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ISCR Case 16-02181 — CASE

ISCR Case 16-02181denied

Case Headnote

ISCR Case No. 16-02181

deniedApr 11, 2019· Hon. Candace Le'i Garcia· hearing

Summary

A 29-year-old single father was denied a security clearance due to concerns under Guidelines E (Personal Conduct), F (Financial Considerations), and J (Criminal Conduct). The denial stemmed from unresolved criminal charges, including multiple assault allegations, and significant financial difficulties.

Specifically, the applicant faced charges for negligent driving, driving under the influence, and three separate instances of second-degree assault. Financially, he had a medical debt of $478, eight student loans totaling $118,656, and four consumer accounts totaling $1,602. Additionally, two charged-off credit card accounts were noted, one for $238 due to identity theft and another for $537.

Despite some mitigating factors related to past charges, the judge determined that the applicant's unresolved criminal conduct and history of not meeting financial obligations raised substantial doubts about his reliability and trustworthiness. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant had unresolved criminal charges, including multiple instances of assault.
The applicant demonstrated significant financial issues, including delinquent debts and a history of not meeting financial obligations.
The applicant's overall conduct raised doubts about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 31(b)raisedCriminal Conduct
AG ¶ 19(a)raisedFinancial Considerations
AG ¶ 19(c)raisedFinancial Considerations

Mitigating

AG ¶ 32(a)appliedCriminal ConductThe applicant resolved his one-time alcohol-related charges in 2014 through probation before judgment.
AG ¶ 20(e)appliedFinancial ConsiderationsThe applicant credibly testified that he believed one debt was due to identity theft and was being resolved through a pending lawsuit.

Key Rule Quoted

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

Procedural Posture

SOR issuedMay 18, 2017
Answer filedMay 31, 2017
Hearing heldNov 27, 2018Applicant waived the 15-day notice requirement.
Decision dateApr 11, 2019

Cite For

Denial of Security Clearance Due to Unresolved Criminal Conduct Under Guideline J
Financial Issues Impacting Security Clearance Eligibility Under Guideline F
Personal Conduct Concerns Affecting Trustworthiness Under Guideline E

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: HearingDecided: denied

The judge found multiple financial concerns under Guideline F, including medical debt, student loans, and charged-off credit card accounts. While the judge ruled in favor of the applicant regarding one charged-off credit card account due to identity theft, the majority of the debts were found against the applicant, leading to a denial of eligibility for access to classified information.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
3.a	Applicant has a medical debt of $478. $478	Against Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
3.b	Applicant has eight student loans totaling $118,656. $118,656	Against Applicant	Student Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
3.c–3.i	7 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant			—	—	—
3.j	Applicant has four consumer accounts totaling $1,602. $1,602	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
3.k	specific text not stated in this decision	Against Applicant	Unspecified Financial	Unknown	—	—	—
3.l	Applicant has a charged-off credit-card account for $238 due to identity theft. $238	For Applicant	Credit Card Debt	Admitted	—	(e) reasonable, documented basis to dispute the debt	—
3.m	Applicant has another charged-off credit-card account for $537. $537	Against Applicant	Credit Card Debt	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: HearingDecided: denied

The judge found against the applicant on the overall criminal conduct concerns under Guideline J, despite some allegations being ruled in the applicant's favor. The applicant admitted to several charges, including driving under the influence and multiple counts of second-degree assault, which contributed to the denial of eligibility for access to classified information.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	specific text not stated in this decision	For Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Denied	—	—	—
1.b	Applicant was charged with negligent driving in a careless and imprudent manner, endangering property, life, and person, and driving under the influence.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented Rehabilitation Evidence
1.c	Applicant was charged with second-degree assault.	For Applicant	Assault or Battery	Charged Not Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Documented Rehabilitation Evidence
1.d	Applicant was charged with second-degree assault for the third time.	For Applicant	Assault or Battery	Charged Not Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.e–1.f	2 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		Charged Not Convicted		—	—	—

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: ) ) ) ISCR Case No. 16-02181 ) Applicant for Security Clearance ) Appearances For Government: Daniel F. Crowley, Esq., Department Counsel For Applicant: Pro se ______________

STATEMENT OF CASE

______________ GARCIA, Candace Le’i, Administrative Judge: Applicant has not mitigated the criminal conduct, personal conduct, and financial considerations security concerns. Eligibility for access to classified information is denied. Statement of the Case On May 18, 2017, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline J (criminal conduct) and Guideline E (personal conduct). The action was taken under Executive Order (Exec. Or.) 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).1 1 I considered this case under the AG implemented by DOD on June 8, 2017. I also considered it under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 04/11/2019

Applicant responded to the SOR on May 31, 2017, and requested a hearing before an administrative judge. The case was assigned to me on January 17, 2018. The case was closed due to loss of jurisdiction on January 23, 2018, as Applicant was separated by his sponsor employer, a DOD contractor, in August 2017. The case was reopened and assigned to me on October 22, 2018, when Applicant was re-sponsored by another DOD contractor.

On November 2, 2018, the Government amended the SOR pursuant to ¶ E3.1.17 of the Directive, to add allegations under Guideline F (financial considerations), numbered ¶¶ 3.a-3.m. Applicant responded to the amended SOR on November 9, 2018. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing (NOH) on November 13, 2018, scheduling the hearing for November 27, 2018. Applicant waived the 15-day notice requirement. I convened the hearing as scheduled.

Government Exhibits (GE) 1 and 3 through 13 were admitted in evidence without objection. I sustained Applicant’s objection to the admission of GE 2, consisting of unauthenticated reports of investigation for background interviews conducted on February 18 and March 24, 2016, and it was not admitted in evidence. Applicant testified and submitted Applicant Exhibits (AE) A through F, which I admitted in evidence without objection. At Applicant’s request, I kept the record open until January 4, 2019, for additional evidence. By that date, Applicant submitted additional documentation, which I marked collectively as AE G and admitted in evidence without objection. DOHA received the hearing transcript (Tr.) on December 6, 2018.2

FINDINGS OF FACT

Applicant admitted the allegations in SOR ¶¶ 1.b, 1.d-1.f, 3.a-3.m, and he denied SOR ¶¶ 1.a, 1.c, and 2.a. He is 29 years old, single, and he has one child, a minor.3

Applicant graduated from high school in 2007. He earned a bachelor’s degree in 2011 and a master’s degree in 2015. As of the date of the hearing, he was enrolling to earn a second master’s degree. He worked for previous DOD contractors from approximately 2015 to 2017. He received an offer of employment from a DOD contractor in September 2018, contingent on obtaining a security clearance. He has never held a clearance, and his interim clearance from November 2016 was suspended after the issuance of the SOR.4

In September 2012, Applicant was charged with driving with a suspended license; he denied that he was arrested (SOR ¶¶ 1.a, 2.a). He was pulled over by a police officer for driving with a suspended license, which stemmed from an unpaid traffic-related ticket. As instructed by the officer, he left his car parked and a friend

2 Tr. at 21-22, 27-31, 114-116.

3 Applicant’s response to the SOR; Tr. at 8, 15, 37, 61-62, 107-110; GE 1.

4 Tr. at 8-12, 44, 50, 72-78, 104-107; GE 1; AE B.

picked him up. He immediately called the state motor vehicle administration, paid the $100 ticket, and returned to retrieve his car the next day.5

In May 2014, Applicant was charged with negligent driving in a careless and imprudent manner, endangering property, life, and person, and driving under the influence (SOR ¶¶ 1.b, 1.c, 2.a). He was on a date with his child’s mother at a sushi restaurant. He drank sake for the first time. He did not feel intoxicated so he drove home. As he approached his home, the road that he lived on was flooded. He unknowingly drove his car on top of a submerged tree, then called the police for assistance. The responding officer asked him if he had been drinking, and he said “Yes” and disclosed that he had consumed a “couple of sak[e]s.” The officer looked into his eyes with a flashlight and administered a walk-and-turn sobriety test. The officer then placed him in the front seat of the officer’s car, without handcuffs, and drove him to the precinct. There, he was administered a breathalyzer test and tested under the legal limit. He received 18 months of probation before judgment, a $140 fine, and he was ordered to attend alcohol-education counseling. He completed probation, paid the fine, and attended alcohol counseling; he did not receive an alcohol-related diagnosis. (SOR ¶¶ 1.c, 2.a).6

In July 2015, Applicant was charged with second-degree assault (SOR ¶¶ 1.d, 2.a). This was his first domestic-violence-related charge. He was living with his child’s mother and they got into a verbal argument. She called the police and reported that he hit her on her leg, which he denied. The case was placed on a stet docket. In August 2015, the case was taken out of the stet docket when he was again charged with second-degree assault (SOR ¶¶ 1.e, 2.a). He testified that he and his child’s mother got into another argument, after she hit him on his head with a remote. He denied hitting her. He stated that “She was coming at me in an aggressive way,” so he threw her purse at her, and the buckle of the purse scratched her forehead and caused her to bleed. When the police arrived, they immediately arrested him upon seeing the blood on her forehead. At trial, his child’s mother admitted that she lied about the July incident and he was consequently found not guilty of that charge. He received 24 months of probation before judgment for the August charge, and he was ordered to attend domestic-violence counseling. He completed counseling in 2016 and probation in 2017. He has since returned to the counseling program on invitation to share his experiences with other attendees.7

In June 2018, Applicant was charged with second-degree assault for the third time (SOR ¶¶ 1.f, 2.a). He testified that he told his child’s mother that he no longer wanted her living with him. He then went to his weekly church group and returned to a vandalized home. He told her to take what she wanted but leave their son with him, since he was the sole breadwinner. He grabbed her keys and got into a tug-of-war with her over her cell phone, which he wanted to keep because he paid for it. When he let go

5 Tr. at 35-37; GE 4.

6 Tr. at 37-43, 53-56; GE 1, 3, 5-8.

7 Tr. at 43-56, 64-65; GE 1, 3, 9, 10.

of the phone, he fell backwards onto the floor, and as he was standing up, she said “you just hit me, I’m calling the police.” He gathered his belongings and went to a friend’s house to spend the night. In the morning, he reported to the police station to try to provide his statement to any report that she might have filed the previous night. He was given the name and number of the reporting officer, because the officer was not at the station, and he left the officer a voicemail. He returned to the station when the officer did not return his call, and another officer was sent to his home later that day. That officer told him that there was no police report filed and he was not charged. He was thus surprised when he received a court summons reflecting that he had, in fact, been charged with second-degree assault. His child’s mother claimed in a police report that he hit her and placed her in a headlock. He hired an attorney and intends to fight the charge. The case was scheduled for a pre-trial hearing in December 2018.8

Applicant testified that the relationship between him and his child’s mother ended in December 2017. As her name is still on the lease, she has continued to reside in their home approximately two to three days out of the week. He unsuccessfully attempted to remove her name from the lease. He has known her since elementary school. They dated briefly in high school but fell out of touch when their families moved. They reconnected and began dating again in May 2014. He testified that he did not take the time to get to know her, and he learned throughout the course of their relationship that she has a criminal background, to include domestic-violence-related charges from previous relationships. He also learned that “the way that she communicates is through violence. And she’s clever. I have to give that to her because she calls the police.” He testified that he never initiated any violence, as he is not a violent person. He has not brought domestic-violence-related charges against her because she is his child’s mother and does not want her to get into trouble.9

In the future, Applicant intends to be more pragmatic in how he assesses and responds to situations involving his child’s mother, and to call the police if necessary. He no longer intends to protect her at his expense. He does not have any other criminal-related incidents. He testified that his employer was aware of his 2014 and 2015 charges, but he had not yet reported his 2018 charge. While he was concerned about the impact on his employment that the outcome of his 2018 charge would have, he was not concerned about his employer finding out about it.10

The SOR also alleges the following delinquent accounts: a medical debt of $478 (SOR ¶ 3.a); eight student loans totaling $118,656 (SOR ¶¶ 3.b-3.i); and four consumer accounts totaling $1,602 (SOR ¶¶ 3.j-3.m). The debts are established by a 2018 credit bureau report. Applicant also disclosed his debts in his 2015 security clearance application (SCA).11

8 Tr. at 56-63, 66-68, 72, 108-109; GE 11, 13.

9 Tr. at 53-56, 60-62, 64-69, 78-83, 104-105, 107-109, 123-128; GE 1; AE G.

10 Tr. at 53-56, 60-62, 64-69, 78-83, 104-105, 107-109, 123-128; GE 1; AE G.

11 GE 1, 12; AE Q.

Applicant attributed his delinquent debts to being the primary provider from approximately 2014 to 2018 for his child, his child’s mother, and her 10-year-old child from a previous relationship. He was also involved in a no-fault car accident in which his car was totaled. He received $4,000 from the accident, but he had to apply it towards the expense of obtaining another car. He attributed his minor medical debt to his involuntary termination.12

SOR ¶ 3.a is for a $478 medical debt. Applicant testified that he believed he had health insurance after his involuntary termination from a previous employer. He indicated that he did not receive a bill for his visit to an urgent care center for strep throat, and he was unaware of this debt until he received the SOR. He researched the debt and intended to resolve it with his tax refund.13

SOR ¶¶ 3.bthrough 3.i are for Applicant’s eight defaulted student loans from his bachelor’s degree, totaling approximately $118,656. He testified that he first learned that his loans were in default when he began working with the credit-repair company Lexington Law in May 2018 to resolve his delinquent accounts, as he did not receive any delinquent notices. He contacted the U.S. Department of Education after he received the amended SOR in November 2018, and he set up an income-based payment plan of $5 monthly for nine months to get his loans out of default. As of the date of the hearing, he paid a total of $10 towards that plan; he also made a $10 payment in December 2018. He intended to continue to abide by the payment plan, and once his loans were out of default, he intended to make timely monthly payments towards his student loans.14

SOR ¶¶ 3.jand 3.kare for two credit cards in collection for a total of $827. Applicant testified that he cosigned the credit cards for his child’s mother in approximately 2015. He intended to resolve them with his tax refund.15

SOR ¶ 3.lis for a charged-off credit-card account for $238. Applicant testified that he was a victim of identity theft or hacking, so he closed his account with the creditor in 2015. He testified that he is a claimant to a pending federal lawsuit against the creditor, and he believed the account would be resolved through the lawsuit. He testified that he disputed the debt through Lexington Law. Since he canceled his subscription with Lexington Law, he intended to dispute the debt directly with the credit bureaus.16

12 Tr. at 83-105, 108-113.

13 Tr. at 83-85, 91-92; GE 12.

14 Tr. at 92-99, 110-111; GE 12; AE D, E, F, G.

15 Tr. at 102; GE 12.

16 Tr. at 102-104; GE 12.

SOR ¶ 3.mis for another charged-off credit-card account for $537. Applicant testified that this debt is for his credit card, which he forgot about. He intended to resolve it with his tax refund.17

As of the date of the hearing, Applicant worked as a financial analyst for his current employer. He was promoted in October 2018. His annual income was $61,200. He testified that he received financial counseling from three credit-repair companies, Credit Karma in 2016, and Credit Sesame and Lexington Law in 2018. He canceled his subscription to Lexington Law because he did not find them helpful; however, he was continuing to monitor his credit through Credit Sesame. He has also received budget training at work, and he has a budget. He is current on his rent of $1,225 monthly and his car payment of $360 monthly. He continues to be primarily responsible for his child’s expenses, as his child’s mother does not contribute. After expenses, his monthly net remainder is approximately $500. He has a savings account with a balance of $140. He has a retirement account with an unknown balance. He testified that “I’m just now starting to really take control of my finances,” whereas in the past five years, he focused on his immediate, day-to-day expenses.18

Applicant’s previous supervisor described Applicant as an “exceptional member of our team,” and stated that he had “full confidence in [Applicant’s] ability to maintain [a security clearance].” Applicant’s pastor of ten years described Applicant as a highly professional and trustworthy individual. A friend of ten years described Applicant to be an “upstanding, centered, and skilled gentleman.”19

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used 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, 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(a), 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.

17 Tr. at 104; GE 12.

18 Tr. at 66-67, 69-72, 76-79, 83-92, 98-102; AE E, F.

19 AE A, B, C.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

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.

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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of Exec. Or. 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 Exec. Or. 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline J, Criminal Conduct

The security concern for financial considerations 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.

The guideline notes several conditions that could raise security concerns under AG ¶ 31. The following is potentially applicable in this case:

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.

Applicant’s 2012 charge for driving with a suspended license is a traffic-related offense. He was found not guilty of his July 2015 assault charge, after his child's mother admitted that she lied about the underlying incident. I find that AG ¶ 31(b) does not apply to SOR ¶¶ 1.a and 1.dand I find SOR ¶¶ 1.a and 1.din Applicant’s favor.

Applicant’s 2014 alcohol-related charges occurred after he admitted to an officer that he had consumed alcohol prior to driving his car over a tree submerged under water. He acknowledged that he was arrested and charged with assault in August 2015 after the officers saw blood on his child’s mother’s forehead. He acknowledged that he threw her purse at her and the buckle of the purse scratched her forehead causing her to bleed. His 2018 assault charge is pending. AG ¶ 31(b) applies to SOR ¶¶ 1.b, 1.c, 1.e, and 1.f. The potentially relevant mitigating conditions under AG ¶ 32 are as follows: (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;

(d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.

Applicant resolved his one-time alcohol-related charges in 2014 through probation before judgment. AG ¶¶ 32(a) and 32(d) apply to SOR ¶¶ 1.band 1.cand I find SOR ¶¶ 1.band 1.cin Applicant’s favor.

Though Applicant resolved the August 2015 assault charge through probation before judgment, his 2018 assault charge is pending. I am thus unable to find that such conduct is unlikely to recur, that he did not commit the offenses, that there is evidence of successful rehabilitation, or that so much time has elapsed and it does not cast doubt on his reliability, trustworthiness, or good judgment. AG ¶¶ 32(a), 32(c), and 32(d) are not established as to SOR ¶¶ 1.e and 1.f.

Guideline E, Personal Conduct

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

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. I considered the following relevant: (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information; and

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes: (1) engaging in activities which, if known, could affect the person’s personal, professional, or community standing . . . .

For the reasons set forth above, AG ¶¶ 16(c) and 16(e) do not apply to the 2012 traffic-related offense or the July 2015 assault charge in SOR ¶¶ 1.a and 1.d. For the reasons set forth above, AG ¶ 16(c) applies to SOR ¶¶ 1.b, 1.c, 1.e, and 1.f, and AG ¶ 16(e)(1) also applies to SOR ¶ 1.f. While Applicant testified that he reported his 2014 and 2015 charges to his employer, and he was not concerned about his employer finding out about his 2018 assault charge, he had not yet reported it to his employer. He was concerned about the impact that the outcome of his 2018 charge would have on his employment. I have considered all of the mitigating conditions under AG ¶ 17 and considered the following relevant: (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

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

(f) the information was unsubstantiated or from a source of questionable reliability.

For the same reasons as set forth above in my Guideline J analysis, AG ¶¶ 17(c), 17(d), and 17(e) are established as to SOR ¶¶ 1.band 1.c. AG ¶¶ 17(c), 17(d), and 17(e), and 17(f) are not established as to SOR ¶¶ 1.e and 1.f, and thus Applicant has not established mitigation for SOR ¶ 2.a.

Guideline F, Financial Considerations

The security concern for financial considerations is set out in AG ¶ 18:

Failure 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 or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds . . . .

The guideline notes several conditions that could raise security concerns under AG ¶ 19. The following are potentially applicable in this case:

(a) inability to satisfy debts; and

Applicant was unable to pay his debts. The evidence is sufficient to raise AG ¶¶ 19(a) and 19(c) as disqualifying conditions.

Conditions that could mitigate the financial considerations security concerns are provided under AG ¶ 20. The following are potentially applicable:

(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;

(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, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances;

(c) the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit

counseling service, and there are clear indications that the problem is being resolved or is under control;

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

(e) the individual has a reasonable basis to dispute the legitimacy of the past-due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue.

Applicant credibly testified that he believed SOR ¶ 3.lwould be resolved through a pending federal lawsuit in which he is a claimant, as the debt was incurred because he was a victim of identity theft or hacking. AG ¶ 20(e) applies to SOR ¶ 3.land I find SOR ¶ 3.lin Applicant’s favor.

Conditions beyond Applicant’s control, as previously discussed, contributed to his financial problems. Thus, the first prong of AG ¶ 20(b) applies. For the full application of AG ¶ 20(b), he must provide evidence that he acted responsibly under his circumstances. He sought and received credit counseling, and he was continuing to monitor his credit as of the date of the hearing. However, while he learned that his student loans were in default in May 2018, he did not contact the U.S. Department of Education until after he received the amended SOR in November 2018. As of the date of the hearing, he had just started his nine-month rehabilitation plan and his student loans remained in default. He had not yet done anything to resolve his remaining debts, as he intended to do so with his tax refund. I find that AG ¶¶ 20(a), 20(b), 20(c), and 20(d) are not established as to SOR ¶¶ 3.a through 3.kand 3.m.

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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(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. I have incorporated my comments under Guidelines J, E, and F in my whole-person analysis. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude he has not mitigated the criminal conduct, personal conduct, and financial considerations security concerns. Eligibility for access to classified information is denied.

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 J:

AGAINST APPLICANT Subparagraphs 1.a – 1.d:

For Applicant Subparagraphs 1.e – 1.f:

Against Applicant

Paragraph 2, Guideline E:

AGAINST APPLICANT Subparagraph 2.a:

Against Applicant

Paragraph 3, Guideline F:

AGAINST APPLICANT Subparagraphs 3.a – 3.k:

Against Applicant Subparagraph 3.l:

For Applicant Subparagraph 3.m:

Against Applicant

CONCLUSION

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 Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Candace Le’i Garcia Administrative Judge