter, undated).

19 AE F (Certificate of Counseling, dated October 18, 2016).

20 AE T (Personal Financial Statement, dated July 6, 2017). 21 GE 5 (Criminal Report Affidavit and DUI Uniform Traffic Citation, dated January 28, 2017); GE 4 (Case Summary, dated May 11, 2017).

22 GE 7 (Uniform Traffic Citation, dated January 28, 2017); GE 6 (Case Summary, dated May 11, 2017).

23 AE Q (Certificate of Successful Completion, dated March 14, 2017).

24 AE P (Certificate of Completion, dated May 27, 2017); AE R (DUI Class Receipts, various dates).

25 AE S (Patient Report, dated May 26, 2017).

26 AE A (Character References, various dates); Tr. at 29-31.

27 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 28 Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified.

29 “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).

30 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 31 Egan, 484 U.S. at 531.

32 See Exec. Or. 10865 § 7. 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 “Even if Applicant’s financial difficulties initially arose, in whole or in part, due to circumstances outside his [or her] control, the Judge could still consider whether Applicant has since acted in a reasonable manner when dealing with those financial difficulties.” ISCR Case No. 05-11366 at 4 n.9 (App. Bd. Jan. 12, 2007) (citing ISCR Case No. 99- 0462 at 4 (App. Bd. May 25, 2000); ISCR Case No. 99-0012 at 4 (App. Bd. Dec. 1, 1999); ISCR Case No. 03-13096 at 4 (App. Bd. Nov. 29, 2005)). A component is whether he or she maintained contact with creditors and attempted to negotiate partial payments to keep debts current.

35 See ISCR Case No. 09-08533 at 3-4 (App. Bd. Oct. 6, 2010). 36 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). 37 ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008) (internal citations omitted).