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ISCR 14-01454.h1: Guideline D security clearance hearing, denied (2015) · CASE

ISCR Case 14-01454.h1denied

Case headnote

ISCR Case No. 14-01454.h1

deniedMar 17, 2015· Hon. Nichole L. Noel· hearing

Summary

A 49-year-old shipfitter was denied a security clearance due to concerns under Guideline D (Sexual Behavior) and Guideline F (Financial Considerations). The primary issue was a 35-year history of illegal drug use, specifically cocaine, from 1977 to 2012. This included a positive cocaine test on a pre-employment drug screening in 2012.

The applicant had not completed any drug counseling or provided evidence of a lifestyle change to suggest future use was unlikely. His credibility was further undermined by conflicting statements regarding the frequency of his drug use. These factors raised significant concerns about his reliability and trustworthiness.

While the applicant also had two outstanding debts totaling $2,500 and $3,100, these financial considerations were mitigated. However, the extensive and recent history of cocaine use, coupled with a lack of demonstrated rehabilitation, ultimately led to the denial of his security clearance.

Why the applicant was denied

Applicant has a 35-year history of cocaine use, which raises concerns about his reliability and trustworthiness.
Applicant tested positive for cocaine on a pre-employment drug screening in 2012, indicating ongoing drug use issues.
The applicant's conflicting statements regarding the frequency of drug use undermined his credibility.

Conditions referenced

Disqualifying

AG ¶ 24raisedDrug Involvement

Mitigating

AG ¶ 20(d)appliedGood Faith Effort to Repay Debt
AG ¶ 19(a)rejectedInability to Pay Debts
AG ¶ 19(c)appliedDebt Under $5,000

Key rule quoted

“Doubts concerning personnel being considered for access to classified information will be resolved in favor of national security.”
EO 12968, Section 3.1(b)

Procedural posture

SOR issuedJul 17, 2014
Answer filed08/2014
Hearing held—Applicant requested a decision without a hearing.
Decision dateMar 17, 2015

Cite for

Disqualifying Conditions Related to Long-term Drug Use Under Guideline D
Mitigating Conditions for Financial Considerations Under Guideline F
Credibility Issues Arising From Conflicting Statements About Drug Use History

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Tenure: ~2 years: “Applicant, 49, has worked as a shipfitter for a federal contractor since October 2013.”
Delinquent debt cited: $5,600 (on a payment plan): “The SOR alleges that Applicant owes approximately $5,600 in delinquent debt.”

Standardized Decision Profile

SEAD-4 Guideline D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's long history of cocaine use raised significant security concerns that were not mitigated. Although the applicant's financial issues were resolved, the drug involvement concerns led to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found that the financial considerations raised by the applicant's delinquent debts were mitigated, as he demonstrated a good-faith effort to repay them. However, the applicant's long history of drug involvement ultimately led to the denial of his security clearance.

The sub-allegation breakdown is part of the Professional plan. See what it includes.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 14-01454 ) Applicant for Security Clearance )

For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se

03/17/2015 ______________

STATEMENT OF CASE

______________

NOEL, Nichole L., Administrative Judge:

Applicant contests the Department of Defense’s (DOD) intent to deny his eligibility for a security clearance. The security concerns raised by Applicant’s less than $5,000 in outstanding delinquent debt are mitigated. However, Applicant failed to mitigate the concerns surrounding his 35-year history of cocaine use. Clearance is denied.

Statement of the Case

On July 17, 2014, the DOD issued a Statement of Reasons (SOR) detailing security concerns under the drug involvement and financial considerations guidelines.1 DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant Applicant’s security clearance. Applicant answered the SOR and requested a decision without a hearing. The Government submitted its written case on November 17, 2014. A complete copy of the file of relevant material (FORM) and the Directive was provided to Applicant. He received the FORM on December 8, 2014, and filed his response timely. The attachments to the FORM are admitted as Government’s Exhibits (GE) 1-7 and documents comprising Applicant’s response to the FORM are admitted as Applicant’s Exhibits (AE) A-B, without objection from either party.2 The case was assigned to me on January 6, 2015.

PROCEDURAL RULINGS

In the FORM, Department Counsel moved to withdraw SOR ¶ 2.c, regarding a delinquent consumer credit account for $2,400. The motion is granted.

FINDINGS OF FACT

Applicant, 49, has worked as a shipfitter for a federal contractor since October 2013. On his security clearance application, dated October 2013, he disclosed cocaine use, alcohol and drug counseling, and three delinquent consumer credit accounts.3 The ensuing investigation revealed the following information:

Applicant first used cocaine in 1977. However, the record contains conflicting information on the duration and frequency of his drug use. On his security clearance application, Applicant disclosed that he used cocaine a few times a year at parties between 1977 and 2011. He also stated his intent not to use the drug in the future, citing unexplained emotional and physical hardships in his past. In his December 2013 interview with a background investigator, Applicant reported that when he first began using cocaine he would snort one gram one to two nights a week. In the 1990s, his use decreased to three times per year. He continued using at this rate until 2012. He also discussed participating in an outpatient drug and alcohol counseling program for one month in 2011. Applicant explains that he quit the program because the counselor repeatedly accused him of ongoing drug use because he appeared to be in good physical shape. Applicant adopted and verified the accuracy of his subject interview in his May 2014 response to DOHA interrogatories.4

In his August 2014 answer to the SOR, Applicant claims that he tried cocaine in 1977, but did not use the drug again for 12 years. He quantified his use as 12 times in 37 years. In his October 2014 FORM response, Applicant continued to repudiate his subject interview statements. He denied using the drug with the frequency he reported in his subject interview, stating that the statements recorded in the interview were misleading. Applicant claimed he stopped using the drug because his doctor advised that drug use was bad for his health. In 2012, Applicant was denied employment by his current employer for testing positive for cocaine on a pre-employment drug screening. He was required to wait a year before reapplying. Applicant states that he does not have any intent to use cocaine in the future.5

In addition to the past drug use, the investigation confirmed and the SOR alleges that Applicant is indebted to two creditors for approximately $5,600. Applicant admits that he owes the debts, which were incurred during a period of unemployment and underemployment between 2008 and 2013. Since returning to full employment, Applicant claims that he has paid at least $900 toward SOR ¶ 2.a ($2,500) and $1,500 toward SOR ¶ 2.b ($3,100). Applicant provided documentation corroborating three payments toward SOR ¶ 2.band the account balance is now $1,400. He did not provide any documentation to corroborate payments made toward the resolution of SOR ¶ 2.a or the $2,900 he claims to have paid in non-SOR debts.6

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. 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 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.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable security decision.

Section 7 of EO 10865 provides that adverse 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

Financial Considerations

Unresolved delinquent debt is a serious security concern because failure to “satisfy debts [or] 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.”7 Similarly, an individual who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding classified information.8 There is also concern that an individual who is overextended is at risk of having to engage in illegal acts to raise funds.

The SOR alleges that Applicant owes approximately $5,600 in delinquent debt. The allegations are supported by the record, establishing the Government’s prima facie case.9 Applicant has demonstrated an inability to pay his debts as well as a history of not doing so.10 However, the record contains sufficient evidence to mitigate the security concerns regarding his finances. Security clearance adjudications are not debt collection proceedings and an applicant is not required to prove that he is debt free. Applicant has submitted documentation showing that he is making a good-faith effort to repay his delinquent debt. Applicant is participating in a payment plan for one of the two accounts alleged in the SOR.11 The amount of Applicant’s total outstanding delinquent debt is under $5,000 and is an unlikely source of vulnerability, coercion, or exploitation.

Drug Involvement

Applicant’s conduct is disqualifying under the drug involvement guideline. Use of an illegal drug raises concerns about a person’s ability or willingness to comply with laws, rules, and regulations.12 Applicant admitted to having a history of illegal drug use from 1977 to 2012 and to testing positive for cocaine on a pre-employment drug test in 2012.13 Given the conflicting information Applicant’s has provided about his drug use during this adjudication, the record does not support a finding that his drug use was infrequent, that it happened under any unusual circumstances, or that it is unlikely to recur. He has not completed any drug counseling program or provided evidence suggesting a change of lifestyle that would make future use unlikely. While Applicant no doubt felt the consequences of failing his 2012 pre-employment drug test, there is nothing in the record to suggest that the event caused a lasting change in behavior. Applicant’s two plus years of abstinence are not sufficient to mitigate a 35-year history of illegal drug use. None of the drug involvement mitigating conditions apply.

In evaluating the merits of this case, I have considered the potentially disqualifying and mitigating conditions as well as the whole-person concept. Doubts remain about Applicant’s ability to properly handle and safeguard classified information.14 Although the financial considerations concerns are mitigated, concerns regarding Applicant’s long history of drug use remain. Following Egan15 and the clearly- consistent standard, I resolve these doubts in favor of protecting national security.

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, Drug Involvement: AGAINST APPLICANT

Subparagraphs 1.a – 1.b: Against Applicant

Paragraph 2, Financial Considerations: FOR APPLICANT

Subparagraph 2.a – 2.b: For Applicant

Subparagraph 2.c: Withdrawn

CONCLUSION

Based on the record, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Nichole L. Noel Administrative Judge

FOOTNOTES

1 This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended; as well as DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), effective within the Defense Department on September 1, 2006, apply to this case. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). The AG replace the guidelines in Enclosure 2 to the Directive. 2 Department Counsel’s memorandum regarding Applicant’s FORM response is appended to the record as Appellate Exhibit (AP Ex.) I. 3 GE 4. 4 GE 4-5. 5 GE 3, 5; AE A. 6 GE 3-4, 6-7; AE A-B. 7 AG ¶ 18. 8 See ISCR Case No. 11-05365 (App. Bd. May 1, 2012). 9 GE 3, 6-7. 10 AG ¶¶ 19(a) and (c). 11 AG ¶ 20(d). 12 AG ¶ 24. 13 AG ¶¶ 25(a) and (b). 14 AG ¶ 2(a). 15 Navy v. Egan, 484 U.S. 518 (1988).