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ISCR Case 07-11963.h1 — CASE

ISCR Case 07-11963.h1granted

Case Headnote

ISCR Case No. 07-11963.h1

grantedJul 1, 2007· Hon. David M. White· hearing

Summary

A 37-year-old former Army Ranger communications warrant officer was granted a security clearance despite concerns under Guidelines F (Financial Considerations), G (Alcohol Consumption), and J (Criminal Conduct). The primary issue was a 2002 alcohol-related vehicular homicide conviction, which resulted in a passenger's death and a 24-month prison sentence. Additional concerns included a 1991 non-judicial punishment for underage alcohol consumption and a 1988 liquor law violation where he was neither arrested nor charged.

Financial concerns involved an erroneous overpayment of over $35,000 by the Army during his administrative separation and an original $560 medical bill reported in collection in 2007. The judge found that the applicant had resolved his financial issues.

The decision to grant the clearance was based on the applicant demonstrating rehabilitation. The vehicular homicide was deemed a one-time, out-of-character incident. He successfully completed court-ordered outpatient alcohol education and has abstained from alcohol since June 2007, showing a favorable prognosis.

Why the Applicant Prevailed

The applicant established that the vehicular homicide was a one-time incident completely out of character.
He successfully completed court-ordered outpatient treatment for alcohol education.
The applicant demonstrated a favorable prognosis and has abstained from alcohol since June 2007.

Conditions Referenced

Disqualifying

AG ¶ 31(a)raisedCriminal Conduct
AG ¶ 31(c)raisedCriminal Conduct
AG ¶ 31(f)raisedCriminal Conduct

Mitigating

AG ¶ 23(a)appliedAlcohol Consumption
AG ¶ 23(b)appliedAlcohol Consumption
AG ¶ 23(d)appliedAlcohol Consumption
AG ¶ 32(a)appliedCriminal Conduct
AG ¶ 32(d)appliedCriminal Conduct

Key Rule Quoted

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

Procedural Posture

SOR issuedFeb 29, 2008
Answer filedMar 12, 2008
Hearing heldMay 29, 2008
Decision dateAug 20, 2008

Cite For

Mitigation of Alcohol-related Incidents Under Guideline G
Successful Rehabilitation After a Serious Criminal Conviction Under Guideline J
Consideration of Time Elapsed Since Criminal Conduct in Security Clearance Determinations.

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 had resolved his financial issues, including a significant debt related to an overpayment by the Army and a medical bill that was incorrectly coded. The applicant's financial situation was deemed stable, with no current delinquent debts, leading to a favorable decision regarding his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	The Army mishandled his administrative separation and erroneously overpaid him more than $35,000. $35,000	For Applicant	Unspecified Financial	Admitted	—	(b) conditions largely beyond the person’s control; acted responsibly	Documented Debt Paid in Full
1.b	The other debt reported to be in collection on Applicant’s September 2007 CBR was an original $560 medical bill. $560	For Applicant	Medical Debt	Admitted	—	(b) conditions largely beyond the person’s control; acted responsibly	Documented Debt Paid in Full
1.c–1.e	3 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant			—	—	—

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 that the applicant had a history of alcohol-related incidents, including a vehicular homicide conviction in 2002. However, the applicant successfully mitigated the security concerns associated with his alcohol consumption by demonstrating rehabilitation and a favorable prognosis after completing treatment. The judge ruled in favor of the applicant on all allegations under Guideline G, ultimately granting the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant was convicted of alcohol-related vehicular homicide after a one-car accident in February 2002 in which his passenger was killed.	For Applicant	DUI or DWI Alcohol	Admitted	—	(a) so much time has passed / so infrequent that it is unlikely to recur (b) acknowledges the pattern and has established modified use or abstinence (d) completed treatment and aftercare with established abstinence/modified use	—
1.b	The applicant received minor non-judicial punishment for prohibited consumption of beer while underage in April 1991.	For Applicant	Alcohol Related Arrest	Admitted	—	(a) so much time has passed / so infrequent that it is unlikely to recur	—
1.c	The applicant was contacted by the local sheriff’s office for a liquor law violation in March 1988 but was neither arrested nor charged.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.d–1.f	3 sub-charges — specific text not stated in this decision (1 against, 1 for the applicant). (low confidence)	Mixed			—	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

Bond Amendment: the decision notes incarceration over one year or a dishonorable discharge — a statutory bar to SCI / Special Access / Restricted Data eligibility absent a waiver.

The judge found in favor of the applicant regarding the criminal conduct allegations. The applicant was convicted of vehicular homicide in 2002, which raised security concerns, but the judge determined that the applicant had rehabilitated and mitigated the concerns sufficiently to grant the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was convicted of committing alcohol-related vehicular homicide after a one-car accident in February 2002 in which his passenger was killed. He served 24 months in prison.	For Applicant	Homicide	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (b) pressured/coerced and unlikely to recur absent that pressure (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	—

Descriptive standardized rendering of a decided public case (Guideline J). 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. 07-11963 SSN: ------ ---- -------- ) ) Applicant for Security Clearance )

For Government: Melvin A. Howry, Esquire, Department Counsel For Applicant: Pro Se

August 20, 2008 ______________

STATEMENT OF CASE

______________

WHITE, David M., Administrative Judge:

Applicant was convicted of committing alcohol-related vehicular homicide after a one-car accident in February 2002 in which his passenger was killed. He served 24 months in prison. He established that this was a one-time incident completely out of character, and from which he is rehabilitated. The Army mishandled his administrative separation and erroneously overpaid him more than $35,000. He legitimately disputed this, and one other reportedly-delinquent debt, and resolved both. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

Applicant submitted his Security Clearance Application (SF 86), on January 16, 2006. On February 29, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines F, G, and J for Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive), and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant acknowledged receipt of the SOR on March 11, 2008. He answered the SOR in writing (Answer) on March 12, 2008, and requested a hearing before an Administrative Judge. DOHA received that request on March 17, 2008. Department Counsel was prepared to proceed on April 17, 2008, and the case was assigned to me on April 25, 2008. DOHA issued a notice of hearing on May 6, 2008, and I convened the hearing as scheduled on May 29, 2008. The Government offered exhibits (GE) 1 through 7, which were admitted without objection. Applicant testified on his own behalf, and submitted exhibits (AE) A through H, which were admitted without objection. DOHA received the transcript of the hearing (Tr.) on June 5, 2008.

FINDINGS OF FACT

In his answer to the SOR, Applicant admitted the factual allegations set forth in SOR ¶¶ 1.a, 1.b, 1.c (in part), 1.e, and 2.a. He denied the allegations in SOR ¶¶ 1.d, 1.f, 3.a, and 3.b. Applicant’s admissions, including those contained in his response to DOHA Interrogatories (GE 3), are incorporated in the following findings.

Applicant is a 37-year-old former Army Ranger communications warrant officer who is employed by a defense contractor. He was selected for promotion to warrant officer as an E-5 with only seven years of service, well ahead of his peers. He is one of only two communications warrant officers to ever complete Ranger training. He is married with four children. His wife does not work outside the home.

The allegation in SOR ¶ 1.c, that Applicant was contacted by the local sheriff’s office for a liquor law violation in March 1988 but was neither arrested nor charged, is technically correct. The implication that he committed the violation, however, is not correct. He was 17 years old at the time, and his older brother and some friends were drinking underage while their parents were away from home. The sheriff, who lived next door, came over to investigate the gathering of teenagers and discovered the older, but still underage, kids drinking. Applicant was not involved in the party, nor had he consumed any alcohol. Accordingly, he was neither arrested nor charged because he committed no violation. (Answer at 2; AE E at 2; Tr. at 64-65.)

In 1991, when beginning advanced individual training after competing basic training, Applicant drank beer in a barracks parking lot with some older soldiers he had befriended. He was not supposed to drink in that area, and was underage. He received minor non-judicial punishment under Article 15, UCMJ. (GE 1; Answer at 1; Tr. at 100- 102.)

On February 17, 2002, Applicant and a friend spent the afternoon at Applicant’s brother’s house. They drank some beer. That evening, Applicant and the friend drove back to Applicant’s house and took his other car, a new “Bullet Mustang” for a drive. His wife said she saw him briefly when he arrived home to change cars, and she did not consider him to be impaired at that point. Some 20 to 60 minutes after leaving the house, they had a very severe high-speed one-car accident in which the friend was killed and Applicant suffered a broken neck. The car was so badly damaged that responding police had difficulty determining which of the two men had been driving. At the conclusion of the investigation, on July 13, 2002, Applicant was arrested and charged with vehicular homicide. Laboratory test results, which he does not question, revealed that he had a blood-alcohol content (BAC) of .21 shortly after the accident. Since the accident, he has had no memory of anything that occurred after leaving his brother’s house, and has no idea how his blood alcohol level got so high. After a contested trial, he was convicted in March 2003 of vehicular homicide and subsequently sentenced to serve 36 months confinement. He was actually imprisoned for 24 months from May 2003 to May 2005, after which he was under Department of Corrections supervision until January 2007. On January 13, 2007, he received a Certificate and Order of Discharge, stating that he had met all requirements of his conviction and sentence, and restoring his civil rights other than those involving possession or transportation of firearms. (GE 3; GE 4 at 105, 114; Answer at 1; Tr. at 53-62, 102-108, 116.)

Applicant’s sentence also required him to be assessed and appropriately treated for any alcohol abuse or dependency issues. His initial assessment reflected him to be low-risk, and therefore ineligible for the prison treatment programs designed for more serious cases. When he left prison for work-release, he was again assessed and recommended to attend a six-month outpatient education course of treatment. He successfully completed that program on January 12, 2006. There is no evidence that he was ever diagnosed as an alcohol abuser or alcohol dependent. Accordingly, on motion of Department Counsel to conform the SOR to the evidence, I granted that motion and deleted SOR ¶ 1.f. Both Applicant’s case manager and the clinical director of the state- licensed treatment facility stated that his prognosis was considered very favorable. He was not directed to refrain from any future alcohol use. He convincingly testified that he had very much learned the error of his choice to drink and drive in February 2002, and has prioritized his activities and interests to prevent recurrence. Applicant first consumed beer at age 19 and subsequently, when duty and family commitments permitted, was a light to moderate social drinker of mostly beer until his accident in 2002. Between then and early 2007, he did not drink at all. Between January and June 2007, he drank two to four beers per week, on average. Because he has been busy with work, school, and family, and he felt no desire to do so, he has not drunk any alcohol since June 2007. (GE 4 at 103; Answer at 2-3; AE C; AE H; Tr. at 65-69, 72-79.)

When Applicant went to prison in May 2003, the Army mishandled and misplaced his administrative separation paperwork. As a result, his pay continued going to his bank account for about nine months after he used up his leave balance and should have been transferred into a non-pay status. When his pay was eventually stopped, he had received $35,668 to which he was not actually entitled. He initiated multiple attempts to have this indebtedness investigated and waived due to Government error. After exhausting these attempts to have the debt forgiven without success, he and the Treasury Department collection agent agreed to a lump-sum $30,000 settlement. He refinanced his home and paid the full settlement amount in January 2008. His April 9, 2008 credit bureau report (CBR) reflects this debt as a paid collection with a zero balance. (GE 6 at 2; Answer at 3, 6, 7; AE B; Tr. at 32-33, 42-46, 50-53, 83-96.)

The other debt reported to be in collection on Applicant’s September 2007 CBR was an original $560 medical bill. This issue arose when Applicant’s medical provider erroneously coded a bill to his medical insurance company, resulting in denial of the claim. Although he was working with the provider and the insurance company to resolve the confusion, the provider sent the bill to collections in June 2007. Once they did that, Applicant paid the bill the following month to clear his credit and continued to work to resolve the dispute. By mid-August, a properly coded bill had been paid by his insurance. Applicant worked for the next three months to convince all concerned of the mistake, and the collection agent returned his $560 in November 2007. It no longer appears on his CBR, the most recent of which reflects no delinquent debts, one auto loan for about $18,000 and only $158 in credit card debt. Applicant’s budget reflects a steady monthly surplus of income over expenses, and he remains current on all his financial obligations despite having served two years in prison from 2003 to 2005. He received financial counseling to assist with maintaining family solvency despite this severe income turbulence. (GE 5, GE 6, Answer at 4, 8; AE A; AE E at 2; Tr. at 28-31, 47-50, 80-83, 96-100.)

Applicant submitted many character letters, from current and former colleagues and supervisors. These letters attest to his outstanding character and integrity, his superior performance of highly classified work in the special forces, often in combat settings, and his successful rehabilitation and strong work performance since the 2002 vehicular homicide incident. He is working full time and has been diligently pursuing a bachelor’s degree since leaving active duty. He testified credibly that he is dedicated to continuing his service defending the national interests, and to never again risk all he holds dear through irresponsible behavior like his conduct on February 17, 2002. (AE D; AE E; AE F; AE G; Tr. at 76-79, 116-118.)

POLICIES

When evaluating an Applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 over-arching adjudicative goal is a fair, impartial and common sense decision. According to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in the context 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 “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7 of Executive Order 10865 provides that “Any determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”

A person applying for access to classified information seeks to enter 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 the applicant may deliberately or inadvertently fail to protect or 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.

Procedural Issues

The SOR cited facts that would have brought Applicant’s case under the prohibitions of the Smith Amendment (10 U.S.C. § 986), because he was convicted and sentenced to 36 months for vehicular homicide, of which he served 24 months. However, this section of the United States Code, which applied only to clearances granted by DoD, was repealed on January 28, 2008, when the President signed the National Defense Authorization Act for Fiscal Year 2008 into law. It was replaced by adding Sec. 3002 to 50 U.S.C. § 435b (the Bond Amendment), which applies throughout the Federal Government. Sec. 3002(c) of this new provision continues the requirement for disqualification, absent a meritorious waiver, for persons who were sentenced to and served imprisonment for more than a year. However, this disqualification only applies to prevent clearances that would provide access to special access programs (SAP), Restricted Data (RD), or any other information commonly referred to as “special compartmented information” (SCI). This statutory modification ends the former Smith Amendment requirement for a meritorious Secretarial waiver to grant or continue a regular, or “collateral,” security clearance to a person who has served more than a year on a criminal sentence. On June 20, 2008, subsequent to the issuance of the SOR and the hearing in this case, the Under Secretary of Defense (Intelligence) issued a memorandum providing interim guidance for implementation of the Bond Amendment. This memorandum set forth guidance for adjudicators to assess the potential application of the Bond Amendment to security clearance determinations and requirements for “Exception” identification of persons subject to its limitations in the Joint Adjudication Management System (JAMS) if a collateral clearance is granted. The granting of access to SAP, RD or SCI to such individuals requires a meritorious waiver under the terms of that memorandum. Such access is not at issue in this case, and accordingly the Bond Amendment was not addressed in either the SOR or at the hearing.

The repeal of the Smith Amendment also nullified the legal authority by which the Under Secretary of Defense for Intelligence modified the revised Adjudicative Guidelines (AG) that were approved by the President on December 29, 2005. When the Under Secretary promulgated the AG for use within DoD, on August 30, 2006, he added provisions reflecting the Smith Amendment. AG H (Drug Involvement), AG I (Psychological Conditions), and AG J (Criminal Conduct) were each modified, but only the latter guideline is involved in this case. It was modified by adding ¶¶ 31(f), 32(e), and footnotes 1 and 2. Because the President, in Executive Order 12968, intended to establish “a uniform Federal personnel security program” (Intro.), and required a “common set of adjudicative guidelines for determining eligibility for access to classified information” (Sec. 3.1(f).), the authority for these DoD modifications to the guidelines ended with the repeal of the Smith Amendment. The new statutory requirements are in effect and must be followed pending formal revision of the AG, but only the prohibition against granting clearances to unlawful drug users and addicts under AG H applies to “collateral” security clearances. Accordingly, the Smith Amendment-related provisions added to AG J have been repealed, and do not apply to the remaining proceedings in this case.

ANALYSIS

Guideline G, Alcohol Consumption

AG ¶ 21 expresses the security concern pertaining to alcohol consumption: “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.” AG ¶ 22 describes conditions that could raise a security concern and may be disqualifying. The disqualifying condition asserted by the Government in this case is: “(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 whether the individual is diagnosed as an alcohol abuser or alcohol dependent.” Applicant had one alcohol-related vehicular homicide conviction for an incident in February 2002. He also received minor non-judicial punishment for prohibited consumption of beer while underage and in a training status in April 1991. The Government has established security concerns under this guideline, shifting the burden of proof to Applicant to mitigate those concerns.

AG ¶ 23 provides conditions that could mitigate security concerns:

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

(b) 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 alcohol abuser);

(c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; and

(d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and 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.

Applicant established mitigation under ¶ 23(a) with respect to his two alcohol incidents, both individually and collectively. The 1991 incident was 17 years ago and occurred when he was young and not authorized to drink the beer provided to him by those who were authorized to drink it. Those conditions no longer exist. The tragic 2002 incident, in which Applicant was convicted of driving recklessly with a BAC of .21 resulting in a crash in which his friend died and he suffered a broken neck, occurred six and a half years ago and was a one-time exercise of terrible judgment. He suffered severe consequences, and the evidence established that any recurrence of such conduct is highly unlikely. With the passage of time and Applicant’s conduct in the interim, this one-time behavior no longer casts doubt on his current reliability, trustworthiness and good judgment. Although never diagnosed with alcohol dependence or alcohol abuse, he did acknowledge that the vehicular homicide was an alcohol- related exercise of terrible judgment, and took responsible steps to prevent recurrence. He successfully completed his court-ordered outpatient education treatment program, and completely abstained from alcohol from 2002 to early 2007. Both his case manager and the program’s clinical director gave him a very favorable prognosis upon completion of the program. For about six months in 2007 he engaged in very moderate and responsible consumption of beer. He has recently abstained from alcohol for more than a year – not because he was advised to abstain, but because his work, education and family priorities cause him to choose not to drink. These actions generate further mitigation of alcohol consumption security concerns under ¶¶ 23(b) and 23(d).

Guideline J, Criminal Conduct

AG ¶ 30 expresses the security concern pertaining to criminal conduct, “Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.” AG ¶ 31 describes conditions that could raise a security concern and may be disqualifying. Disqualifying conditions asserted by the Government were: “(a) a single serious crime or multiple lesser offenses;” and “(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.” (Tr. at 110.) Applicant admitted both the unauthorized drinking offense in 1991 and the vehicular homicide in 2002. These offenses do raise security concerns under the aforementioned disqualifying conditions. Applicant’s conviction and incarceration for 24 months would also implicate AG ¶ 31(f), “conviction in a Federal or State court, including a court-martial of a crime, sentenced to imprisonment for a term exceeding one year and incarceration as a result of that sentence for not less than a year.” As discussed above, however, this provision was added to the AG for purposes of DoD adjudications as a result of the now-repealed Smith Amendment. It was added because this disqualifying condition could not formerly be mitigated except through a Secretarial meritorious waiver. This is no longer the law, and this disqualifying condition is now redundant with the “single serious crime,” under AG ¶ 31(a).

AG ¶ 32 provides conditions that could mitigate criminal conduct security concerns. Applicant’s recent sobriety, completion of an outpatient treatment program, good work performance, pursuit of higher education and lifestyle changes establish mitigation under two of them: “(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, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.”

Applicant’s criminal conduct occurred many years ago, but his criminal history must be evaluated as a whole, not piece by piece. Although both incidents involved alcohol, they were very different in nature and scope. His 1991 prohibited consumption of a beer given to him by senior personnel reflected a lapse of discipline and was treated accordingly by his command. He subsequently proved that he learned his lesson by superior military performance leading to very early selection for promotion to chief warrant officer. The 2002 vehicular homicide incident was inexplicably out of character and unrepresentative of his otherwise responsible behavior and lifestyle. He has demonstrated sufficient rehabilitation to establish full confidence that such behavior is unlikely to recur, and no longer casts doubt on his reliability, trustworthiness and judgment.

Guideline F, Financial Considerations

AG ¶ 18 expresses the security concern pertaining to financial considerations:

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 information. An individual who is financially over- extended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts.

AG ¶ 19 describes conditions that could raise a security concern and may be disqualifying. Of these nine different disqualifying conditions, the Government asserted that one was raised by Applicant’s financial circumstances (Tr. at 111.): “(c) a history of not meeting financial obligations.”

The evidence shows that Applicant was reported to owe delinquent debts resulting from the Government’s overpayment of his salary while he was in prison and due to a medical billing error. Each debt was reported to be delinquent while he was actively and legitimately disputing whether he should be required to pay them. One was not a valid debt and, after he paid it anyway, his money was refunded. The other dispute was resolved against him, and he promptly settled that debt in full. This relatively brief history of not meeting two disputed financial obligations supports only minor, if any, security concerns under AG ¶ 19(c).

AG ¶ 20 provides conditions that could mitigate financial security concerns. Applicant established substantial mitigation under five of those conditions:

(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or good judgment;

(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, or a death, divorce or separation), and the individual acted responsibly under the circumstances; (c) the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control;

(d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; and

(e) 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.

Applicant’s debt to the Government arose due to the Army’s mishandling of his pay while he was in prison, and through no fault of his own. The circumstances were unique, totally out of his control, and bore no reflection on his trustworthiness or reliability. After utilizing all legitimate and reasonable means to seek a waiver of this indebtedness, he paid the debt when these efforts failed. The other debt arose due to medical billing errors which he took prompt steps to correct. Despite the illegitimacy of the debt, he paid it pending resolution once it was sent to collections. This payment was later reimbursed to him. Taken together, Applicant’s actions fully mitigate the minimal security concerns raised by his brief period of delinquent indebtedness. In fact, his present solvency and “current” status on his minimal outstanding debt shows remarkable financial responsibility, given his status as the sole provided for a family of six who spent two of the last five years in prison.

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 established by the record evidence. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant’s conduct of potential concern involved one very minor alcohol incident 17 years ago, two debts that he legitimately disputed and subsequently resolved, and his 2002 vehicular homicide offense. Only the latter incident provides a basis for any serious security concern. This incident arose when Applicant, a normally light-to-moderate drinker, became seriously intoxicated to the point that his BAC was .21. While he must have consciously chosen to drive on that occasion, his knowledgeable participation was under, for him, the unusual circumstances that his judgment was severely impaired. Although the consequences were about as bad as possible, this was Applicant’s only such incident in an otherwise highly responsible adulthood. In the six and a half years since the incident, he successfully completed all court-ordered sanctions and has demonstrated full rehabilitation and unerringly responsible behavior. There is no potential for pressure, exploitation, coercion, or duress, since this is a matter of public knowledge, and well- known to his employer and family. Applicant’s dedication to continued service in the interests of national defense through private employment, pursuit of higher education, remorse, and permanent behavioral changes support the conclusion that any recurrence of this one-time incident of irresponsible behavior is most unlikely.

Overall, the record evidence leaves me with no doubt as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has fully mitigated the security concerns arising from alcohol consumption, criminal conduct, and financial considerations.

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 G: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: For Applicant Subparagraph 1.f: Deleted on DC motion

Paragraph 2, Guideline J: FOR APPLICANT

Subparagraph 2.a: For Applicant

Paragraph 3, Guideline E: FOR APPLICANT

Subparagraph 3.a: For Applicant Subparagraph 3.b: 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. This determination does not include eligibility for access to SAP, RD, or SCI. Any such access would require Applicant to apply for, and be granted a meritorious waiver by the DOHA Director or Deputy Director under the Bond Amendment. DOHA administrative personnel are directed to ensure proper annotation of these limitations in Applicant’s JAMS file.

DAVID M. WHITE Administrative Judge