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ISCR Case 07-13434.h1 — CASE

ISCR Case 07-13434.h1denied

Case Headnote

ISCR Case No. 07-13434.h1

deniedJan 30, 2009· Hon. Joan Caton Anthony· hearing

Summary

A 52-year-old federal contractor inspector was denied a security clearance due to concerns under Guidelines E (Personal Conduct), F (Financial Considerations), G (Alcohol Consumption), and J (Criminal Conduct). The denial stemmed from a history of criminal conduct, alcohol involvement, and unresolved financial issues.

Specifically, the applicant had a lengthy criminal history, including multiple arrests for Driving Under the Influence (DUI) and a 2007 arrest for Driving on a Suspended License, Driving While Intoxicated, and DWI Subsequent Offense. Despite these incidents, the applicant admitted to ongoing habitual alcohol consumption. Furthermore, she had an outstanding delinquent debt exceeding $17,000 from an automobile repossession dating back to 2004, for which she had made no arrangements to satisfy.

The denial was based on the applicant's continued alcohol consumption despite her history of alcohol-related offenses, her lengthy criminal history, and her unresolved financial delinquencies without a demonstrated plan for resolution. The applicant failed to show rehabilitation or a commitment to addressing her financial issues, leading to the conclusion that her conduct posed significant security concerns.

Why the Applicant Was Denied

The applicant has a lengthy criminal history involving multiple DUI offenses and driving on a suspended license.
The applicant continues to consume alcohol despite her history of alcohol-related offenses.
The applicant has unresolved financial delinquencies exceeding $17,000 and has not demonstrated a plan to address these debts.

Conditions Referenced

Disqualifying

AG JraisedCriminal Conduct
AG GraisedAlcohol Involvement
AG FraisedFinancial Considerations
AG EraisedPersonal Conduct

Key Rule Quoted

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

Procedural Posture

SOR issuedMay 12, 2008
Answer filedMay 22, 2008Applicant requested case determination on the record.
Hearing held—No hearing was held.
Decision dateJan 30, 2009

Cite For

Denial Based on Ongoing Alcohol-related Offenses Under Guideline G
Impact of Unresolved Financial Issues on Security Clearance Under Guideline F
Criminal Conduct History Affecting Reliability and Trustworthiness 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.

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline E, Personal Conduct. The applicant's failure to disclose multiple arrests related to alcohol and driving offenses raised significant concerns about her reliability and trustworthiness. The judge concluded that the applicant did not mitigate the personal conduct concerns.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
4.a–4.e	3 sub-charges — specific text not stated in this decision (2 against, 1 for the applicant).	Mixed		Criminal Conduct		—	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found that the applicant had significant financial issues, including a delinquent debt of over $17,000 from an automobile repossession, which she failed to address. The applicant's financial difficulties raised security concerns under Guideline F, and the judge ruled against her on the financial allegations, concluding that she did not provide sufficient evidence to mitigate these concerns.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
3.a	Applicant accumulated a substantial delinquent debt of over $17,000, which resulted from the repossession of an automobile. Since 2004, she has allowed the debt to remain unpaid, and she has failed to make arrangements to satisfy the debt. $17,095	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—

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

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on both allegations under Guideline G, indicating concerns regarding her alcohol consumption and related behavior. The applicant's history of multiple DUI arrests and continued alcohol use raised significant doubts about her reliability and judgment, leading to the denial of her security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	The applicant was arrested for Driving Under the Influence (DUI) on multiple occasions.	Against Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—
2.b	The applicant has a pattern of habitual alcohol consumption despite multiple arrests for DUI.	Against Applicant	Binge or Intoxication Pattern	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on all allegations under Guideline J, Criminal Conduct, citing a history of multiple arrests for driving under the influence and related offenses. The applicant's criminal behavior raised significant concerns regarding her reliability and trustworthiness, leading to the denial of her security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a–1.e	5 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		—		—	—	—
1.f	On or about October 31, 2007, you were arrested by [deleted] and charged with Driving on a Suspended License, Driving While Intoxicated, and DWI Subsequent Offense.	Against Applicant	DUI or DWI Criminal	—	Admitted	—	—	—

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. 07-13434 ) ) Applicant for Security Clearance )

For Government: Gina L. Marine, Esquire, Department Counsel For Applicant: Pro Se

January 30, 2009 ______________

STATEMENT OF CASE

______________

ANTHONY, Joan Caton, Administrative Judge:

After a thorough review of the case file, pleadings, and exhibits, I conclude that Applicant failed to rebut or mitigate the Government’s security concerns under Adjudicative Guideline (AG) J, Criminal Conduct; AG G, Alcohol Involvement; AG F, Financial Considerations; and AG E, Personal Conduct. Her eligibility for a security clearance is denied.

Applicant completed and certified an Electronic Questionnaire for Investigations Processing (e-QIP) on November 14, 2006. On May 12, 2008, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing the security concerns under AG J, Criminal Conduct; AG G, Alcohol Involvement; and AG F, Financial Considerations. 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.

On May 22, 2008, Applicant answered the SOR in writing, provided additional explanations and attachments, and requested that her case be determined on the record in lieu of a hearing. On June 23, 2008, the Government issued Applicant an amended SOR, detailing additional security concerns under AG E, Personal Conduct. Applicant received the amended SOR on June 27, 2008. She answered the amended SOR in writing on July 1, 2008. On November 17, 2008, the Government compiled its File of Relevant Material (FORM). The FORM contained documents identified as Items 1 through 15. By letter dated November 17, 2008, DOHA forwarded copy of the FORM to Applicant, with instructions to submit any additional information and/or objections within 30 days of receipt. Applicant received the FORM on November 21, 2008. Her response was due on December 21, 2008. She did not file additional information within the required time period. On January 21, 2009, the case was assigned to me for a decision.

FINDINGS OF FACT

The SOR contains six allegations of disqualifying conduct under AG J, Criminal Conduct (SOR ¶¶ 1.a. through 1.f.); two allegations of disqualifying conduct under AG G, Alcohol Involvement (SOR ¶ 2.a. and 2.b.); and one allegation of disqualifying conduct under AG F, Financial Considerations (SOR ¶ 3.a.). The amended SOR contains five allegations of disqualifying conduct under AG E, Personal Conduct (Amended SOR ¶¶ 4.a(i), 4.a(ii), 4.a(iii), 4.b(i), and 4.c.). In her Answer to the SOR, dated May 22, 2008, Applicant admitted all nine allegations. In her Answer to the Amended SOR, she denied the five AG E aIlegations. (Item 1; Item 4; Item 5; Item 7.)

Applicant is 52 years old, divorced, and employed as an inspector by a federal contractor. She is a high school graduate, and she attended college for about one academic year. Before becoming a government contractor, she served as a military reservist for approximately seven years. She has not previously held a security clearance. (Item 8; Item 10.)

In about October 1991, Applicant was arrested and charged with Driving Under the Influence. There is no evidence in the record of the disposition of this charge. Approximately three months later, in January 1992, she was arrested and charged again with Driving Under the Influence of Alcohol. In May 1992, she was found guilty of the January 1992 offense. She was fined $1,150, sentenced to 20 days confinement, and sentenced to 12 months probation. (Item 9; Item 11.)

In May 1996, Applicant was arrested and charged with Driving While License Suspended or Revoked. In June 1996, she was found guilty of the offense and fined $500. In July 2000, Applicant was arrested and charged with Driving Under the Influence of Alcohol and Driving While License Suspended. In December 2000, she was found guilty on both counts. She was fined $500 and required to pay court fees. The court sentenced her to school and community service.1 She was placed on probation for 11 months and 28 days. (Item 9; Item 11.)

In February 2004, Applicant was arrested and charged with Driving Under the Influence of Prescribed Medication. She was found guilty, fined, and sentenced to one year of probation. On October 31, 2007, Applicant was arrested and charged with Driving on a Suspended License, Driving While Intoxicated, and DWI Subsequent Offense. In her May 22, 2008 answer to the SOR, Applicant denied knowing that her license was suspended when she was arrested on October 31, 2007. However, in an affidavit she signed under penalty of perjury on March 7, 2008, Applicant stated that when she was arrested on October 31, 2007, “[she]I knew that [her] license was suspended and knew that driving during this time was an arrestable offense.” (Item 9 at 24; Item 12.)

Applicant continues to drink alcohol. She estimates that she drinks 4 or 5 cans of beer on weekends. She intends to drink alcohol on occasion in the future. (Item 10 at 6- 7.)

In response to DOHA interrogatories, Applicant admitted she had received medical treatment or counseling due to her use of alcohol. In 2002 or 2003, when she was suffering from depression, she concluded she was drinking too much alcohol. She sought medical assistance and was referred to counseling. A medical doctor prescribed antidepressant medication for her, and she met with a counselor every two weeks. Applicant thought she was being treated for depression and not alcohol abuse. She is no longer under medical care for depression or alcohol abuse. Subsequently, in late 2007, she took a prescribed medication for anxiety attacks. (Item 7 at 5; Item 10 at 8.)

Applicant’s automobile was repossessed in either 2003 or 2004. She owes the creditor approximately $17,095 for the remainder owed after the automobile was sold by the creditor. Her credit report of December 2006 shows that the creditor reported the unpaid balance of $17,095 as a loss in March 2004. Applicant admitted the debt. She has no plan in place to pay or settle this delinquency. Applicant reports a net monthly income of $1,676 and fixed monthly expenses of $986. Her net monthly remainder is projected to be $283. (Item 4 at 5; Item 10 at 34; Item 15 at 7.)

In response to interrogatories from DOHA, Applicant provided a monthly budget which showed her plan to pay a total of $406 to nine creditors. Applicant’s credit reports of October 19, 2007 and December 13, 2006 revealed she was responsible for seven additional accounts in collection status and one civil judgment. These delinquencies

1 The record does not specify what kind of “school” Applicant was directed to attend, and it does not totaled approximately $4,000 and were not alleged on the SOR. (Item 10 at 9; Item 14; Item 15.)

Applicant completed and certified an e-QIP on November 14, 2006. Question 23don the e-QIP reads as follows: “Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?” In response to Question 23d, Applicant answered “yes” and listed a 2004 arrest for Driving Under the Influence of Prescribed Medication. She failed to list or disclose that she had been arrested in October 1991 and charged with Driving Under the Influence. She also failed to list or disclose that in January 1992 and in July 2000, she had been arrested and charged with Driving Under the Influence of Alcohol.

Question 25 on the e-QIP reads: “Your Use of Alcohol: In the last 7 years, has your use of alcoholic beverages (such as liquor, beer, wine) resulted in any alcohol- related treatment or counseling (such as for alcohol abuse or alcoholism)?” Applicant answered “no” to Question 25. She did not disclose that in 2002 or 2003, she sought and received medical treatment or counseling because of depression and increased use of alcohol.

The SOR allegation at ¶1.freads as follows: “On or about October 31, 2007, you were arrested by [deleted] and charged with Driving on a Suspended License, Driving While Intoxicated, and DWI Subsequent Offense.” In her Answer to the SOR, Applicant admitted the allegation at ¶ 1.f. She then provided the following additional explanation: “Definitely poor judgment on my part. However, I did not know my license was suspended, in the previous offense nothing was said, I realized at that time that it was expired but not suspended. I have not been charged with this yet . . . . My court date is 29 May 08.” Applicant failed to disclose that, according to her affidavit of March 7, 2008, she knew when she was arrested on October 31, 2007 that her driver’s license was suspended and, further, that she knew it was an arrestable offense to operate a motor vehicle on a suspended license. (Item 4 at 4; Item 9 at 24.)

Applicant submitted three letters of character reference. Her current supervisor praised her demeanor and personality and stated that he found her to be “dedicated, reliable and trustworthy.” A co-worker noted her “good judgment and mature outlook.” The individual who trained Applicant for her current responsibilities stated he “consistently found [Applicant] to be a conscientious, dutiful and dependable associate.” (Item 4, 5-7.)

POLICIES

When evaluating an Applicant’s suitability for a security clearance, an 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, the administrative judge applies these guidelines 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(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. 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 applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining 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 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.

Section 7 of Executive Order 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 J, Criminal Conduct

Under the Criminal Conduct guideline “[c]riminal 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 ¶30. Applicant admits a criminal history that spans 16 years. In 1991, 1992, 2000, and 2007, she was arrested for driving under the influence of alcohol. In 2004, she was arrested for a drug-related driving offense. In 1996, 2000, and 2007, she was arrested for three suspended license offenses, two of which occurred when she was also charged with Driving Under the Influence. This behavior raises concerns under AG ¶ 31(a) and AG ¶ 31(c).2

Two Criminal Conduct mitigating conditions might apply to Applicant’s case. If “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,” AG ¶ 32(a) might apply. If “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 involvement,” then AG ¶ 32(d) might apply.

The record demonstrates that Applicant’s criminal behavior, which began in 1991 and has continued to at least 2007, is, therefore, recent. A supervisor, co-worker, and trainer provided letters of character reference indicating they thought she was trustworthy and reliable. However, Applicant has not yet established a record of sobriety to assure that her long-standing criminal behavior related to alcohol use is unlikely to recur. Her criminal behavior related to her alcohol use continues to cast doubt on her reliability, trustworthiness, and good judgment. I conclude that neither AG ¶ 32(a) nor AG ¶ 32 (d) applies.

Guideline G, Alcohol Consumption

Guideline G, Alcohol Consumption, applies in this case to a determination of eligibility for access to classified information. Under Guideline G, “[e]xcessive 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.”

I have considered all of the Alcohol Consumption Disqualifying Conditions. I have especially considered AG ¶¶ 22(a) and 22(c). 3

2 AG ¶ 31(a) reads as follows: “a single serious crime or multiple lesser offenses.” AG ¶ 31(c) reads:

3 AG ¶ 22(a) reads: “alcohol-related incidents away from work, such as driving while under the influence, Between 1991 and at least 2007, Applicant was arrested once for a drug-related driving offense and four times for alcohol-related driving offenses. Her most recent alcohol-related driving offense occurred fifteen months ago, in October 2007. She is a habitual consumer of alcohol, and, despite multiple arrests for driving under the influence of alcohol, she continues to drink alcohol. She sought treatment for depression, following an increase in her alcohol consumption. She is no longer in treatment for depression. Nothing in the record suggests she has been diagnosed as an abuser of alcohol or as alcohol dependent. These facts raise security concerns under AG ¶¶ 22(a) and 22(c).

The Guideline G disqualifying conduct could be mitigated under AG ¶ 23(a) 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 good judgment.” The disqualifying conduct could also be mitigated under AG ¶ 23(b) if “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).” If “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,” then AG ¶ 23(c) might apply. Finally, mitigation might be possible under AG ¶ 23 (d) if “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’s alcohol-related conduct spans at least 16 years, from 1991 to 2007. Her most recent arrest for driving under the influence of alcohol occurred in October 2007 and is therefore recent. In about 2002, she sought treatment for depression, which she believed had caused her to increase her consumption of alcohol. She was treated with an antidepressant, but continued to drink alcohol after her treatment for depression ended. Despite several arrests for driving under the influence between 1991 and 2007, she has not sought to have her alcohol consumption evaluated by a medical professional. She continues to drink alcohol. Accordingly, I conclude that none of the Guideline G mitigating conditions apply to the facts of Applicant’s case.

Guideline F, Financial Considerations

The security concern relating to the guideline for Financial Considerations is set out in AG ¶ 18:

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 overextended is at risk of having to engage in illegal acts to generate funds.

The guideline notes several conditions that could raise security concerns. Under AG ¶ 19(a), an Ainability or unwillingness to satisfy debts@ is potentially disqualifying. Similarly under AG ¶ 19(c), Aa history of not meeting financial obligations@ may raise security concerns. Applicant accumulated a substantial delinquent debt of over $17,000, which resulted from the repossession of an automobile. Since 2004, she has allowed the debt to remain unpaid, and she has failed to make arrangements to satisfy the debt. This evidence is sufficient to raise these potentially disqualifying conditions.

Guideline F also includes examples of conditions that could mitigate security concerns arising from financial difficulties. Several Guideline F mitigating conditions could apply to the security concerns raised by Applicant’s financial delinquencies. Unresolved financial delinquency might be mitigated if it happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment. (AG ¶ 20(a)) Additionally, unresolved financial delinquency might be mitigated if the conditions that resulted in the financial problem were largely beyond the person’s control, such as loss of employment, a business downturn, unexpected medical emergency, or a death, divorce, or separation, and the individual acted responsibly under the circumstances. (AG ¶ 20(b)) Still other mitigating circumstances that might be applicable include evidence 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 (AG ¶ 20(c) or the individual has initiated a good-faith effort to repay overdue creditors or otherwise resolve debts. (AG ¶ 20 (d))

Applicant has a history of financial delinquency that dates to at least 2004. Her delinquency is recent, on-going, and occurred under circumstances that are likely to recur. She appears to have income sufficient to pay or settle her delinquent debt over time, but she has failed to do so. The record does not reflect that circumstances beyond her control gave rise to her delinquency. I conclude that AG ¶¶ 20(a), 20(b), 20(c), and 20(d) do not apply in mitigation to the facts of Applicant’s case.

Guideline E, Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern:

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. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

When Applicant completed and signed her e-QIP in November 2006, she responded “yes” to Question 23, which asked if she had ever been charged with or convicted of any offenses related to alcohol or drugs. She then listed a 2004 arrest for Driving Under the Influence of Prescribed Medication. She failed to list a 1991 arrest and charge of Driving Under the Influence, a 1992 arrest and charge of Driving Under the Influence of Alcohol, and a 2000 arrest and charge of Driving Under the Influence of Alcohol. In her answer to the amended SOR, she denied that her failure to disclose this information was deliberate falsification of material facts.

Question 25 on the e-QIP asked if, in the last seven years, Applicant’s use of alcoholic beverages had resulted in any alcohol-related treatment or counseling (such as for alcohol abuse or alcoholism). The amended SOR alleged that Applicant’s answer of “no” was a deliberate falsification of a material fact.

In her answer to the amended SOR, Applicant stated that she did not know her license was suspended when she drove her car on October 31, 2007. In her affidavit of March 7, 2008, Applicant stated she knew on October 31, 2007 that she was driving on a suspended license. The amended SOR alleged Applicant deliberately falsified material facts in her answer to the SOR when she denied knowing her license was suspended.

The allegations in the amended SOR raise a security concern under AG ¶ 16(a), which reads: “deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.”

Several Guideline mitigating conditions might apply to the facts of this case. Applicant’s disqualifying personal conduct might be mitigated under AG ¶ 17(a) if “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts.” If “the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security process” and “[u]pon being made aware of the requirement to cooperate or provide information, then individual cooperated fully and completely,” then AG ¶ 17(b) might apply. If “the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not case doubt on the individual’s reliability, trustworthiness, or good judgment,” then AG ¶ 17(c) might apply.

AG ¶ 17(d) might apply if “the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.” AG ¶ 17(e) might apply if “the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.”4

Applicant denied that her failure to report her 1991, 1992, and 2000 arrests for Driving Under the Influence of Alcohol constituted deliberate falsification. However, nothing in the record suggests that she took prompt good faith action to correct the omissions, concealments or falsifications before she was confronted with the facts. (AG ¶ 17(a).) Nothing in the record suggests that her failure to report the three arrests was caused or significantly contributed to by improper or inadequate advice specifically about the security clearance process from authorized individuals or legal counsel. (AG ¶ 17(b).) Applicant had a sixteen-year record of alcohol-related driving arrests and, as a mature adult, she knew those arrests were not minor, so remote in time, so infrequent, or occurred under such unique circumstances that they would not seriously impact her eligibility for a security clearance. (AG 17(c).) Applicant failed to provide documentation that she had acknowledged the behavior that led to the arrests or had taken other positive steps to alleviate the circumstances that caused her unreliable conduct and, as a result such behavior was unlikely to recur (AG ¶ 17(d).) Nothing in the record suggests that Applicant took positive steps to reduce or eliminate the vulnerability to exploitation, manipulation, or duress that her behavior caused. (AG ¶ 17(e). I conclude, therefore, that it was in her self interest to under-report her arrests for Driving Under the Influence of Alcohol. I further conclude that her omissions were deliberate.

Applicant also denied on her e-QIP that her use of alcohol had resulted in alcohol-related treatment or counseling. However, in response to DOHA interrogatories, she acknowledged she had received treatment for depression and increased alcohol use. She was prescribed antidepressants and saw a counselor. She asserted that she thought she was being treated for depression and not alcohol abuse. Absent any other information on the nature of Applicant’s treatment, her assertion is plausible.

In her answer to the SOR, Applicant stated she did not know her driver’s license was suspended when she was arrested in October 2007. However, she signed an affidavit under penalty of perjury in May 2008 stating that when she was arrested in October 2007, she knew her license was suspended and that driving with a suspended license was an arrestable offense. After considering all applicable Guideline E mitigating conditions, I conclude that none applies and that Applicant’s answer was a deliberate falsification.

WHOLE PERSON CONCEPT

Under the whole person concept, an administrative judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of an applicant’s

4 Neither AG 17(f) nor AG 17(g) applies to the facts of this case. conduct and all the circumstances. 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) 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 is a mature adult who has been recognized by her supervisors, trainers, and co-workers as sensible, responsible, and trustworthy. However, she failed to accurately report her criminal conduct and her alcohol-related behavior on her e-QIP, thereby creating a situation that could seriously mislead the government about her honesty, reliability, trustworthiness. Her falsifications were not minor: they went to the heart of her qualifications for a security clearance. Applicant’s failure to be truthful was deliberate. She made no effort to correct her falsifications before the government confronted her with her lack of candor.

Overall, the record evidence leaves me with questions and doubts at the present time as to Applicant’s eligibility and suitability for a security clearance. For these reasons, I conclude Applicant failed to mitigate the security concerns arising from her criminal conduct, alcohol involvement, financial delinquencies, and personal conduct.

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 J: AGAINST APPLICANT

Subparagraphs 1.a. through 1.f.: Against Applicant

Paragraph 2, Guideline G: AGAINST APPLICANT

Subparagraph 2.a.: Against Applicant

Subparagraph 2.b.: Against Applicant Paragraph 3, Guideline F: AGAINST APPLICANT

Subparagraph 3.a.: Against Applicant

Paragraph 4, Guideline E: AGAINST APPLICANT

Subparagraphs 4.a. through 4.c.: Against Applicant

Subparagraph 4.d.: For Applicant

Subparagraph 4.e.: Against Applicant

CONCLUSION

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

_________________ Joan Caton Anthony Administrative Judge

FOOTNOTES

indicate whether she attended as directed. ”allegation or admission or criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.”

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.” AG ¶ 22(c) reads: “habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent.”