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______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 19-03913 ) ) Applicant for Security Clearance ) Appearances For Government: Jeff Nagel, Esq., Department Counsel For Applicant: Pro se August 2, 2021

CEFOLA, Richard A., Administrative Judge: Statement of the Case On August 11, 2020, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guideline F. The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance. Applicant answered the SOR soon thereafter, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on April 30, 2021. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on April 30, 2021, scheduling the hearing for June 21, 2021. The hearing was convened as scheduled. The Government offered Exhibits (GXs) 1 through 7, which were admitted into evidence. Applicant testified on his own behalf. Applicant offered nine documents, which I marked Applicant’s Exhibits (AppXs) A through I. DOHA received the transcript of the hearing (TR) on July 1, 2021.

Applicant admitted to the allegations in SOR ¶¶ 1.a, 1.b. and 1.e. He denied SOR allegations ¶¶ 1.c. and 1.d., and 1.f.~1.i. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is a 60-year-old employee of a defense contractor. He has been employed with a defense contractor for “30 years,” with a break in 2014 when Applicant was “laid off” and was advised by counsel to then retire. (TR at 20 line 21 to page 22 at line 18.) In 2002, he had been injured on the job; and as such, “worked with a limited workload.” (TR at page 24 line 14 to page 25 line 14.) In March of 2015, Applicant’s disability payments were cut off; and Applicant became homeless for “two and a half years,” until he was reemployed in 2018. (TR at page 26 line 15 to page 27 line 25.) He is married, and his wife is in critical condition “with a large mass that needs to be removed,” but Applicant is able to pay her medical bills. (TR at page 40 lines 6–25.) Guideline F - Financial Considerations 1.a. and 1.b While homeless, from 2015–2018, Applicant’s financial documents were misplaced in “a storage unit;” and as such, he was unable to file both Federal and state tax returns for tax years 2015–2017 in a timely fashion. (TR at page 30 line 25 to page 34 line 22.) They have since been filed, prior to the issuance of the SOR, as evidenced by Federal and state tax documentation. (AppXs A and B.) 1.c. Applicant has paid his Federal income taxes owed for tax year 2017 by way of installments, as evidenced by documentation from the Internal Revenue Service (IRS). (TR at page 35 lines 1–2, and AppX C.) 1.d. Applicant’s past-due debt to Creditor D has been paid by wage garnishment, as evidenced by documentation from Creditor D’s counsel. (TR at page 35 line 4 to page 36 line 18, and AppX D.) 1.e. Applicant’s past-due debt to Creditor E has been settled and paid, as evidenced by banking documentation. (TR at page 36 line 19 to page 37 line 3, and AppX E.) 1.f. Applicant’s past-due debt to Creditor F has been paid, as evidenced by documentation from Creditor F. (TR at page 37 lines 4–10, and AppX F.) 1.g. Applicant’s past-due debt to Creditor G has been paid, as evidenced by documentation from the successor creditor to Creditor G. (TR at page 37 line 11 to page 38 line 4, and AppX G.) 1.h. Applicant’s past-due debt to Creditor H has been paid, as evidenced by documentation from the successor creditor to Creditor H. (TR at page 38 lines 5–21, and AppX H.)

1.i. Applicant’s past-due debt to Creditor I has been settled and paid, as evidenced by documentation from Creditor I. (TR at page 38 line 22 to page 39 line 1, and AppX I.)

When evaluating an applicant’s national security eligibility, 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 are to be used in evaluating an applicant’s national security eligibility. 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 AG ¶ 2 describing 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. 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.” 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. Directive ¶ E3.1.15 states 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person who applies for access to classified information seeks to enter 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 (EO) 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

Guideline F - Financial Considerations The security concern relating to the guideline 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. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage. The guideline notes several conditions that could raise security concerns under AG ¶ 19. Three are potentially applicable in this case: (a) inability to satisfy debts; (c) a history of not meeting financial obligations; (f) failure to file or fraudulently filing annual Federal, state, or local income tax returns or failure to pay annual Federal, state, or local income tax as required; Applicant had past due tax filings and taxes due, and other past-due debts. The evidence is sufficient to raise these disqualifying conditions. AG ¶ 20 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 20 including: (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; (d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; and (g) the individual has made arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance with those arrangements. Applicant’s past financial difficulties were caused by conditions clearly beyond his control: being laid off, the cut-off of disability payments, and homelessness. He has since filed and paid his taxes, and addressed all of his alleged past-due debts. He has demonstrated that future financial problems are unlikely. Mitigation under AG ¶ 20 has been established. Financial Considerations are found for Applicant.

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 facts and circumstances surrounding this case. I have incorporated my comments under Guideline F in my whole-person analysis. 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 Financial Considerations security concerns.

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Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are: Paragraph 1, Guideline F: FOR APPLICANT Subparagraphs 1.a.~1.i.: For Applicant

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 national security eligibility for a security clearance. Eligibility for access to classified information is granted. Richard A. Cefola Administrative Judge