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ISCR Case 06-16850.a1 — CASE

ISCR Case 06-16850.a1denied

Case Headnote

ISCR Case No. 06-16850.a1

deniedAug 28, 2007· Hon. Jeffrey D. Billett· appeal

Summary

An applicant representing herself was denied a trustworthiness determination for an ADP position under Guideline F (Financial Considerations). The denial stemmed from significant financial delinquencies totaling approximately $11,600.

Between 1999 and 2006, the applicant accrued 15 delinquent debts. Although she recognized these financial concerns, she did not take steps to resolve them for 15 months. While the applicant did initiate a Chapter 13 bankruptcy plan and made some payments, these efforts were deemed insufficient to mitigate the trustworthiness concerns raised by her financial history.

The judge found that the applicant's financial issues, specifically the number and total amount of delinquent debts and the delay in addressing them, outweighed her assertions of loyalty and job performance. Consequently, the applicant's request for a trustworthiness determination was denied.

Why the Applicant Was Denied

The applicant accrued 15 delinquent debts totaling approximately $11,600 between 1999 and 2006.
The applicant did not take steps to resolve her financial issues until 15 months after recognizing the concerns.
The applicant's efforts to adhere to a debt repayment plan were deemed insufficient to mitigate trustworthiness concerns.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant's recent efforts to repay debts were not sufficient to mitigate the trustworthiness concerns.

Key Rule Quoted

“"The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole."”
— ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006)

Procedural Posture

SOR issuedAug 24, 2006
Answer filed—
Hearing heldMar 19, 2007
Decision dateAug 28, 2007

Cite For

Trustworthiness Concerns Due to Financial Delinquencies Under Guideline F
Insufficient Mitigation of Financial Issues Despite Efforts to Repay Debts
The Burden of Persuasion Lies with the Applicant to Establish Mitigating Conditions.

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

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

APPEAL

SYNOPSIS

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline F DIGEST: In light of the Judge’s findings of fact and the record as a whole, the Judge’s adverse decision is affirmed. CASENO: 06-16850.a1 DATE: 08/28/2007 DATE: August 28, 2007 In Re: ------------- Applicant for ADP I/II/III Position ) ) ) ) ) ) ) ) ADP Case No. 06-16850

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a trustworthiness determination. On August 24, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 19, 2007, after the hearing, Administrative Judge Marc E. Curry denied Applicant’s request for a trustworthiness determination. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30 Applicant raised the following issues on appeal: whether the Judge ignored record evidence as to Applicant’s efforts to pay off her debts; and whether the Judge’s adverse trustworthiness determination is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge made the following findings: Between 1999 and 2006, Applicant accrued 15 delinquent debts in the approximate amount of $11,600. When confronted by an investigator, Applicant stated that she was unable to pay her debts. In October 2006, she retained an attorney to file for Chapter 13 bankruptcy. Under the plan, she is to pay off her debts in monthly increments of $220. Currently she has made three payments. The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a trustworthiness determination if it is arbitrary, capricious, or contrary to law. See Directive ¶¶ E3.1.32.3 and E3.1.33.3. Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In this case, the Judge’s decision includes the following: Applicant was aware that her financial delinquencies posed a trustworthiness concern as early as November 2005. She did not take any steps to resolve them until nearly 15 months later, when she retained an attorney to initiate her . . . bankruptcy filing. Her adherence to the . . . debt repayment plan for the past three months is commendable. However, it remains to be seen whether she can continue to adhere to it in light of her past statements that she could not make payments on her delinquencies while staying current on her routine, cost-of-living expenses. Decision at 5. This demonstrates that the Judge did consider Applicant’s efforts at debt repayment. However, he weighed them against the negative aspects of Applicant’s financial history and concluded that she had not met her burden of persuasion. Applicant’s assertions on appeal that she is a loyal employee do not overcome the Judge’s trustworthiness concerns. An applicant with good or exemplary job performance may engage in conduct that has negative trustworthiness implications. Cf., ISCR Case No. 99-0123 at 3 (App. Bd. Jan. 11, 2000). The Judge’s explanation for his conclusion that Applicant had not overcome the trustworthiness concerns raised by the Government’s evidence is reasonable. See ADP Case 04-08945 at 2 (App. Bd. Apr. 27, 2007). In light of the Judge’s findings of fact and the record as a whole, we conclude that his adverse trustworthiness determination is not arbitrary, capricious, or contrary to law.

ORDER

The decision of the Judge denying Applicant a trustworthiness determination is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D, Billett Administrative Judge Member, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board