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ISCR Case 11-13533.h1 — CASE

ISCR Case 11-13533.h1granted

Case Headnote

ISCR Case No. 11-13533.h1

grantedMay 2, 2013· Hon. Philip S. Howe· hearing

Summary

A 41-year-old defense contractor was granted a security clearance despite concerns under Guidelines E (Personal Conduct), F (Financial Considerations), G (Alcohol Consumption), and H (Drug Involvement). The applicant had a history of alcohol-related incidents, including DUI arrests in 1989 and 2011, and past issues with illegal drug possession. Financial concerns included several outstanding debts, some dating back to 2008.

The judge found that the applicant had made significant progress in addressing these issues. He demonstrated a substantial period of alcohol abstinence and completed required counseling without adverse findings. His past drug possession was mitigated by evidence that the medications belonged to a friend and were not for his personal use.

Regarding financial concerns, the applicant resolved several debts, including a $291 debt he committed to paying by March 2013, and a $196 medical debt from 2008 that no longer appeared on his credit report. He also provided evidence that a $113,596 judgment and a $32,489 debt were not his responsibility, and a $70 medical debt was paid in 2010. A $1,378 debt was identified as a duplicate of another resolved debt. While a $519 telephone bill remained on his credit record, the account was closed. Ultimately, the judge determined that the applicant had sufficiently mitigated the security concerns.

Why the Applicant Prevailed

The applicant demonstrated a significant period of abstinence from alcohol and completed required counseling without any adverse findings.
The applicant's drug possession was mitigated by evidence that the medications belonged to a friend and were not intended for personal use.
The applicant resolved several debts and provided evidence that many debts listed were not his responsibility.

Conditions Referenced

Disqualifying

G-25(c)raisedIllegal Drug Possession
E-16(c)raisedCredible Adverse Information
E-16(e)raisedPersonal Conduct Creating Vulnerability

Mitigating

G-23(a)appliedBehavior Unlikely to Recur
H-26(a)appliedBehavior Unlikely to Recur
E-17(c)appliedMinor Offense or Unique Circumstances
E-17(d)appliedEvidence of Rehabilitation

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 26, 2012
Answer filedNov 20, 2012
Hearing heldMar 6, 2013
Decision dateMay 2, 2013

Cite For

Mitigation of Past Alcohol-related Incidents Under Guideline G
Mitigation of Drug Possession Charges When Evidence Supports Non-intent
Resolution of Financial Issues Impacting Security Clearance Eligibility

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: granted

The judge found that the applicant's personal conduct did not raise security concerns, ruling in favor of the applicant under Guideline E. The applicant's conduct was evaluated, and it was determined that there were no issues of dishonesty or lack of candor that would affect his reliability or trustworthiness.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a–3.c	3 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant		—		—	—	—

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: granted

The judge found that the applicant had multiple delinquent debts totaling $148,821, but ruled in favor of the applicant on all allegations under Guideline F. The applicant provided evidence that several debts were not owed by him, were resolved, or were in the process of being resolved, leading to a favorable decision regarding his financial considerations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
4.a	The debt for $291 in Subparagraph 4.a is owed by Applicant and not his father, as a subsequent document from Applicant showed. He will pay the debt within the next two weeks from March 26, 2013 or he will pay it with an installment plan to remove it from his credit record. This debt is being resolved. $291	For Applicant	Unspecified Financial	Admitted	—	—	—
4.b	The debt for $519 in Subparagraph 4.b is a telephone bill owed by Applicant. He claims he does not owe it, and the account is closed by the creditor. It has not been removed from Applicant’s credit record. $519	For Applicant	Unspecified Financial	Denied	—	—	—
4.c	The $113,596 judgment against Applicant in Subparagraph 4.c is not owed by Applicant. It pertains to the farm owned by his father who is now deceased. The judgment and lien filing sheet included as a government exhibit shows a different social security number than Applicant’s as the debtor. It also shows Applicant’s stepmother as a judgment debtor. The latest credit report shows a zero balance on Applicant’s record for this debt. $113,596	For Applicant	Judgment Against Applicant	Denied	—	—	—
4.d	Subparagraph 4.d contains a debt for a medical account in the amount of $196. The debt dates from 2008. Applicant suspects it resulted from his fall from the roof and this debt remains from what the Workers Compensation System did not pay. It appears on the credit report from 2009 but not on the March 2013 credit report. This debt is resolved. $196	For Applicant	Medical Debt	Unknown	—	—	—
4.e	Subparagraph 4.e alleges Applicant owes $70 on a medical account. His Answer contains an attachment showing the debt was paid in October 2010. This debt is resolved. $70	For Applicant	Medical Debt	Unknown	—	—	—
4.f	Subparagraph 4.f contains a debt for $1,378 which is owed to NCO Financial. It arose in 2008. It is a duplicate of the debt listed in Subparagraph 4.b. This debt is resolved. $1,378	For Applicant	Unspecified Financial	Unknown	—	—	—
4.g	Subparagraph 4.g has a debt listed for $282 owed to a medical provider. It originated in 2008. This debt was paid by an insurance company. It does not appear on Applicant’s latest credit reports. This debt is resolved. $282	For Applicant	Medical Debt	Unknown	—	—	—
4.h	The last debt listed in the SOR is Subparagraph 4.h in the amount of $32,489. Applicant asserts the debt belonged to his father. He does not know if his father paid the debt before he died. This obligation does not appear on Applicant’s credit reports. The signature on the Answer and that on the Agreed Judgment documents from 2002 Applicant submitted are not the same signature. This debt is not Applicant’s. $32,489	For Applicant	Unspecified Financial	Denied	—	—	—

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: granted

The judge found in favor of the applicant regarding the alcohol consumption allegations. The applicant had two DUI incidents, one in 1989 and another in 2011, but the judge determined that the time elapsed and the infrequency of these incidents did not cast doubt on the applicant's current reliability or judgment. The applicant successfully completed an outpatient counseling program, but the judge noted that there were no treatment recommendations or prognosis provided after completion.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	Applicant was arrested for driving while under the influence (DUI) in 1989.	For Applicant	DUI or DWI Alcohol	Admitted	—	(a) so much time has passed / so infrequent that it is unlikely to recur	—
1.b	Applicant was arrested for DUI in 2011.	For Applicant	DUI or DWI Alcohol	Admitted	—	(a) so much time has passed / so infrequent that it is unlikely to recur	—
1.c	Applicant has a history of alcohol-related incidents.	For Applicant	Unspecified Alcohol Incident	Admitted	—	(a) so much time has passed / so infrequent that it is unlikely to recur	—

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: granted

The judge found that the applicant did not use illegal drugs and did not have a diagnosis of drug abuse or dependency. The applicant was found in possession of prescription medications for which he did not have prescriptions, leading to a ruling against him on that specific allegation. However, the overall findings under Guideline H were in favor of the applicant, indicating that the circumstances did not raise significant concerns about his reliability or trustworthiness.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a–2.b	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Drug Involvement	Unspecified		—	—	—
2.c	illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia	Against Applicant	Prescription Opioid Misuse	Not Applicable	Unknown	(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
2.d–2.h	5 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). 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. 11-13533 ) ) Applicant for Security Clearance )

For Government: Pamela C. Benson, Esquire, Department Counsel For Applicant: Pro se

05/02/2013 ______________

STATEMENT OF CASE

______________

HOWE, Philip S., Administrative Judge:

On July 14, 2011, Applicant submitted his electronic Security Clearance Application (SF 86)(e-QIP). On September 26, 2012, the Department of Defense (DoD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines G (Alcohol Consumption), H (Drug Involvement), E (Personal Conduct), and 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 adjudicative guidelines (AG) effective within the Department of Defense on September 1, 2006.

Applicant acknowledged receipt of the SOR on October 4, 2012. He answered the SOR in writing on November 20, 2012, and requested a hearing before an administrative judge. Defense Office of Hearings and Appeals (DOHA) received the request on November 26, 2012. Department Counsel was prepared to proceed on January 14, 2013, and I received the case assignment on January 17, 2013. DOHA issued a Notice of Hearing on February 14, 2013, and I convened the hearing as scheduled on March 6, 2013. The Government offered Exhibits 1 through 7, which were received without objection. Applicant testified and submitted Exhibits A through C, without objection. Applicant submitted additional exhibits on March 26, 2013, and they were admitted without objection. They were marked as Exhibits D to F.

DOHA received the transcript of the hearing (Tr.) on March 20, 2013. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in Subparagraphs 1.a to 1.c. He denied the allegations in Paragraphs 2 and 3. He admitted Subparagraph 4.a, denied Subparagraphs 4.bthrough 4.f, and 4.h, while partially admitting and partially denying Subparagraph 4.g. He also provided additional information to support his request for eligibility for a security clearance.

Applicant is 41 years old, divorced, and has one child. He works for a defense contractor. He currently holds a security clearance or had one until recently. (Tr. 20-22; Exhibit 1)

In August 1989, Applicant was arrested for driving while under the influence. He spent 12 hours in jail, lost his driving privileges for nine months, and paid a $450 fine. Applicant was 18 years old and the incident occurred on a college campus when Applicant and a friend were driving around yelling at the female students. (Tr. 39, 40; Exhibits 2, 3; Answer)

Applicant was arrested about six years ago, in 2006, for having an open container of alcohol in the passenger compartment of his vehicle. He took a breathalyzer test and passed it. Applicant recalls that ticket being dismissed. (Tr. 40, 41)

Applicant was arrested on January 14, 2011 on a charge of speeding (five miles over the speed limit), operating a motor vehicle while under the influence of alcohol or drugs (DUI), failure to produce a valid insurance card, and possession of a controlled substance. Applicant refused a blood test to determine the alcohol content in his blood. Breath and urine tests were not requested. A search of Applicant by the arresting officer found a Tylenol bottle containing four Xanax tablets, two and a half Hydrocodone tablets, and four and half Oxycodone tablets. All charges except the DUI, the insurance card failure and the three counts of possession of a controlled substance were dismissed. Applicant was found guilty of the remaining charges and fined $750 and ordered to undergo a DUI assessment and attend DUI education. (Tr. 24-39; Exhibits 1, 3, E, F; Answer)

Applicant completed the DUI assessment and education requirements between March and May 2011. The initial interview on March 10, 2011 includes a comment from the licensed clinical social worker who also is a certified alcohol dependency counselor that Applicant lacks symptoms “that fits DSM IV criteria for Drug or Alcohol Abuse.” The counselor recommended Applicant attend a 90-day outpatient treatment program. The assessment on each subsequent report was that Applicant was making progress and met his treatment goals. (Tr. 24, 25; Exhibit F)

Applicant drinks very seldom now. He consumes beer about once a month. He has not been intoxicated in his recent memory. Applicant has not been told by any alcohol counselor to stop drinking. (Tr. 23, 24)

Applicant fell off a building several years ago and injured himself. He has recurring pain and takes the 10 mg. Hydrocodone (a.k.a. Lortabs) tablets every day to relieve his pain. He takes one tablet every six hours for a total of four tablets per day. He has a prescription from his physician for that medication. The other narcotic substances Applicant had in the Tylenol bottle belonged to a handicapped friend of his who dropped his medications in Applicant’s car one day when Applicant gave him a ride to a hobby store. Applicant later found the few remaining Xanax and Oxycodone tablets in his car and placed them in the Tylenol bottle until he could return them to his friend. The arrest for DUI occurred before Applicant could accomplish that task. His friend submitted a written notarized statement dated March 26, 2013 admitting he did spill the medications in Applicant’s car. Applicant’s violation was that he had the prescription medications in a bottle other than the original container. Now he carries his daily dosage of three pain killers in a proper container with his name on it and labeled for the medication. (Tr. 24-39, 58, 59; Exhibits 1, 3, E)

Applicant admitted he drank alcohol from 1989 to 2011. His arrests are evidence also of his past intoxications. Applicant states that he drinks occasionally now and consumes only beer with a shot of whiskey at some times. He claimed he has not been intoxicated in more than a year. (Tr. 23; Answer with attachments)

Applicant has eight delinquent debts totaling $148,821. Two of those debts, Subparagraph 4.cfor $113,596 and Subparagraph 4.hfor $32,489 were owed on farm property owned by Applicant’s father who had the same name as Applicant. (Tr. 46-63; Exhibits 4-7, B)

The debt for $291 in Subparagraph 4.a is owed by Applicant and not his father, as a subsequent document from Applicant showed. He will pay the debt within the next two weeks from March 26, 2013 or he will pay it with an installment plan to remove it from his credit record. This debt is being resolved. (Tr. 46; Exhibits 4-7, D)

The debt for $519 in Subparagraph 4.bis a telephone bill owed by Applicant. He claims he does not owe it, and the account is closed by the creditor. It has not been removed from Applicant’s credit record. Applicant attached a letter from the creditor to his Answer showing the account is closed by their office. The letter is dated December 1, 2010. (Tr. 47, 48; Exhibits 4-7; Answer and attachment) The $113,596 judgment against Applicant in Subparagraph 4.cis not owed by Applicant. It pertains to the farm owned by his father who is now deceased. The judgment and lien filing sheet included as a government exhibit shows a different social security number than Applicant’s as the debtor. It also shows Applicant’s stepmother as a judgment debtor. The latest credit report shows a zero balance on Applicant’s record for this debt. This debt is not owed by Applicant. (Tr. 48, 49, 53; Exhibits 6, 7; Answer)

Subparagraph 4.dcontains a debt for a medical account in the amount of $196. The debt dates from 2008. Applicant suspects it resulted from his fall from the roof and this debt remains from what the Workers Compensation System did not pay. It appears on the credit report from 2009 but not on the March 2013 credit report. This debt is resolved. (Tr. 50; Exhibits 4, 6, 7; Answer)

Subparagraph 4.e alleges Applicant owes $70 on a medical account. His Answer contains an attachment showing the debt was paid in October 2010. This debt is resolved. (Tr. 51; Exhibits 4-7; Answer and attachments)

Subparagraph 4.fcontains a debt for $1,378 which is owed to NCO Financial. It arose in 2008. It is a duplicate of the debt listed in Subparagraph 4.b. This debt is resolved. (Tr. 51; Exhibits 4-7; Answer with attachments)

Subparagraph 4.ghas a debt listed for $282 owed to a medical provider. It originated in 2008. This debt was paid by an insurance company. It does not appear on Applicant’s latest credit reports. This debt is resolved. (Tr. 51, 52; Exhibits 4-7; Answer with attachments)

The last debt listed in the SOR is Subparagraph 4.hin the amount of $32,489. Applicant asserts the debt belonged to his father. He does not know if his father paid the debt before he died. This obligation does not appear on Applicant’s credit reports. The signature on the Answer and that on the Agreed Judgment documents from 2002 Applicant submitted are not the same signature. This debt is not Applicant’s. (Tr. 53, 54; Exhibits 4, 5, 7, A, B; Answer with attachments)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the 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 (AG ¶ 2(a)). 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 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, 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 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. One condition applies: (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.

occurred away from Applicant’s work site.

AG ¶ 23 provides conditions that could mitigate security concerns. Two conditions might apply:

(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; 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 denied in his Answer that he consumed alcohol to excess and to the point of intoxication between 1989 and 2011. He admitted being a social drinker. The evaluation program in which he engaged in 2011 after his DUI arrest concluded he had no symptoms of being an alcohol abuser or having any dependency. His progress was good throughout the three-month program.

Applicant’s first DUI occurred 22 years ago when he was 18 years old and driving around a college campus. The next event occurred in 2011. Therefore, much time has passed between these infrequent events. They do not cast doubt on Applicant’s current reliability, trustworthiness, or good judgment. AG ¶ 23(a) applies.

Applicant successfully completed his outpatient counseling program in 2011. There were no treatment recommendations or any type of prognosis, favorable or unfavorable, from the licensed clinical social worker after Applicant completed the program. AG ¶ 23(d) does not apply on the facts except that no problem requiring aftercare was signified by the evaluator. Guideline H, Drug Involvement

AG ¶ 24 expresses the security concern pertaining to illegal drugs:

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.

(a) Drugs are defined as mood and behavior altering substances, and include:

(1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and

(2) inhalants and other similar substances;

(b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

AG ¶ 25 describes conditions that could raise a security concern and may be disqualifying. One applies based on the facts presented in Applicant’s case:

(a) any drug abuse (see above definition);

(b) testing positive for illegal drug use;

(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

(d) diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence;

(e) evaluation of drug abuse or drug dependence by a licensed clinical social worker who, is a staff member of a recognized drug treatment program;

(f) failure to successfully complete a drug treatment program prescribed by a duly qualified medical professional;

(g) any illegal drug use after being granted a security clearance; and,

(h) expressed intent to continue illegal drug use, or failure to clearly and convincingly commit to discontinue drug use. Applicant’s drug involvement arose because his arrest in 2011 found certain named prescription medications in a Tylenol bottle, not their original containers, and for which Applicant did not have prescriptions. He was found in possession of medications for which he did not have a prescription. Therefore, AG ¶ 25(c) applies.

Applicant did not use illegal drugs. He does not have a diagnosis of drug abuse or dependency from any licensed medical professional. Applicant does not have any disqualifying conditions under this security concern. Therefore, AG ¶ 25(d), (e), and (f) do not apply. The disqualifying conditions AG ¶ 25 (a), (b), (g), and (h) do not apply based on the facts of the case.

AG ¶ 26 provides conditions that could mitigate security concerns. One of them applies:

(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; and,

(4) a signed statement of intent with automatic revocation of clearance for any violation;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; 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.

The mitigating condition AG ¶ 26(a), which states, “behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness or good judgment” applies. Applicant explained the few pills beyond the Hydrocodone pain killers he used and for which he had a prescription belonged to a handicapped friend who dropped them in Applicant’s car several days before the arrest. Applicant intended to return them to the friend but had not yet accomplished that task. The friend submitted a written and notarized statement verifying these assertions.

Also considered it the fact that Applicant carried his friend’s spilled medications and his daily dosage of three pain killers in the Tylenol bottle because it was more convenient than carrying the large bottle of his medications. He has now obtained and uses a proper container, labeled with his name and the prescription, to transport his pain killers. Applicant has remediated the violation.

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern pertaining to personal conduct:

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 following will normally result in an unfavorable clearance action or administrative termination of further processing for clearance eligibility:

(a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, and cooperation with medical or psychological evaluation; and,

(b) refusal to provide full, frank and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. Two conditions might apply:

(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information; and

(e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group.

AG ¶ 16(c) applies because there are security concerns under the Alcohol Consumption and the Drug Involvement guidelines. He also has several delinquent debts that he did not address as quickly as he should have. Considered as a whole they raise questions about Applicant’s judgment, trustworthiness, reliability, lack of candor, or unwillingness to comply with rules and regulations.

Furthermore, AG ¶ 16(e) applies because Applicant’s actions involving alcohol and the medication drugs create a vulnerability to exploitation, manipulation, or duress within his professional and personal community that may arise. The recent DUI and the possession of someone else’s prescribed medications raise serious questions as to Applicant’s motivations.

AG ¶ 17 provides conditions that could mitigate security concerns. There are three mitigating factors that apply:

(c) 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 cast doubt on the individual's reliability, trustworthiness, or good judgment;

(d) 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; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

Applicant’s alcohol incidents occurred 22 years apart. This behavior is infrequent. The first situation occurred when Applicant was 18 years old and acting out on a college campus. Applicant’s 2011 arrest was an isolated incident and most of the charges were dismissed. His alcohol evaluation in the DUI program in 2011 showed he was neither an alcohol abuser nor dependent. It happened under unique circumstances, particularly regarding the prescription medications belonging to his friend and it is not likely to recur. Therefore, AG ¶ 17(c) is applicable.

Applicant explained the incident in 2011 and in 1989 at the hearing. He was truthful and credible. His friend to whom the prescription medications belonged submitted a signed and notarized statement explaining his ownership of the medications and the true nature of the incident that coincided with Applicant’s explanation. He testified he changed his container holding his painkiller medications and will not allow himself to be placed in a similar position in the future now that he understands the legal requirements. Such behavior will not recur. AG ¶ 17(d) applies.

Applicant has taken positive steps to eliminate vulnerability to exploitation, duress, manipulation, or duress. He does not have an alcohol problem as shown in the evaluation. He drinks infrequently. The possession of the prescribed medications was explained very clearly by Applicant and his friend. His current pattern of behavior as he discussed at the hearing, such as doing his work, resting at home, and paying his delinquent debts or resolving them in other ways, show he has a positive attitude toward work and has taken positive steps to reduce or eliminate any vulnerability to exploitation, manipulation, or duress. AG ¶ 17(e) appears based on the total factors involved in 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 at AG ¶ 19 contains nine disqualifying conditions that could raise security concerns. Two conditions are applicable to the facts found in this case:

(a) inability or unwillingness to satisfy debts; and

Applicant’s earlier credit records showed he accumulated $148,821 in delinquent debt from 2007 to the present time that apparently was unpaid. Applicant has eight delinquent debts listed in the SOR.

The guideline in AG ¶ 20 contains six conditions that could mitigate security concerns arising from financial difficulties. Two conditions may be applicable:

(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 paid the $291 in Subparagraph 4.a in April 2013. The accounts in Subparagraphs 4.b ($519) and 4.f ($1,378) are duplicates and the account is closed. The creditor submitted a letter to that effect dated December 2010.

The debts in Subparagraphs 4.d ($196) and 4.g ($282) were paid by the state workers compensation system and Applicant’s medical insurance, respectively. They are resolved.

The debts in Subparagraphs 4.c ($113,596) and 4.h ($32,489) belong to his deceased father or the decedent’s estate and are not Applicant’s debts. He has a legitimate and reasonable basis to dispute these debts.

AG ¶ 20(d) applies because of Applicant’s good-faith efforts to repay his delinquent debts. AG ¶ 20(e) applies because the two largest debts were discovered not to be owed by Applicant, but by his late father who had the same name and a different social security number and signature.

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 an applicant’s 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) 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.

AG ¶ 2(c) requires each case must be judged on its own merits. 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 credible and honest individual who explained his history in a direct and persuasive manner. He lives a simple life and works hard for his income. His DUI actions were voluntary and he admitted them. He followed the court order and successfully completed the DUI assessment. He did everything asked of him. His drug involvement is not an issue as described in the guideline. Applicant resolved each of the eight delinquent debts alleged in the SOR. This man is not a security threat to his employer or the nation. He is trustworthy and reliable based on his personal history.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his alcohol consumption, drug involvement, personal conduct, and financial considerations issues. I conclude the whole-person concept for Applicant.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline G: FOR APPLICANT

Subparagraphs 1.a to 1.c: For Applicant

Paragraph 2, Guideline H: FOR APPLICANT

Paragraph 3, Guideline E: FOR APPLICANT

Paragraph 4, Guideline F: FOR APPLICANT

Subparagraphs 4.a-4.h: For Applicant

CONCLUSION

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

_________________ PHILIP S. HOWE Administrative Judge

FOOTNOTES

Applicant had two DUI arrests, one in 1989 and another in 2011. These incidents