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ISCR Case 03-22679.h1 — CASE

ISCR Case 03-22679.h1denied

Case Headnote

ISCR Case No. 03-22679.h1

deniedFeb 17, 2006· Hon. Jacqueline T. Williams· hearing

Summary

A 38-year-old male antenna design engineer, employed by a federal defense contractor, was denied a security clearance due to concerns under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). The applicant has a history of criminal conduct, including an arrest for aggravated assault with a deadly weapon in April 2000, which was not prosecuted due to lack of evidence and an expired statute of limitations. In October 2001, he was arrested for driving while intoxicated (DWI), pleaded nolo contendere, and received a suspended 180-day jail sentence, two years of supervised probation, 100 hours of community service, and was ordered to pay $953 in fines and court costs.

Additionally, the applicant has over 10 delinquent debts totaling approximately $22,788. These include two outstanding bank debts of $1,194 and $5,892, a $1,964 tuition debt for which he is seeking deferment, and a disputed $79 cable bill. He claimed to have consolidated and paid off several other debts with his bank in late 2004, and another debt of $791 was also allegedly consolidated. He also stated he attempted to resolve the two bank debts through a payment program, which was not accepted.

However, the applicant provided no evidence to support his claims of debt consolidation or repayment. The judge determined that he failed to mitigate the security concerns related to his financial considerations, leading to the denial of his security clearance.

Why the Applicant Was Denied

Applicant has over 10 delinquent debts totaling approximately $22,788.
He offered no evidence to support his claims of debt consolidation and repayment.
The applicant did not mitigate the financial considerations security concerns.

Conditions Referenced

Disqualifying

E2.A10.1.2.1appliedCriminal Conduct Disqualifying Condition
E2.A10.1.2.2appliedCriminal Conduct Disqualifying Condition
E2.A6.1.2.1appliedFinancial Considerations Disqualifying Condition
E2.A6.1.2.3appliedFinancial Considerations Disqualifying Condition

Procedural Posture

SOR issuedJan 10, 2005
Answer filedMar 28, 2005Requested decision without a hearing.
Hearing held—No hearing held.
Decision dateFeb 17, 2006

Cite For

Denial Based on Financial Considerations Under Guideline F
Impact of Delinquent Debts on Security Clearance Eligibility
Criminal Conduct History Affecting Security Clearance Decisions

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The applicant has over 10 delinquent debts totaling approximately $22,788, which he admitted, except for one debt he believes may belong to his estranged wife. The judge found that the applicant did not mitigate the financial considerations security concerns, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	Applicant allegedly owes a total of approximately $22,788 for 10 different debts incurred by him over the course of several years.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.b	He has not mitigated the financial considerations security concerns.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.c	He offered no evidence in support of his contention that some of these debts were consolidated and being paid off.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.d	He is seeking a deferment on a debt for tuition to a university he attended for $1,964. $1,964	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.e	There are two bank debts outstanding; one is $1,194 and the other is $5,892.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.f	He contends he made several attempts to resolve these two accounts through a payment program, which was not accepted.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.g	There are a number of other debts that he says were consolidated with his bank back in September-October 2004 and allegedly have been paid off.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.h	He indicated that another debt for $791 has also been consolidated with his bank. $791	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.i	He disputes a $79 cable bill because he contends he did not authorize the service. $79	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.j	He has over 10 delinquent debts totaling approximately $22,788. $22,788	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found that the applicant had a history of criminal conduct, including a conviction for driving while intoxicated (DWI) and an aggravated assault charge that was dismissed. Despite these concerns, the judge ruled in favor of the applicant regarding the criminal conduct allegations, citing successful rehabilitation and a lack of recent offenses. However, the overall security clearance was denied due to unresolved financial issues.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The applicant was arrested on April 9, 2000 and charged with Aggravated Assault with a Deadly Weapon, a felony. The charge was never prosecuted because of lack of supporting evidence against the applicant and the statute of limitation has expired.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	—
1.b	In October 2001, he was arrested for driving while intoxicated (DWI). He pled nolo contendere and was sentenced to 180 days in jail, suspended, two years' supervised probation, 100 hours of community service, and ordered to attend a victim's impact panel and to pay fines and court costs of $953.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	Credited Rehabilitation Evidence

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

SYNOPSIS

KEYWORD: Criminal Conduct, Financial DIGEST: Applicant is a 38-year-old male, working as an antenna design engineer for a federal defense contractor since 1997. He was arrested twice. The first charge, for aggravated assault with a deadly weapon in April 2000, was dismissed. His October 2001 arrest for driving while intoxicated resulted in a conviction and included supervised probation, community service, and payment of a fine. He has been alcohol free since 2001. Applicant has over 10 delinquent debts totaling approximately $22,788. He offered no evidence in support of his contention that some of these debts were consolidated and being paid off. He has not mitigated the criminal conduct or financial considerations security concerns. Clearance is denied. CASENO: 03-22679.h1 DATE: 02/17/2006 DATE: February 17, 2006

In re:

-------------------- SSN: -----------

Applicant for Security Clearance

ISCR Case No. 03-22679 DECISION OF ADMINISTRATIVE JUDGE JACQUELINE T. WILLIAMS

APPEARANCES

FOR GOVERNMENT Robert E. Coacher, Esq., Department Counsel FOR APPLICANT Pro Se

SYNOPSIS

Applicant is a 38-year-old male, working as an antenna design engineer for a federal defense contractor since 1997. He was arrested twice. The first charge, for aggravated assault with a deadly weapon in April 2000, was dismissed. His October 2001 arrest for driving while intoxicated resulted in a conviction and included supervised probation, community service, and payment of a fine. He has been alcohol free since 2001. Applicant has over 10 delinquent debts totaling approximately $22,788. He offered no evidence in support of his contention that some of these debts were consolidated and being paid off. He has not mitigated the criminal conduct or financial considerations security concerns. Clearance is denied.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant under Executive Order 10865, Safeguarding Classified Information Within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (the Directive). On January 10, 2005, DOHA issued a Statement of Reasons (SOR) detailing the basis for its decision: criminal conduct under Guideline J and financial considerations under Guideline F. Applicant answered the SOR on March 28, 2005 and requested a decision without a hearing.

Department counsel submitted the government's written case on July 15, 2005. Department Counsel provided a complete copy of the file of relevant material (FORM) to Applicant, along with notice of his opportunity to file objections and submit material to refute, extenuate, or mitigate the allegations. Applicant received the FORM on May 3, 2005. He did not respond to the FORM by the due date. On July 15, 2005, Department counsel submitted Applicant's response to the FORM. The government did not object to this document being submitted out of time. The case was assigned to me on June 15, 2005.

FINDINGS OF FACT

Applicant admits all the allegations stated in the SOR, with the exception of the allegations in ¶ 2.a, a debt he believes may not be his responsibility; he believes it belongs to his wife, from whom he is separated. (1) Those admissions are incorporated herein. After a complete and thorough review of the record evidence as a whole, I find it sufficient to establish the conduct alleged in the SOR. I make the following additional findings of fact:

Applicant is a 38-year-old male, working as an antenna design engineer for a federal defense contractor since 1997. (2) He was married in 1991 and is now separated from his wife.

From 1985 to 1988 he served in the U.S. Army as a Corporal (E-4). From 1988 to 1993, he was in the U.S. Army Reserve as a sergeant (E-5). (3) He has held a security clearance since 1988, until the initiation of this instant action.

He attended a Junior College from 1989until he graduated in June 1993. From 1993 to 1995 he attended a university and graduated in August 1995 with a BEE degree. (4)

Applicant was arrested on April 9, 2000 and charged with Aggravated Assault with a Deadly Weapon, a felony. In a letter dated March 3, 2005, his attorney in this incident, stated "the charge was never prosecuted because of lack of supporting evidence against [Applicant] and the statute of limitation has expired."

In October 2001, he was arrested for driving while intoxicated (DWI). He pled nolo contendere and was sentenced to 180 days in jail, suspended, two years' supervised probation, 100 hours of community service, and ordered to attend a victim's impact panel and to pay fines and court costs of $953. The two-year probation began in July 2004. He attended DWI training and a victim's impact panel session. He has completed about 70 hours of the 100 hours of community service. He has paid all the fines and fees. Since this incident in 2002, he has not consumed alcoholic beverages. (5)

Applicant allegedly owes a total of approximately $22,788 for 10 different debts incurred by him over the course of several years. He admits all of these debts, except one for $6,183, and he is uncertain as to whether this debt is, in fact, his responsibility. He thinks this might belong to his wife from whom he is separated. (6)

Applicant disputes a $79 cable bill because he contends he did not authorize the service. (7) He is seeking a deferment on a debt for tuition to a university he attended for $1,964. There are two bank debts outstanding; one is $1,194 and the other is $5,892. (8) He contends he made several attempts to resolve these two accounts through a payment program, which was not accepted. There are a number of other debts that he says were consolidated with his bank back in September-October 2004 and allegedly have been paid off. These debts are: bank debts for $1,992, $1,713, $2,384, and $596. Moreover, he indicated that another debt for $791 has also been consolidated with his bank. He offered no evidence corroboration that such a consolidation does in fact exist.

POLICIES

Each security clearance decision must be a fair and impartial commonsense decision based on the relevant and material facts and circumstances, and the whole-person concept, along with the factors listed in the Directive. Specifically, these are: (1) the nature and seriousness of the conduct and surrounding circumstances; (2) the frequency and recency of the conduct; (3) the age of the applicant; (4) the motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequences; (5) the absence or presence of rehabilitation, and (6) the probability that the circumstances or conduct will continue or recur in the future. (9) Although the presence or absence of a particular condition or factor for or against clearance is not outcome determinative, the adjudicative guidelines should be followed whenever a case can be measured against this policy guidance.

The sole purpose of a security clearance decision is to decide if it is clearly consistent with the national interest to grant or continue a security clearance for an applicant. (10) The government has the burden of proving controverted facts. (11) The burden of proof in a security clearance case is less than a preponderance of the evidence. (12) Once the government has met its burden, the burden shifts to an applicant to present evidence of refutation, extenuation, or mitigation sufficient to overcome the case against him. (13) Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. (14)

No one has a right to a security clearance (15) and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." (16) Any reasonable doubt about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such sensitive information. (17) The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of an applicant. (18) It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Based upon consideration of all the evidence, I find the following adjudicative guidelines most pertinent to the evaluation of the facts in this case:

Guideline J - Criminal Conduct: a security concern exists when a person has a history or pattern of criminal activity which creates doubt about a person's judgment, reliability, and trustworthiness.

Guideline F - Financial Considerations: a security concern exists when a person has significant delinquent debts. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Unexplained affluence is often linked to proceeds from financially profitable criminal acts. Conditions that could raise a security concern and may be disqualifying, as well as those which would mitigate security concerns pertaining to the adjudicative guidelines, are set forth and discussed in the conclusions below.

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors and conditions, including those described briefly above, I conclude the following with respect to each allegation set forth in the SOR.

Criminal Conduct

Based on all the evidence as a whole, Criminal Conduct Disqualifying Condition (CC DC) E2.A10.1.2.1 (allegations or admission of criminal conduct, regardless of whether the person was formally charged) and CC DC E2.A10.1.2.2 (a single serious crime or multiple lesser offenses), both apply in this case. Applicant has committed two serious offenses. Based on E2.A10.1.2,1 I find that he was convicted of two offenses, aggravated assault with a deadly weapon and DWI. The mere fact that the aggravated assault charge was dismissed, does not mean that he did not commit a heinous crime. Moreover, he admitted committing both offenses. I conclude that E2.A10.1.2.1 applies. Similarly, one allegation was a felony, while the other was a DWI. A felony is a serious crime as is a DWI. Thus, I conclude that CC DC E2.A10.1.2.2 also applies.

I considered all the Criminal Conduct Mitigating Conditions (CC MC) and specifically considered FC MC E2.A10.1.3.1 (the criminal behavior was not recent), CC MC E2.A10.1.3.4 (the person was pressured or coerced into committing the act and those pressures are no longer present in that's person's life), and CC C E2.A10.1.3.6 (there is a clear evidence of successful rehabilitation). The aggravated assault charge occurred in 2000 and was dismissed because of lack of prosecution and supporting evidence; that fact that it was dismissed cannot be used in mitigation under the Directive. Thus, I find that this incident was not recent and since 2000 there is no evidence in the record of any other assault charges. Similarly, the DWI charge occurred in 2001, almost four years ago. Not only is he on supervised probation, he has been sober-free since that incident in 2001. I conclude that FC MC E2.A10.1.3.1 applies here. Since there have not been any other assault charges and since Applicant has been sober-free for more than four years, I conclude that FC MC E2.A10.1.3.4 and FC MC E2.A10.1.3.6 apply here.

Financial Considerations

The security concern arising from financial difficulties is that "an individual who is financially overextended is at risk of having to engage in illegal acts to generate funds." The Directive sets out several potentially disqualifying conditions under this guideline. Financial Considerations Disqualifying Condition (FC DC) E2.A6.1.2.1 arises where there is a "history of not meeting financial obligations." Similarly, FC DC E2.A6.1.2.3 applies where the information shows an "inability or unwillingness to satisfy debts," Applicant has a history of not meeting his financial obligations. He was delinquent on several debts, which continues to date. He did not provide credible proof that some of his bills were consolidated and being paid off. I conclude FC DC E2.A6.1.2.1 and FC DC E2.A6.1.2.3 apply. Various conditions can mitigate the security concerns arising from financial difficulties. I conclude that none of the mitigating conditions under Guideline F, financial considerations, apply in this case.

I considered all the evidence in this case and also considered the "whole person" concept in evaluating Applicant's risk and vulnerability in protecting our national interests. Applicant is a mature individual who encountered financial difficulties, including the inability to timely pay his delinquent debts. His debts are still outstanding and there has been no movement to show that he is in charge of his derogatory financial situation. I am persuaded by the totality of the evidence in this case that Applicant has mitigated the security concerns caused by his criminal conduct. Accordingly, Guideline J, pertaining to criminal conduct, is decided for Applicant. However, Applicant has not mitigated the security concerns caused by his financial difficulties. Accordingly, Guideline F, pertaining to financial considerations, is decided against Applicant.

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,Criminal Conduct (Guideline J): FOR APPLICANT

Subparagraph 1.a For Applicant Subparagraph 1.b For Applicant

Paragraph 2, Financial Considerations (Guideline F): AGAINST APPLICANT

Subparagraph 2.a: Against Applicant Subparagraph 2.b: Against Applicant Subparagraph 2.c: Against Applicant Subparagraph 2.d: Against Applicant Subparagraph 2.e: Against Applicant Subparagraph 2.f: Against Applicant Subparagraph 2.g: Against Applicant Subparagraph 2.h: Against Applicant Subparagraph 2.i: Against Applicant Subparagraph 2.j: Against Applicant

DECISION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

Jacqueline T. Williams Administrative Judge 1. Item 3, Applicant's Answer, dated March 28, 2005. 2. Security Clearance Application (SF 86), dated February 1, 1999. 3. Id. at 6, 31. 4. Id. at 2. 5. Item 3, supra note 1, at 2. 6. Id. at 6. 7. Id. at 7. 8. Id. at 6, 7. 9. Directive, Enclosure 2, ¶ E2.2.1. 10. ISCR Case No. 96-0277 (July 11, 1997) at 2. 11. ISCR Case No. 97-0016 (December 31, 1997) at 3; Directive, Enclosure 3, ¶ E3.1.14. 12. Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988). 13. ISCR Case No. 94-1075 (August 10, 1995) at 3-4; Directive, Enclosure 3, ¶ E3.1.15. 14. ISCR Case No. 93-1390 (January 27, 1995) at 7-8; Directive, Enclosure 3, ¶ E3.1.15. 15. Egan, supra note 9, at 531. 16. Id. 17. Id.; Directive, Enclosure 2, ¶ E2.2.2. 18. Executive Order 10865 § 7.

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

SYNOPSIS

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES