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ISCR 07-00693: Guideline F security clearance hearing, granted (2008) · CASE

ISCR Case 07-00693granted

Case headnote

ISCR Case No. 07-00693

grantedApr 30, 2008· Hon. Wilford H. Ross· hearing

Summary

A 39-year-old single male with a Bachelor of Science degree sought to retain his security clearance, facing allegations under Guideline F (Financial Considerations). The Statement of Reasons cited a years-long dispute with a Credit Union and its collection agencies regarding a debt's validity and amount. Additionally, the applicant consistently denied ever holding an account with Bank One or owing money to that creditor, claiming identity confusion.

Disqualifying conditions under AG ¶ 19(a) and AG ¶ 19(c) were raised. However, the Administrative Judge applied mitigating conditions AG ¶ 20(a), AG ¶ 20(d), and AG ¶ 20(e). The applicant demonstrated good faith efforts to resolve the Credit Union debt and provided documented proof of identity confusion concerning the Bank One debts.

Ultimately, the Judge determined that the applicant's financial issues were unlikely to recur due to the unique circumstances of the disputes. Based on these mitigating factors, the applicant was GRANTED eligibility for access to classified information.

Why the applicant prevailed

The applicant demonstrated good faith efforts to resolve disputed debts with the Credit Union.
The applicant provided documented proof of identity confusion regarding debts with Bank One.
The applicant's financial issues were deemed unlikely to recur due to the unique circumstances surrounding the disputes.

Conditions referenced

Disqualifying

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

Mitigating

AG ¶ 20(a)appliedBehavior Happened so Long Ago, Was Infrequent, or Occurred Under Circumstances Unlikely to Recur
AG ¶ 20(d)appliedGood-faith Effort to Repay Overdue Creditors or Resolve Debts
AG ¶ 20(e)appliedReasonable Basis to Dispute the Legitimacy of the Past-due Debt

Key rule quoted

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

Procedural posture

SOR issuedOct 3, 2007
Answer filedOct 26, 2007
Hearing heldFeb 21, 2008
Decision dateApr 30, 2008

Cite for

Good Faith Efforts to Resolve Financial Disputes Under Guideline F
Identity Confusion as a Mitigating Factor in Financial Considerations
The Whole Person Concept in Evaluating 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.

From the decision

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

Delinquent debt cited: $15,000 (on a payment plan): “When the car was repossessed the Applicant still owed about $15,000.00.”

Standardized Decision Profile

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

Posture: HearingDecided: granted

The judge found that the Applicant had a long-standing dispute with a Credit Union regarding an automobile loan, which led to a repossession. Despite the financial issues, the judge concluded that the Applicant mitigated the security concerns due to the circumstances surrounding the debts and the Applicant's current reliability and trustworthiness.

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. 07-00693 SSN: ) ) Applicant for Security Clearance ) Appearances For Government: Candace Le’i, Esquire, Department Counsel For Applicant: Pro se April 30, 2008 ______________

STATEMENT OF CASE

______________ ROSS, Wilford H., Administrative Judge: Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP), on February 14, 2006 (Government Exhibit 1). On October 3, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline F for Applicant. 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 revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant filed an Answer to the SOR on October 26, 2007, and requested a hearing before an Administrative Judge. Department Counsel was prepared to proceed on January 7, 2008. I received the case assignment on January 9, 2008. DOHA issued a notice of hearing on January 15, 2008, and I convened the hearing as scheduled on February 21, 2008. The government offered Government Exhibits 1 through 4, which were received without objection. Applicant testified on his own behalf and submitted Applicant’s Exhibits A through E, without objection. I granted Applicant’s request to keep the record open until February 29, 2008, to submit additional matters. On February 25, 2008, he submitted Applicant’s Exhibit F, without objection. DOHA received the transcript of the hearing on February 29, 2008. The record closed on February 29, 2008. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

FINDINGS OF FACT

The Applicant is 39, single and has a Bachelor of Science degree. He is employed by a defense contractor as a network security manager and seeks to retain a security clearance previously granted in connection with his employment. Guideline F, Financial Considerations Subparagraphs 1.a. and 1.b. These two debts are actually part of the same debt to the same financial institution (Credit Union). The Applicant has been in a years long dispute with the Credit Union, and it’s successor collection agencies, about the validity and amount of this debt. He has also attempted to settle this debt over the years. The Applicant bought an automobile from the Credit Union in 1996. The original loan amount was $19,000.00. The car had many problems and for two years the Applicant attempted to fix them. In 1998 he got in a dispute with the Credit Union concerning their reimbursing him for auto repairs he states were authorized by them. He refused to pay any more on the loan for the car until he was reimbursed, and the car was eventually repossessed, also in 1998. When the car was repossessed the Applicant still owed about $15,000.00. (Transcript at 27-43.) Since that time the Applicant has repeatedly attempted to reach a resolution with either the Credit Union or its collection agencies. The Applicant spoke at great length about his problems with how the Credit Union and the collection agencies have handled his account. He submitted written evidence confirming that, on several occasions, he has made reasonable offers to resolve this situation. His most recent written offer was made on February 6, 2007. He last spoke with the financial institution about this debt about two weeks before the hearing. The Applicant is willing to resolve this dispute, and has the money to do so, but no one will work with him to resolve the situation. (Government Exhibit 2 at 2-6; Applicant’s Exhibit F at 3-8; Transcript at 50-55, 76-83, 90-98.) Subparagraph 1.c. The Applicant has consistently denied that he has ever had an account with Bank One, or that he owes any money to this creditor. Once again, the Applicant thoroughly documented his attempts since at least 2004 to resolve this There are three credit reports in evidence. Both debts in the SOR are referenced in Government Exhibit 4, dated March 10, 2006. The Applicant disputed the Credit Union account and it was removed from his credit file, as shown in Applicant’s Exhibit A, dated September 30, 2006; and Government Exhibit 3, dated December 11, 2007. The Bank One debt does appear in Applicant’s Exhibit A, but not in Government Exhibit 3. situation. (Government Exhibit 2 at 7-8; Applicant’s Exhibits A, B and F at 10-12; Transcript at 43-49, 56-70.)1 Mitigation The Applicant submitted evidence showing that on at least one occasion his identity has been confused with someone else’s concerning other debts. (Government Exhibit 2 at 13-14; Transcript at 49-50, 66-70.) The Applicant is a member of the Reserves, as well as working for a Defense contractor. He submitted documentation from his Armed Service showing that he is a respected non-commissioned officer who is considered to have great potential. (Applicant’s Exhibits C, D and E.)

POLICIES

Security clearance decisions are not made in a vacuum. When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised 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. The Administrative Judge’s over-arching adjudicative goal is a fair, impartial and common sense 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. In addition, the Administrative Judge may also rely on his own common sense, as well as his knowledge of the law, human nature, and the ways of the world, in making a reasoned 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, 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. Security clearance decisions include, by necessity, consideration of the possible risk that 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.

Finally, as emphasized by President Eisenhower in Section 7 of Executive Order 10865, “Any determination under this order . . . shall be a determination 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 conditions that could raise security concerns. Under AG ¶ 19(a), an Ainability or unwillingness to satisfy debts@ is potentially disqualifying. Similarly under AG ¶ 19(c), Aa history of not meeting financial obligations@ may raise security concerns. The Applicant admits that he owed the debts set forth in SOR subparagraphs 1.a. and 1.b. In addition, there is some documentary evidence showing that he may owe the debt in subparagraph 1.c. The evidence is sufficient to raise these potentially disqualifying conditions, requiring a closer examination. The guideline also includes examples of conditions that could mitigate security concerns arising from financial difficulties. Under AG ¶ 20(a), the disqualifying condition may be mitigated where Athe 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.@ Almost ten years ago, the Applicant got into a reasonable dispute with the Credit Union, a dispute he has been totally unable to resolve, despite his best efforts. I find the behavior occurred under such unusual circumstances that it is unlikely to recur, and it does not raise concerns about her current reliability, trustworthiness, or good judgment. The evidence raises this potentially mitigating condition. Evidence that Athe individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts@ is also mitigating under ¶ 20(d). The Applicant never denied he owed the Credit Union some amount of money. To the best of his ability over several years he attempted to resolve this situation without success. With regards to Bank One, he has consistently denied having an account with them or owing them money, and thoroughly documented his disputes about that debt. I conclude these potentially mitigating conditions apply. Finally, ¶ 20(e) states that it may be mitigating where “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.” As set forth at length above, the Applicant has a legitimate dispute with both creditors. He has thoroughly documented his efforts to resolve these debts. This mitigating condition clearly applies to the facts of this case.

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) 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 Applicant has a good credit history, with the exception of the debts of concern here. He has legitimate disputes with these creditors, and has behaved reasonably and appropriately in trying to resolve them. Under the particular circumstances of this case, I find that there is little to no potential for pressure, coercion, exploitation, or duress (AG ¶2(a)8)), and that the likelihood of recurrence is close to nil (AG ¶2(a)8)). 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 financial considerations.

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 THE APPLICANT Subparagraphs 1.a through 1.c.: For the 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.

_________________ WILFORD H. ROSS Administrative Judge