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ISCR Case 10-04985.h1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date5/22/2012
Statusdenied
LevelHEARING
TypeSTANDARD ISCR
Participants
Judge: Francisco Mendez
Applicant Representation: Pro Se
Guidelines Evaluated
- Guideline EPersonal Conduct · Unknown Outcome
- Guideline FFinancial Considerations · Unknown Outcome
- Guideline GAlcohol Consumption · Unknown Outcome
- Guideline HDrug Involvement & Substance Misuse · Unknown Outcome
- Guideline JCriminal Conduct · Unknown Outcome

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ISCR Case 10-04985.h1denied

Case Headnote

ISCR Case No. 10-04985.h1

deniedMay 22, 2012· Hon. Francisco Mendez· hearing

Summary

A 50-year-old male applicant was denied a security clearance due to concerns under Guidelines E (Personal Conduct), F (Financial Considerations), G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from a long history of substance abuse, multiple arrests, financial instability, and dishonesty on his security clearance application.

Specifically, the applicant failed to disclose a 1996 marijuana possession arrest and minimized his marijuana use, claiming only a single instance in May 2009 despite extensive past use. His financial issues included a June 2011 bankruptcy filing that discharged over $32,000 in unsecured debt, a November 2010 judgment for over $6,000 leading to garnishment, and a mortgage over 120 days past due. These financial strains were exacerbated by his substance abuse and recent arrests, contributing to his wife filing for divorce.

The applicant also had a history of alcohol-related incidents, including a DUI conviction, a diagnosis of alcohol abuse, and a pattern of binge drinking and poor judgment despite treatment. His criminal record included arrests for disorderly conduct (assaulting a police officer), shoplifting, domestic assault, marijuana possession, vandalism, and assault for inappropriately touching a young girl. The judge concluded that the applicant's poor judgment and failure to acknowledge his substance abuse issues raised significant concerns about his reliability and trustworthiness, leading to the denial.

Why the Applicant Was Denied

Applicant has a lengthy history of substance abuse leading to multiple arrests.
He failed to disclose the full extent of his marijuana use on his security clearance application.
His financial problems, including bankruptcy and overdue mortgage payments, further undermine his reliability.

Conditions Referenced

Disqualifying

AG ¶ 16(a)appliedDeliberate Omission, Concealment, or Falsification of Relevant Facts
AG ¶ 22(a)raisedAlcohol-related Incidents Away From Work
AG ¶ 25(a)raisedAny Drug Abuse
AG ¶ 31(a)raisedA Single Serious Crime or Multiple Lesser Offenses

Key Rule Quoted

“The security clearance process is contingent upon the honesty of all applicants.”

Procedural Posture

SOR issuedApr 8, 2011
Answer filedMay 9, 2011Requested a decision on the administrative record.
Hearing held—
Decision dateMay 22, 2012

Cite For

Denial Based on Extensive History of Substance Abuse and Criminal Conduct
Failure to Disclose Significant Drug Use on Security Clearance Application
Financial Instability as a Factor in Security Clearance Decisions

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 that the applicant's personal conduct raised significant concerns regarding reliability and trustworthiness. The applicant was found to have deliberately omitted relevant information from his security clearance application, which contributed to the overall denial of his clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
4.a	Applicant failed to disclose his 1996 arrest for marijuana possession on his SCA and, in revealing his marijuana use, claimed he had only used marijuana in May 2009.	For Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
4.b	Applicant stated that he did not consider his extensive marijuana use to be a significant issue and, so, only revealed his May 2009 use.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Other	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—

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 multiple financial concerns under Guideline F, including a mortgage that was over 120 days past due and a bankruptcy filing that discharged over $32,000 in unsecured debt. While one subparagraph was ruled in favor of the applicant, the overall financial issues were deemed significant enough to deny the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
5.a	In June 2011, Applicant and his wife filed for bankruptcy to resolve the other debt that they accumulated during the marriage. The bankruptcy petition lists over $32,000 in unsecured debt, mainly credit card accounts. The petition also lists a judgment from November 2010 for over $6,000. The creditor secured a garnishment to satisfy the judgment. In August 2011, Applicant’s debts were discharged. $32,000	For Applicant	Bankruptcy Filing	Unknown	—	—	—
5.b	The mortgage on the home is over 120-days past due. Applicant states that his wife is attempting to modify the loan, but provided no documentation of such efforts.	Against Applicant	Mortgage or Home Loan Debt	Unknown	—	—	—
5.c	Applicant’s recent arrests and substance abuse has strained his finances and his marriage. His wife, who is recovering from her own substance abuse issues, filed for divorce. They are currently separated and Applicant left the home.	Against Applicant	Unspecified Financial	Unknown	—	—	—

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: deniedAUD DIAGNOSED

The judge found against the applicant on all allegations under Guideline G concerning alcohol consumption. The applicant has a history of alcohol abuse, including a DUI conviction and subsequent alcohol-related incidents, which the judge determined raised significant concerns about his reliability and trustworthiness. Despite completing court-mandated treatment, the applicant continues to consume alcohol and denies having a problem, leading to a denial of his security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	The applicant has a history of alcohol-related incidents, including a DUI conviction.	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 (e) failure to follow treatment advice once diagnosed	—	—
2.b	The applicant was diagnosed with alcohol abuse by a licensed clinical social worker.	Against Applicant	Alcohol Use Disorder Diagnosed	Denied	(e) failure to follow treatment advice once diagnosed	—	—
2.c	The applicant has failed to abstain from alcohol after treatment.	Against Applicant	Continued Use After Treatment	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—
2.d	The applicant has exhibited a pattern of binge drinking and poor judgment related to alcohol consumption.	Against Applicant	Binge or Intoxication Pattern	Denied	(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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's extensive history of marijuana use raised significant security concerns under Guideline H. Although one subparagraph was ruled in favor of the applicant, the overall findings regarding drug involvement were against the applicant, leading to a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
3.a–3.e	5 sub-charges — specific text not stated in this decision (4 against, 1 for the applicant).	Mixed	Unspecified Drug Involvement	Unspecified		—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). 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 found against the applicant on all allegations under Guideline J, citing a lengthy history of criminal conduct linked to substance abuse. The applicant's failure to disclose prior arrests and ongoing issues with alcohol and drug use contributed to the decision to deny the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was arrested for disorderly conduct (assaulting a police officer at a bar while under the influence).	Against Applicant	Assault or Battery	Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.b	Applicant was arrested for shoplifting.	Against Applicant	Theft or Larceny	Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.c	Applicant was arrested for domestic assault.	Against Applicant	Domestic Violence	Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.d	Applicant was arrested for possession of marijuana.	Against Applicant	Drug Related Criminal Charge	Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.e	Applicant was charged with vandalism after throwing a rock through a car window.	Against Applicant	Vandalism or Property Damage	Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.f	Applicant was arrested for driving under the influence (DUI) and possession of marijuana.	Against Applicant	DUI or DWI Criminal	Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.g	Applicant was charged with assault after inappropriately touching a young girl during a wrestling incident.	Against Applicant	Assault or Battery	Convicted	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

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: ) ) REDACTED ) ISCR Case No. 10-04985 ) Applicant for Security Clearance )

For Government: Eric Borgstrom, Esq., Department Counsel For Applicant: Pro se

05/22/2012 ______________

STATEMENT OF CASE

______________

MENDEZ, Francisco, Administrative Judge:

Applicant’s lengthy history of substance abuse has led to poor decisions that have resulted in numerous arrests dating back to the 1990s. He continued to exhibit poor judgment when he deliberately failed to reveal the full extent of his extensive marijuana use on his current security clearance application. His poor judgment extends to his finances. Applicant failed to establish that the security concerns at issue are unlikely to recur. His past history of substance abuse, criminal conduct, dishonesty, and financial problems, continues to cast doubt on his current reliability, trustworthiness, and good judgment. Clearance is denied.

Statement of the Case

On February 4, 2010, Applicant submitted his security clearance application (SCA). On April 8, 2011, the Defense Office of Hearings and Appeals (DOHA) sent him a Statement of Reasons (SOR), setting out security concerns under Guideline J (criminal conduct), Guideline G (excessive alcohol consumption), Guideline H (illegal drug involvement), Guideline E (personal conduct), and Guideline F (financial considerations).1 On May 9, 2011, Applicant submitted his Answer and requested a decision on the administrative record.

On November 27, 2011, Department Counsel submitted its File of Relevant Material (FORM).2 Applicant received the FORM on January 4, 2012. He had 30 days within which to file a response and any objections to the FORM. He did not submit a response or objections. I was assigned the case on March 22, 2012.

FINDINGS OF FACT

Applicant is 50 years old. He is married with four children, who range in age from 12 to 29. He has been with his current employer since at least January 2000.3

Applicant started abusing alcohol and marijuana when he was a teenager. His substance abuse has contributed to poor decisions that have led to a number of arrests and convictions over the years. Between 1990 and 1996, Applicant was arrested for disorderly conduct (assaulting a police officer at a bar while under the influence), shoplifting, domestic assault, and possession of marijuana. He was found guilty of the last three charges. In 2006, Applicant threw a rock through a car window and was again arrested. He was charged with vandalism, and was ordered to pay restitution and perform community service.4 (SOR ¶¶ 1.a – 1.e, 2.a and 2.d, and 3.a and 3.e)

Applicant was next arrested in May 2009 when he decided to drive after having consumed alcohol. He had been drinking at a bar celebrating his son’s upcoming nuptials, when he was offered marijuana by one of the other patrons at the bar. He took the marijuana and planned on using it after getting home that evening. He was later stopped by police and arrested for driving under the influence (DUI). During the subsequent search, the police discovered the marijuana. Applicant was convicted of DUI and possession of marijuana. His sentence included court-mandated alcohol and drug counseling.5 (SOR ¶¶ 1.fand 3.e)

During the course of the court-mandated treatment program, Applicant discussed his history of substance abuse, including having used cocaine on a few occasions when he was a teenager. He also discussed his use of marijuana since he was 15 years old. He reported being able to identify the negative impact of his substance abuse. A licensed clinical social worker (LCSW), who was a member of the court-mandated treatment program, diagnosed Applicant with alcohol and cannabis abuse, both in early full remission. Applicant’s discharge plan cautioned him to abstain from mood-altering substances.6 (SOR ¶¶ 2.band 3.b – 3.c)

A year later, in May 2010, Applicant was again involved in an alcohol-fueled criminal incident. He came home intoxicated and started wrestling with a number of his daughter’s young female friends. One of the girls reported to police that Applicant had inappropriately touched her during the melee. He was charged with assault. He pled no contest to the charge and was found guilty. He was placed on probation for a year and again ordered to attend alcohol and drug counseling.7 (SOR ¶¶ 1.gand 2.d)

During the course of this second court-mandated treatment program, Applicant discussed his long history of alcohol abuse, including suffering from blackouts in the past. He refused to take responsibility for his actions that led to his recent conviction for assault. He was again diagnosed with alcohol and cannabis abuse. The LCSW found that Applicant’s cannabis abuse was in full remission and his alcohol abuse was in early remission. Applicant’s discharge plan again cautioned him to abstain from all mood- altering substances.8 (SOR ¶¶ 2.a, 2.c, and 3.d)

In October 2010, after completing the treatment program, Applicant underwent a background interview. He told the investigator that he “does not believe he has any particular problem or issue with [alcohol] use” and has resumed using alcohol.9 He went on to say that he only went to treatment for his marijuana use “as it was mandated he do so by the court, not because [he] felt he needed to do so.”10

During his background interview, Applicant was asked why he had failed to disclose his 1996 arrest for marijuana possession on his SCA and, in revealing his marijuana use, claimed he had only used marijuana in May 2009. Applicant explained that he failed to list the 1996 arrest, because he believed that criminal matters over 10 years old did not need to be reported. He did disclose his 2006 and 2009 criminal arrests on his SCA. (SOR ¶ 4.a) As for reporting that he had only used marijuana in May 2009, Applicant stated that he did not consider his extensive marijuana use to be a significant issue and, so, only revealed his May 2009 use.11 (SOR ¶ 4.b) Applicant’s recent arrests and substance abuse has strained his finances and his marriage. His wife, who is recovering from her own substance abuse issues, filed for divorce. They are currently separated and Applicant left the home. The mortgage on the home is over 120-days past due. Applicant states that his wife is attempting to modify the loan, but provided no documentation of such efforts. (SOR ¶ 5.c)

In June 2011, Applicant and his wife filed for bankruptcy to resolve the other debt that they accumulated during the marriage. The bankruptcy petition lists over $32,000 in unsecured debt, mainly credit card accounts. The petition also lists a judgment from November 2010 for over $6,000. The creditor secured a garnishment to satisfy the judgment. In August 2011, Applicant’s debts were discharged.12 (SOR ¶ 5.a)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used 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, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The Government must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. On the other hand, an 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.” Directive ¶ E3.1.15.13 An applicant has the ultimate burden of persuasion to obtain a favorable security decision. In resolving this ultimate question, an administrative judge must resolve “[a]ny doubt concerning personnel being considered for access to classified information . . . in favor of national security.” AG ¶ 2(b). 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

ANALYSIS

Guideline J, Criminal Conduct

The criminal conduct concern is addressed at AG ¶ 30:

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.

Applicant’s lengthy criminal record directly implicates this concern. It also establishes the following disqualifying conditions under AG ¶ 31:

(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.

An applicant may mitigate the criminal conduct concern by establishing one or more of the mitigating conditions listed under AG ¶ 32. I have considered all the mitigating conditions and, under the circumstances, only the following are relevant:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur or 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.

None of the mitigating conditions apply. Applicant’s lengthy criminal record is, to a degree, tied to his history of substance abuse. However, he refuses to acknowledge his underlying issues with alcohol and marijuana. He also denies culpability for his own misconduct that led to his most recent criminal conviction, which occurred just three months after submitting his SCA. He only recently completed probation for this last conviction and, as explained below, falsified his SCA. Although Applicant has been afforded multiple chances at rehabilitation, he continues to engage in criminal activity. His criminal conduct remains a concern.

Guideline G, Alcohol Consumption

The concern regarding excessive alcohol consumption is articulated at AG ¶ 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.

Applicant has a long track record of irresponsible drinking. His alcohol abuse has led to the exercise of poor judgment, including his decision to drink and drive in 2009, which resulted in his DUI conviction. It has also led to his failure to control his impulses, as evidenced by his 2010 conviction for groping a young woman. He has twice been diagnosed with alcohol abuse, but continues to deny he has issues with alcohol and has resumed consuming alcohol. This evidence establishes the excessive alcohol consumption concern and the following disqualifying conditions under AG ¶ 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 whether the individual is diagnosed as an alcohol abuser or alcohol dependent;

(c) 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; and

(e) evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.14

An applicant may mitigate the excessive alcohol consumption concern by establishing one or more of the mitigating conditions listed under AG ¶ 23. I have considered all the mitigating conditions and only the following warrant discussion:

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

None of the mitigating conditions apply. Applicant has twice completed court- mandated alcohol treatment, but refuses to acknowledge his issues with alcohol. He continues to abuse alcohol in spite of being advised on two separate occasions that he should abstain from mood-altering substances. He continues to drink and provided no evidence that he does so in a responsible fashion. Applicant’s current diagnosis of alcohol abuse in early remission is undercut by his two recent alcohol-related criminal convictions. Applicant’s excessive alcohol consumption remains a concern.15

Guideline H, Drug Involvement

The security concern regarding illegal drug involvement is set forth at AG ¶ 24:

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.

Applicant’s extensive involvement with marijuana, which culminated in his 2009 arrest for marijuana possession, triggers the above concern and the following disqualifying conditions under AG ¶ 25:16

(a) any drug abuse;17 and (b) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

AG ¶ 26 sets forth a number of conditions that could mitigate the Guideline H concern. The following mitigating conditions were potentially raised by the evidence:

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

(b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation; and

(d) satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

None of the mitigating conditions apply. Applicant’s last admitted marijuana use occurred in May 2009 at 47 years of age. He has been using marijuana since he was in his teens. Although the past three years of non-use and the LCSW’s diagnosis of cannabis abuse in full remission are significant mitigating factors, they are insufficient, in light of Applicant’s long history of marijuana use, to establish that it will not recur. Furthermore, Applicant’s inability to recognize that he needed counseling for his marijuana abuse undercuts the mitigating value of having completed the court- mandated treatment program. Moreover, Applicant has been employed by a federal contractor since at least January 2000 and continued his illegal drug use irrespective of said employment. Applicant’s drug involvement remains a concern.18

Guideline E, Personal Conduct

The personal conduct concern is set forth at AG ¶ 15:

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. The guideline notes several disqualifying conditions that could raise a security concern under AG ¶ 16, and only the following warrants discussion:

(a) 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.

The security clearance process is contingent upon the honesty of all applicants. It begins with the answers provided in the SCA. An applicant should disclose any potential derogatory information. However, the omission of material, adverse information standing alone is not enough to establish that an applicant intentionally falsified. Instead, an administrative judge must examine the facts and circumstances surrounding the omission to determine an applicant’s true intent.19

Applicant did not falsify his SCA when he omitted his 1996 conviction for marijuana possession. His explanation that he only thought he had to go back 10 years in revealing information is consistent with the other evidence. For instance, Applicant listed his employment going back exactly 10 years. Further, he listed his most recent criminal convictions from 2006 and 2009. The 2009 convictions for DUI and marijuana possession are far more serious than a drug conviction from 16 years ago. He freely discussed his criminal past with the government investigator, including disclosing his 2010 assault conviction that took place after the SCA was submitted. Such voluntary disclosure is wholly inconsistent with the conduct one would expect from an individual who is trying to hide their criminal past. Accordingly, I find for Applicant as to SOR ¶ 4.a.

On the other hand, the evidence is clear that Applicant falsified his SCA when he failed to disclose the full extent of his marijuana use. He told a government investigator that he only listed his May 2009 marijuana use, versus the full extent of his illegal drug use; because he did not believe his extensive drug use was significant. Applicant’s decision not to disclose this adverse information was intentional. AG ¶ 16(a) applies.

An applicant may mitigate the personal conduct concern by establishing one or more of the mitigating conditions listed under AG ¶ 17. I have considered all the listed mitigating conditions and find that none apply. Applicant’s dishonesty continues to cast doubt on his suitability for access to classified information. Guideline F, Financial Considerations

The security concern relating to financial problems is articulated at 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.

“This concern is broader than the possibility that an applicant might knowingly compromise classified information in order to raise money in satisfaction of his or her debts.”20 The concern also encompasses financial irresponsibility, which may indicate that an applicant would also be irresponsible, unconcerned, negligent, or careless in handling and safeguarding classified information. Applicant has failed to pay his financial obligations, as evidenced by a recent judgment where the creditor was forced to seek a garnishment and a mortgage that, at the close of the record, was over 120- days past due.21 This evidence triggers the financial considerations concern and the following disqualifying conditions under AG ¶ 19:

(a) inability or unwillingness to satisfy debts; and

An applicant may mitigate the financial considerations concern by establishing one or more of the mitigating conditions listed under AG ¶ 20. The relevant mitigating conditions are:

(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; and

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

None of the mitigating conditions apply. Applicant’s financial trouble is somewhat related to his pending divorce, which is generally a matter largely outside an individual’s control. However, in this case, Applicant’s pending divorce is a result of his substance abuse and criminal behavior – matters that are not beyond his control. Further, a review of Applicant’s bankruptcy petition reveals that his financial problems were far greater than the three debts alleged in the SOR. In addition to the $6,000 judgment and mortgage default, Applicant accumulated over $32,000 in unsecured consumer debt, much of it credit card debt.22 Applicant has now resolved his non-mortgage related debts through bankruptcy and completed a financial counseling course through the bankruptcy process. However, he failed to submit proof that his financial situation is squarely under control. Discharge of one’s debts through bankruptcy is not the equivalent of a track record of responsible conduct vis-à-vis one’s financial obligations. Also, Applicant failed to submit documentary proof that he has attempted to resolve his delinquent mortgage.23 Applicant’s financial problems remain a concern.

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 conduct and all the relevant circumstances. An administrative judge should consider the nine factors listed at AG ¶ 2(a).24 I considered the favorable and extenuating factors in this case, including Applicant’s good employment record and his level of cooperation throughout the security clearance process. However, the protection of national security is the paramount concern in assessing an applicant’s security suitability. Further, security clearance adjudications are “not an exact science, but rather predictive judgments” where an applicant’s past history is the best indicator of future conduct.25 Applicant’s history of substance abuse, criminal conduct, dishonesty, and self-inflicted financial problems, leaves me with serious doubts about his security suitability.

FORMAL FINDINGS

I make the following formal findings regarding the SOR allegations:

Paragraph 1, Guideline J (Criminal Conduct): AGAINST APPLICANT

Subparagraphs 1.a – 1.g: Against Applicant

Paragraph 2, Guideline G (Alcohol Consumption) AGAINST APPLICANT

Subparagraphs 2.a – 2.d: Against Applicant

Paragraph 3, Guideline H (Drug Involvement) AGAINST APPLICANT

Subparagraph 3.a : Against Applicant Subparagraph 3.b: For Applicant Subparagraphs 3.c – 3.e: Against Applicant

Paragraph 4, Guideline E (Personal Conduct) AGAINST APPLICANT

Subparagraph 4.a: For Applicant Subparagraph 4.b : Against Applicant

Paragraph 5, Guideline F (Financial Considerations): AGAINST APPLICANT

Subparagraph 5.a: Against Applicant Subparagraph 5.b: For Applicant Subparagraph 5.c: Against Applicant

CONCLUSION

In light of the record evidence and for the foregoing reasons, it is not clearly consistent with the national interest to grant Applicant access to classified information. Applicant’s request for a security clearance is denied.

____________________ Francisco Mendez Administrative Judge

FOOTNOTES

1 DOHA acted under Executive Order (EO) 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 Adjudicative Guidelines (AG) implemented by the Department of Defense on September 1, 2006. 2 The FORM contains the Government’s recitation of the facts, argument, and thirteen documentary exhibits. Government Exhibits (GE) 1 through 13 are hereby admitted into the record. 3 GE 3.

4 Answer; GE 4 – GE 5; GE 8 at R-84; GE 9.

5 Answer; GE 4; GE 7; GE 9. 6 Answer; GE 8 at R-45-47, R-51, R-58, R-84.

7 Answer; GE 5 – GE 7; GE 8 at R-19 and R-40.

8 Answer; GE 8 at R-4-5, R-33, R-39-40, R-44-45. 9 GE 4 at I-31.

10 GE 4 at I-32.

11 GE 4 at I-30 and I-32. 12 Answer; GE 8 at R-86; GE 10 – GE 12; GE 13, Schedule F and Statement of Financial Affairs, ¶ 3. The SOR does not allege the bankruptcy, nor the $32,000 in unsecured debt set forth in the bankruptcy petition, except for a delinquent dental bill. (SOR ¶ 5.b) 13 ISCR Case No. 11-00391 (App. Bd. Dec. 1, 2011) (“Once an applicant’s SOR admissions and/or the Government’s evidence raise a security concern, the burden of persuasion shifts to the applicant to mitigate the concern.”). 14 See ISCR Case No. 07-00558 (App. Bd. Apr. 7, 2008) [The types of professionals who can make a diagnosis of alcohol abuse and dependence is far more expansive than those specifically enumerated in AG ¶¶ 22(d) and (e)]. 15 See generally ISCR Case No. 04-10799 (App. Bd. Nov. 9, 2007) (applicant, whose most recent alcohol-related criminal conduct occurred after submitting his SCA, failed to mitigate concerns raised by his excessive alcohol consumption because he did not demonstrate a track record of responsible use). 16 Applicant’s limited cocaine use as a teenager may be relevant in presenting a complete picture of his substance abuse history, but does not raise a security concern. SOR ¶ 3.bis resolved in his favor. 17 The Directive defines “drug abuse” as the “illegal use of a drug or use of a legal drug in a manger that deviates from approved medical direction.” AG ¶ 24(b). 18 See e.g. ISCR Case No. 10-06480 (App. Bd. Aug. 19, 2011) (upholding denial where applicant’s last marijuana use occurred four years ago). 19 See generally ISCR Case No. 02-12586 (App. Bd. Jan. 25, 2005); ISCR Case No. 02-15935 (Appl. Bd. Oct. 15, 2003). 20 ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012).

21 Applicant’s delinquent dental bill, SOR ¶ 1.b, is decided for Applicant. 22 See e.g., ISCR Case No. 11-05365 at 2-3 (App. Bd. May 1, 2012) (non-SOR debts can be considered in assessing an applicant’s mitigation case). 23 ISCR Case 07-10310 at 2 (App. Bd. July 30, 2008) (an applicant is expected to present documentation to substantiate his or her claim about the debts at issue). 24 The adjudicative factors are: (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. 25 ISCR Case No. 01-25941 at 5 (App. Bd. May 7, 2004) [citing to Department of the Navy v. Egan, 484 U.S. 518, 528-529 (1988)].