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ISCR Case 15-01198.h1 — CASE

ISCR Case 15-01198.h1granted

Case Headnote

ISCR Case No. 15-01198.h1

grantedJun 14, 2016· Hon. Erin C. Hogan· hearing

Summary

A 35-year-old defense contractor was granted a security clearance despite concerns under Guidelines F (Financial Considerations), G (Alcohol Consumption), and J (Criminal Conduct). The Statement of Reasons cited a $36,322 judgment from 2009, a $1,319 collection account, and a $97 medical collection account. Additionally, the applicant was found guilty of Extreme DUI with a BAC greater than .20 in December 2009, resulting in a suspended 180-day jail sentence, two years of probation, and a fine.

The judge determined that the applicant had successfully resolved all outstanding debts, including providing evidence that the significant judgment against him was dismissed. This demonstrated responsible financial management, mitigating concerns under Guideline F.

Regarding the DUI, the judge found it to be an isolated incident. The applicant had since abstained from alcohol and complied with all counseling requirements, demonstrating responsible behavior concerning alcohol consumption. Based on these mitigating factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant resolved all outstanding debts and demonstrated responsible financial management.
The applicant's DUI was an isolated incident, and he has since abstained from alcohol and complied with counseling requirements.
The applicant provided evidence that a significant judgment against him was dismissed, mitigating concerns under Guideline F.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)raisedHistory of Not Meeting Financial Obligations

Mitigating

AG ¶ 20(a)appliedBehavior Happened Long Ago or Infrequently
AG ¶ 20(b)appliedConditions Largely Beyond the Person's Control
AG ¶ 20(d)appliedGood-faith Effort to Repay Creditors
AG ¶ 20(e)appliedReasonable Basis to Dispute Legitimacy of Debt

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 9, 2015
Answer filedOct 17, 2015
Hearing held—Decision made on the record.
Decision dateJun 14, 2016

Cite For

Mitigation of Financial Issues Under Guideline F Due to Extenuating Circumstances
Successful Resolution of Debts as a Factor in Granting Security Clearance
Rebuttable Presumption of Responsible Alcohol Consumption Behavior After a DUI Conviction

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found for the applicant on all financial allegations under Guideline F, determining that the debts were either resolved or mitigated by extenuating circumstances. The applicant demonstrated responsible behavior in addressing his financial issues, including the resolution of a collection account and a medical debt, while also disputing a judgment that was ultimately dismissed.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	A $36,322 judgment entered against him in 2009. $36,322	For Applicant	Judgment Against Applicant	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(b) conditions largely beyond the person’s control; acted responsibly (d) good-faith effort to repay or otherwise resolve debts	Claimed Other
1.b	A $1,319 collection account. $1,319	For Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts	Documented Debt Paid in Full
1.c	A $97 medical account placed for collection. $97	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts	Documented Debt Paid in Full

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: grantedTREATMENT COMPLETED · FAVORABLE

The judge found in favor of the applicant regarding the alcohol consumption allegations. The applicant had a past DUI conviction but demonstrated significant changes in behavior, including abstaining from alcohol since 2014 and undergoing evaluations that indicated no current alcohol issues. The judge credited the applicant's efforts to address his past alcohol misuse and concluded that he posed no risk regarding alcohol consumption.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
3.a	The applicant was found guilty of Extreme DUI – BAC greater than .20 in December 2009.	For Applicant	DUI or DWI Alcohol	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.) (c) habitual or binge consumption to the point of impaired judgment	(b) acknowledges the pattern and has established modified use or abstinence (c) participating in counseling/treatment with satisfactory progress, no prior relapse	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found in favor of the applicant regarding the criminal conduct allegations under Guideline J. The applicant's DUI conviction was acknowledged, but the judge determined that the applicant had taken significant steps to address his alcohol consumption and demonstrated rehabilitation, leading to a favorable decision.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was found guilty of DUI Extreme BAC .20 or more in December 2009.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (b) pressured/coerced and unlikely to recur absent that pressure	—
2.b	Applicant was sentenced to a 180 day jail sentence (suspended), probation for two years, and fined.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (b) pressured/coerced and unlikely to recur absent that pressure	—

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: ) ) [Name redacted] ) ISCR Case No. 15-01198 ) ) Applicant for Security Clearance )

For Government: Ray T. Blank, Jr., Esquire, Department Counsel For Applicant: Pro se

06/14/2016 ______________

STATEMENT OF CASE

______________

HOGAN, Erin C., Administrative Judge:

On September 9, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline F, Financial Considerations, Guideline J, Criminal Conduct, and Guideline G, Alcohol Consumption. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DoD after September 1, 2006.

On October 17, 2015, Applicant answered the SOR and requested a decision on the record. Department Counsel issued a File of Relevant Material (FORM) on December 14, 2015. Applicant received the FORM on January 8, 2016. He had 30 days from his receipt of the FORM to submit additional information in response to the FORM. Applicant timely submitted a response to the FORM. (Item 13) Department Counsel had no objections to Applicant’s response to the FORM. (Item 14) On February 26, 2016, the FORM was forwarded to the Hearing Office and assigned to me on March 24, 2016. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted. Rulings on Evidence

Item 12 of the FORM is a portion of the Report of Investigation (ROI) from Applicant’s background investigation. It is a summary of Applicant’s Personal Subject Interview completed by the investigator conducting his background investigation on August 6, 2014. It is unsworn and unauthenticated. DOD Directive 5220.6, enclosure 2, ¶ E3.1.20 states, “An ROI may be received with an authenticating witness provided it is otherwise admissible under the Federal Rules of Evidence.” (see ISCR Case No. 11- 13999 (App. Bd., February 3, 2014)).

Although Applicant, who is representing himself, has not raised the issue via an objection, I am raising it sua sponte because Item 12 is not properly authenticated. Applicant’s failure to mention this issue in a response to the FORM is not a knowing waiver of the rule because he more than likely was unaware of the rule. Waiver means “the voluntary relinquishment or abandonment – express or implied – of a legal right or advantage, the party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it.” Black’s Law Dictionary, 1717 (Bryan A. Garner, editor-in-chief, 9th ed., West 2009).

Department Counsel explained that Applicant had a right to object to Item 12 in footnote 1 of the FORM. I find that putting this information in a footnote is not adequate notice for Applicant to be aware of this right to object to the admissibility of Item 12 in accordance with ¶ E3.1.20 of the Directive. Applicant is a pro se client and does not have the level of sophistication of a trained and licensed attorney. It is likely that he may not have read footnote 1. He did not mention Item 12 in his response to the FORM. In accordance with the Directive, Enclosure 2, ¶ E3.1.20, Item 12 is not admissible and will not be considered in this Decision because the document is not authenticated.

FINDINGS OF FACT

In his response to the SOR, Applicant admits the allegations in SOR ¶¶ 1.b, 1.c, and 2.b. He denies the allegations in SOR ¶¶ 1.a, 2.a, and 3.a. (Item 2 at 3)

Applicant is a 35-year-old employee of a defense contractor who is seeking to obtain a security clearance. He has been with his employer since June 2014. From September 2008 to February 2014, he was self-employed in construction. From April 2004 to September 2008, he was the vice president of a pool and spa contracting business. It was a limited liability corporation (LLC). (A limited liability company is an independent legal entity with an existence separate and apart from its owners, the members.) The highest level of education he has achieved is high school. He is single and has no children. He lives with his girlfriend. (Item 4)

On June 5, 2014, Applicant submitted an Electronic Questionnaires for Investigation Processing (e-QIP). In response to Section 22 – Police Record, Applicant listed that he was found guilty of DUI Extreme BAC .20 or more in December 2009. In response to Section 26 Financial Record, Applicant listed a delinquent cell phone account which was ultimately paid by his employer. (Item 4)

A subsequent background investigation verified this information. In addition, it was discovered that Applicant had a $36,322 judgment entered against him in 2009. (SOR ¶ 1.a: Item 7; Item 9 at 3; Item 10 at 2; Item 11 at 1); a $1,319 collection account (SOR ¶ 1.b: Item 9 at 4); and a $97 medical account placed for collection (SOR ¶ 1.c: Item 9 at 4) Applicant paid the collection account alleged in SOR ¶ 1.bon September 11, 2015. (Item 13 at 5). He appears to have resolved the $97 medical debt alleged in SOR ¶ 1.c. The account is no longer listed on his recent credit reports. (Items 10, 11 and 13)

Applicant disputes the $36,322 judgment alleged in SOR ¶ 1.a. He claims the case was dismissed due to lack of prosecution. The following is background information to explain how the judgment happened. In 2005, Applicant entered into a pool business with an investor. The investor was the president of the LLC and handled the money for the LLC. Applicant was appointed a vice president. He had the construction knowledge. The business was initially quite successful, but his partner’s financial mismanagement and the economic collapse in 2008, led to the demise of the business in 2009. (Item 13 at 45)

Mr. and Mrs. S. filed a civil suit against the pool company LLC, the president of the company, and Applicant for breach of contract. A default judgment was entered against the parties on July 21, 2009. Several attempts were made to garnish wages followed by subsequent orders discharging the garnishee. The president of the company and his wife filed for bankruptcy. On July 12, 2010, a Judgment of Dismissal was entered involving all of the parties. (Item 7 at 2) In his response to the SOR, Applicant provided a copy of the judge’s Judgment of Dismissal Without Prejudice, which occurred on July 9, 2010. The case number was CV 2008-055103. (Item 2 at 4)

Applicant’s credit reports continued to list the $36,322 judgment. The same case number, CV 2008-055103, is listed and it states a judgment was filed in August 2009. (Item 9 at 3; Item 10 at 2; Item 11 at 1) The credit reports do not indicate that the judgment was dismissed on July 9, 2010.

In his response to the FORM, Applicant states that he understood that the civil judgment alleged in SOR ¶ 1.a was a dismissed case. He claims he was never served papers regarding the judgment and no one contacted him to attempt to collect the debt. He claims he has been in contact with the courts and was given information on how to petition for removal of the judgment on his credit report. He is seeking legal help in Arizona in order to resolve this issue. He states, “There was never any wrong-doing on my part, as to be backed up by the police report, this lawsuit was filed under false accusations.” (Item 13 at 1)

I find for Applicant with respect to the debt alleged in SOR ¶ 1.a. This debt was a business debt. The pool business was an LLC, which likely limited Applicant’s personal liability in the matter. Applicant proved that the $36,222 judgment was dismissed against him on July 9, 2010.

Applicant admits to financial problems. He was unable to pay some bills when relocating to a new state to start his new employment. He intended to pay the court fine alleged in SOR ¶ 1.band the medical debt alleged in SOR ¶ 1.conce he began earning money in his new job. A month after he started work, he was required to take a leave of absence to await being medically cleared to fly based on his past alcohol issues which will be discussed in the Alcohol Consumption – Criminal Conduct section. His girlfriend also developed a medical issue which required several surgeries. He was not working from mid-September 2014 until he was called back to work on November 1, 2014. Further issues with his flight medical exam caused extra expenses. After returning to work in May 2015, he was able to pay off both debts alleged in SOR ¶¶ 1.band 1.c. Applicant is now working on rebuilding his credit. He enrolled himself in credit monitoring to help him from getting into financial trouble again. (Item 13 at 1-2)

Applicant provided a January 2016 credit report which indicates the fine alleged in SOR ¶ 1.bwas paid in full. The medical debt alleged in SOR ¶ 1.cis no longer on his credit report. Applicant has only three open accounts listed on his credit report. All accounts are current. (Item 13 at 4 - 23)

Alcohol Consumption - Criminal Conduct

The allegation under Alcohol Consumption and Criminal Conduct concerns Applicant’s apprehension on September 29, 2009, for driving under the influence of alcohol. His BAC was .24. (Item 13 at 28) On December 12, 2009, Applicant was found guilty of EXTREME DUI – BAC GREATER .20 – MISDEMEANOR. He was sentenced to a 180 day jail sentence (suspended), probation for two years, and fined. SOR allegations 2.a and 2.binvolve the same offense. The allegation is cross alleged under Guideline J, Criminal Conduct. (SOR ¶¶ 2.a, 2.b, 2.c: Item 5 at 2; Item 6)

In his response to the SOR, Applicant admits to using poor judgment by driving his car after a night of drinking. He said he parked the car after driving less than a mile because he hit a curb. While walking to a nearby friend’s house, he was approached by police and admitted to being the driver of the truck. He failed a sobriety test. Applicant claims he was never arrested, but was given a ticket with a court date on it. He arranged to have a friend’s mother drive him home. He recalls that his sentence was 15 days in the county jail with work release, 30 days of home detention with work release, with the remaining 135 days suspended, and two years probation. He was released from probation after one year. He was fined $4,846. He also underwent court-mandated counseling. (Item 13 at 2, 24-27) At some point, Applicant stopped paying the court fine. He learned of the unpaid fine during his security clearance background investigation. He could not pay the fine immediately because of the expenses related to moving to another state and starting a new job. Once he had sufficient income to pay the fine, he paid the fine in full. Applicant’s arrest and conviction for DUI was his sole alcohol-related incident. In order to obtain flight status as part of his current job, he was required to undergo several flight medical evaluations related to the alcohol incident. He was required to undergo two evaluations. Both evaluations concluded that Applicant’s alcohol issue is no longer an issue and future problems are not foreseen. Applicant is enrolled in a zero tolerance random alcohol testing program and intends to continue to abstain from drinking alcohol. He drank alcohol socially after the DUI, but stopped drinking alcohol in 2014 when he decided to focus on his new career. (Item 13 at 2)

Applicant’s first psychological evaluation occurred on September 16, 2014. At the time, Applicant drank alcohol socially about 2 to 3 times a month. He did not crave alcohol or experience symptoms of alcohol withdrawal after drinking. Doctor C., the doctor completing his evaluation, indicated Applicant had a past history of alcohol misuse, but he does not meet the alcohol dependence criteria under the DSM IV TR. (Item 13 at 32-34)

On February 24, 2015, Doctor S., wrote a letter indicating that he was working with Applicant to help him acquire a flight medical certificate under special issuance. Applicant met with Doctor S. in person and spoke to him on the telephone on several occasions. Doctor S. notes that Applicant set up random drug screening and that his first test came back negative. He noted Applicant stopped using alcohol on his own accord and that the evaluation resulted in a low probability for alcohol or substance abuse. Applicant passed physical standards for a 2nd class medical classification. Doctor S. will sponsor Applicant for the purposes of Applicant obtaining his flight medical certificate. (Item 13 at 28)

The FAA required Applicant to attend a more extensive follow up evaluation with Dr.K. who had a H.I.M.S. FAA rating which allows him to evaluate pilots who have had DUIs. Applicant did so at his own expense on April 20, 2015. The report indicated Applicant first began drinking in high school, but had no regular pattern of use because he was unable to pay for alcohol. After gaining regular employment, Applicant would drink about once a week at a sport’s bar with friends. About four people would drink four pitchers of beer over a period of four hours. In the summer, Applicant and his friends would spend weekends on a lake. Applicant would drink about 10 beers per day over a period of many hours. He began earning more money in 2002, and was drinking about five nights a week by 2004. (Item 13 at 35-41)

The second evaluation found Applicant’s current use of alcohol was infrequent. He drinks about six drinks per month, and no more than two drinks in a single evening. Dr. K. acknowledged Applicant abused alcohol in the past. He did not suspect that Applicant was currently drinking heavily nor was he concerned that Applicant would return to “high risk” drinking. He recommended Applicant be tested for alcohol 15 times over a period of 12 months. Dr. K. concluded if Applicant followed these terms, “it is my opinion that [Applicant] would be able to safely operate an aircraft without complications from any emotional, behavioral, or cognitive problem caused by alcohol or any drug. There are no mental health disturbances observed in this evaluation.” (Item 13 at 41-54)

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 must be considered when determining an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s 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.

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

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline F, Financial Considerations

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

Failure or inability to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.

The guideline notes several disqualifying conditions that could raise security concerns. I find AG ¶19(a) (an inability or unwillingness to satisfy debts); and AG ¶19(c) (a history of not meeting financial obligations) apply to Applicant’s case. Applicant has encountered financial problems for several years. He was unable to pay his bills because he was unemployed or did not earn enough income.

An individual who is financially irresponsible may also be irresponsible, unconcerned, or careless in their obligations to protect classified information. Behaving irresponsibly in one aspect of life provides an indication of how a person may behave in other aspects of life. A person’s relationship with his creditors is a private matter until evidence is uncovered demonstrating an inability or unwillingness to pay debts under agreed terms. Absent evidence of strong extenuating or mitigating circumstances, an applicant with a history of serious or recurring financial difficulties is in a situation of risk inconsistent with the holding of a security clearance. An applicant is not required to be debt free, but is required to manage his finances in such a way as to meet his financial obligations.

The Government’s substantial evidence and Applicant’s own admissions raise security concerns under Guideline F. The burden shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. (Directive ¶E3.1.15) An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. (See ISCR Case No. 02-31154 at 5 (App. Bd. Sept. 22, 2005))

The guideline also includes examples of conditions that could mitigate security concerns arising from financial difficulties. The following mitigating conditions potentially apply:

AG ¶ 20(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);

AG ¶ 20(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);

AG ¶ 20(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);

AG ¶ 20(d) (the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts); and

AG ¶20(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)

Of the mitigating conditions under Guideline F, I find AG ¶ 20(a) applies because Applicant incurred the alleged debts several years ago. Since that time, Applicant has matured. He resolved the outstanding DUI fine alleged in SOR ¶ 1.band the minor medical debt alleged in SOR ¶ 1.c. I find there are extenuating circumstances with regard to $36,322 judgment filed against Applicant. The judgment was the result of an unresolved business dispute against the pool company, which was a limited liability corporation. Although Applicant was designated a vice president, he handled only the construction part of the business. The president of the company handled the business end of the company.

The $36,322 judgment alleged in SOR ¶ 1.a is the result of a business dispute and happened at a time when the pool company was failing as a result of the economic downturn in 2008. Ultimately, the judgment was dismissed against Applicant in July 2010. The dismissal of the judgment was not updated on Applicant’s credit reports. Although Applicant has struggled financially over the past few years, he has not incurred additional delinquent accounts. He resolved his personal delinquent accounts as soon as he was able to do so. I find the behavior happened so long ago, and occurred under such unusual circumstances that it is unlikely to recur and does not cast doubt on Applicant’s current reliability, trustworthiness, or good judgment.

AG ¶ 20(b) applies because circumstances beyond his control contributed to Applicant’s financial problems. Applicant’s pool company went out of business in 2009 as a result of the economic downturn in 2008. He experienced several periods of unemployment or underemployment. His girlfriend’s health issues caused further financial adversity. Applicant paid the two debts alleged in SOR ¶¶ 1.band 1.cwhen he was financially able to make payments. The judgment alleged in SOR ¶ 1.a was dismissed in July 2010. The entry in his credit reports regarding the judgment needs to be corrected. I conclude he acted responsibly under the circumstances.

AG ¶ 20(d) applies with respect to the debts alleged in SOR ¶¶ 1.band 1.c. When Applicant finally earned some income to apply towards these debts he paid the debts in full.

AG ¶ 20(e) applies regarding the judgment alleged in SOR & 1.a. Applicant disputed the judgment and provided proof that the judgment was dismissed. There is an incorrect entry in his credit report, which he can formally dispute with the credit reporting agencies.

Applicant mitigated the security concerns raised under financial considerations.

Guideline G – Alcohol Consumption

The security concern for Guideline G, Alcohol Consumption, is set forth in 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.

AG ¶ 22 lists disqualifying conditions that could raise a security concern. The following apply to Applicant’s case:

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; and

AG ¶ 22(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.

Applicant’s conviction for Extreme DUI – BAC Greater than .20, Misdemeanor, is sufficient to raise AG ¶¶ 22(a) and 22(c). Applicant’s blood alcohol content on the night of his arrest was 0.24. On the night of his apprehension, it is reasonable to conclude that Applicant binge consumed alcohol to the point of impaired judgment based on his blood alcohol content.

AG ¶ 23 lists the conditions that could mitigate security concerns under alcohol consumption. The following mitigating conditions apply to Applicant’s case:

AG ¶ 23(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;

AG ¶ 23(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

AG ¶ 23(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.

While Applicant experienced a period of heavy drinking in his 20s, he reduced his alcohol intake after his DUI to two drinks in one sitting a couple times a month. When he began the flight evaluation process for his current job, he stopped drinking alcohol completely in 2014. AG ¶¶ 23(a) and 23(b) apply.

AG ¶ 23(d) applies because Applicant successfully completed his court-ordered counseling. He also underwent a series of alcohol evaluations in order to qualify for flight status. Each evaluation acknowledged that while there were concerns in the past, Applicant’s alcohol use is not currently an issue. He has abstained from drinking alcohol for more than one year.

Guideline J, Criminal Conduct

The security concern for Guideline J, Criminal Conduct, is set out in 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.

AG ¶ 31 lists disqualifying conditions that could raise a security concern. The following apply to Applicant’s case:

AG ¶ 31(a) a single serious crime or multiple lesser offenses; and

AG ¶ 31(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted. The above disqualifying conditions apply because Applicant was apprehended and charged with DUI in September 2009. Applicant’s blood alcohol content was 0.24 which resulted in the DUI being classified as Extreme. He was convicted of Extreme DUI – BAC Greater than .20 – a Misdemeanor.

AG ¶ 32 lists the conditions that could mitigate security concerns under criminal conduct. The following mitigating conditions apply to Applicant’s case:

AG ¶ 32(a): so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and

AG ¶ 32(d): There is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.

Applicant’s arrest occurred close to seven years ago and there is no evidence of recent criminal behavior. Applicant appears to have matured since the days of drinking heavily in his youth and is focused on advancing in his career. There is evidence of successful rehabilitation. Security concerns under Criminal Conduct are mitigated.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

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

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. The economic downturn of 2008 adversely affected the pool business LLC that Applicant worked for and served as a vice president. Several periods of unemployment or underemployment adversely affected Applicant’s finances. He was unable to pay all of his debts while he was transitioning to his new job. As soon as he achieved some extra income, he resolved the debts alleged in SOR ¶¶ 1.band 1.c. The $36,322 judgment alleged in SOR ¶ 1.a was dismissed against Applicant in July 2010. I considered that it was a business debt from a failed business and does not indicate frivolous spending by Applicant.

While, Applicant’s 2009 DUI raised concerns under alcohol consumption and criminal conduct, those concerns were mitigated by Applicant’s subsequent maturity, and reduced drinking patterns. He underwent two medical evaluations because of his DUI and was cleared for flight status after each evaluation because his current alcohol use did not present a concern. All security concerns raised in the SOR have been mitigated.

FORMAL FINDINGS

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

Paragraph 1, Guideline F: FOR APPLICANT

Subparagraphs 1.a – 1.c: For Applicant

Paragraph 2, Guideline J: FOR APPLICANT

Subparagraphs 2.a – 2.b: For Applicant

Paragraph 3, Guideline G: FOR APPLICANT

Subparagraph 3.a: 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.

_________________ ERIN C. HOGAN Administrative Judge