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ISCR Case 16-03323.h1 — CASE

ISCR Case 16-03323.h1granted

Case Headnote

ISCR Case No. 16-03323.h1

grantedOct 11, 2017· Hon. Robert J. Tuidar· hearing

Summary

The applicant, a 50-year-old claims advocate employed by a defense contractor, sought a public trust position under Guideline F due to financial considerations. The applicant had six debts, all of which were resolved or being addressed through payment plans. The judge found that the applicant's financial issues were largely due to unemployment and that she demonstrated responsible financial behavior, leading to a decision to grant eligibility for a public trust position.

Under Guideline F (Financial Considerations), the Statement of Reasons alleged the following: a student loan placed in collections in the amount of $21,071 (1.a). a student loan placed in collections in the amount of $12,397 (1.b). a collection account in the amount of $368 (1.c). a medical collection account in the amount of $273 (1.d). a medical collection account in the amount of $35 (1.e). a medical collection account in the amount of $35 (1.f).

The judge granted the clearance. The government raised disqualifying conditions AG ¶ 19(a), AG ¶ 19(b), AG ¶ 19(c). The judge applied mitigating conditions AG ¶ 20(b), AG ¶ 20(d), AG ¶ 20(e). The decision turned on the following: All alleged debts were resolved or being addressed through payment plans; The applicant demonstrated responsible financial behavior despite previous unemployment; The applicant's long-term employment and dedication to her role were noted favorably.

Why the Applicant Prevailed

All alleged debts were resolved or being addressed through payment plans.
The applicant demonstrated responsible financial behavior despite previous unemployment.
The applicant's long-term employment and dedication to her role were noted favorably.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability to Satisfy Debts
AG ¶ 19(b)raisedUnwillingness to Satisfy Debts Regardless of the Ability to Do So
AG ¶ 19(c)raisedHistory of Not Meeting Financial Obligations

Mitigating

AG ¶ 20(b)appliedConditions Largely Beyond the Person's Control
AG ¶ 20(d)appliedGood-faith Effort to Repay Overdue Creditors
AG ¶ 20(e)appliedReasonable Basis to Dispute the Legitimacy of Past-due Debt

Key Rule Quoted

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

Procedural Posture

SOR issuedDec 27, 2016
Answer filedJan 30, 2017Requested decision without a hearing.
Hearing held—Decision made without a hearing.
Decision dateOct 11, 2017

Cite For

Resolution of Multiple Debts Under Guideline F
Consideration of Financial Issues in the Context of Unemployment
Application of Mitigating Conditions for Financial Considerations

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: granted

The judge found that the applicant had several financial debts but resolved them through payments and disputes. All debts were either paid, settled, or disputed, leading to a favorable decision for the applicant under Guideline F.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	a student loan placed in collections in the amount of $21,071 $21,071	For Applicant	Student Loan Debt	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts (e) reasonable, documented basis to dispute the debt	Documented Debt Paid in Full
1.b	a student loan placed in collections in the amount of $12,397 $12,397	For Applicant	Student Loan Debt	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts (e) reasonable, documented basis to dispute the debt	Documented Debt Paid in Full
1.c	a collection account in the amount of $368 $368	For Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts (e) reasonable, documented basis to dispute the debt	Documented Debt Paid in Full
1.d	a medical collection account in the amount of $273 $273	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts	Documented Debt Paid in Full
1.e	a medical collection account in the amount of $35 $35	For Applicant	Medical Debt	Denied	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	(e) reasonable, documented basis to dispute the debt	Claimed Other
1.f	a medical collection account in the amount of $35 $35	For Applicant	Medical Debt	Denied	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	(e) reasonable, documented basis to dispute the debt	Claimed Other

Descriptive standardized rendering of a decided public case (Guideline F). 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: ) ) ) ADP Case No. 16-03323 ) Applicant for Security Clearance )

For Government: Chris Morin, Esq., Department Counsel For Applicant: Pro se

10/11/2017 ___________

STATEMENT OF CASE

___________

TUIDER, Robert, Administrative Judge:

This case involves trustworthiness concerns raised by Guideline F (financial considerations). Eligibility for a public trust position is granted.

Statement of the Case

On May 11, 2016, Applicant completed and signed a Questionnaire for National Security Positions (SF-86). On December 27, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, which became effective on September 1, 2006 (Sept. 1, 2006 AGs).

The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the interests of national security to grant or continue a public trust position for Applicant, and recommended referral to an administrative judge to determine whether a public trust position should be granted, continued, denied, or revoked. Specifically, the SOR set forth security concerns arising under the financial considerations guideline. On January 30, 2017, Applicant answered the SOR, and requested a decision without a hearing. (Item 1) On February 14, 2016, Department Counsel completed the File of Relevant Material (FORM). On February 27, 2016, Applicant received the FORM. She submitted information within the 30 days after receiving the FORM.1 On October 1, 2017, the case was assigned to me. The case file consists of eight exhibits that were received into evidence. (Items 1-8)

While this case was pending a decision, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The new AGs supersede the September 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s public trust position eligibility under the new AGs.2 My decision would have been the same under the prior AGs.

Findings of Fact3

The SOR alleged six debts under financial considerations. Applicant admitted SOR ¶¶ 1.a through 1.d, with explanation, and denied SOR ¶¶ 1.e and 1.fwith explanation. Her admissions are accepted as findings of fact. Additional findings of fact follow.

Applicant is a 50-year-old claims advocate employed by a defense contractor since 1996. She seeks a public trust position in conjunction with her current employment. Applicant graduated from high school in 1985, and attended two different colleges from 1993 to 1995. She has never married and has no dependents.

Financial Considerations

The SOR consists of six debts: 1.a – a student loan placed in collections in the amount of $21,071; 1.b - a student loan placed in collections in the amount of $12,397 (1.a and 1.bare from the same creditor); 1.c – a collection account in the amount of $368; 1.d – a medical collection account in the amount of $273; 1.e – a medical collection account in the amount of $35; and 1.f – a medical collection account in the amount of $35 (1.e and 1.fare from the same creditor). These allegations are established through the Government exhibits. (Items 2 - 8)

Department Counsel’s FORM focused on the lack of documentation in Applicant’s SOR answer in response to her claims that her debts had been paid or otherwise resolved, with the exception of SOR 1.d (medical collection account in the amount of $273). Applicant did provide documentation in her SOR answer that SOR 1.dhad been paid. SOR 1.D RESOLVED. (Item 2)

In her FORM response, Applicant addressed the shortcomings noted by Department Counsel. Per agreement with the creditor, she consolidated her two student loans and is making $50 monthly payments. Applicant provided documentation of recent payments. This is in contrast to the past when payments were made involuntarily through garnishment or diversion of tax refunds. SOR 1. A AND 1.B BEING RESOLVED. (Items 2 – 9)

Applicant stated the creditor in 1.c (collection account in the amount of $368) failed to correctly close out her account. She provided documentation that the account has been paid, settled for a lesser amount, and is closed. SOR 1.C RESOLVED. (Items 2, 9) Applicant stated the creditor in 1.e and 1.f (medical collection accounts, both in the amounts of $35) sent these accounts to collections in error. She provided creditor documentation requesting removal of these accounts from the credit reporting agencies. SOR 1.F AND 1.E RESOLVED. (Items 2, 9) . Applicant stated that despite “being out of work the majority of the past two years I have managed to keep my bills mostly on track.” She is proud of the customer service she has provided to military members and their families over the past 20 years. Applicant noted that she has “over hundred verbal and written kudos from individuals I have assisted over the years.” (Item 2) Her monthly budget reflects that she is living a modest lifestyle and living within her means. (Item 2)

POLICIES

The Under Secretary of Defense’s Memorandum of November 19, 2004, treats ADP positions as sensitive positions, and it entitles applicants for ADP positions to the procedural protections in the Directive before any final unfavorable access determination may be made. The standard set out in the adjudicative guidelines assignment to sensitive duties is that the person’s loyalty, reliability, and trustworthiness are such that assigning the person to sensitive duties is clearly consistent with the interests of national security.

A person who seeks access to sensitive 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. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard sensitive information.

When evaluating an applicant’s suitability for a public trust position, the administrative judge must consider the disqualifying and mitigating conditions in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. The administrative judge’s overarching adjudicative goal is a fair, impartial and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The protection of the national security is the paramount consideration. Under AG ¶ 2(b), “[a]ny doubt concerning personnel being considered for access to [sensitive] information will be resolved in favor of national security.” The Government must present substantial evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant has the ultimate burden of demonstrating that it is clearly consistent with national security to grant or continue eligibility for access to sensitive information.

ANALYSIS

Financial Considerations

AG ¶ 18 articulates the trustworthiness concern for financial problems:

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.

AG ¶ 19 provides three disqualifying conditions that could raise a trustworthiness concern and may be disqualifying in this case: “(a) inability to satisfy debts;” “(b) unwillingness to satisfy debts regardless of the ability to do so;” and “(c) a history of not meeting financial obligations.” Based on the information in the SOR, the record established the disqualifying conditions in AG ¶¶ 19(a), 19(b), and 19(c), requiring additional inquiry about the possible applicability of mitigating conditions.

AG ¶ 20 lists five potential mitigating conditions:

(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.

Application of AG ¶¶ 20(a) through (f) are applicable in whole or in part to the debts contained in SOR ¶¶ 1.a through 1.d. Applicant has paid, is paying, or otherwise resolved all of the debts alleged. Her being unemployed for two years no doubt impacted her ability to remain current on her debts. Having reviewed Applicant’s budget, it is apparent that she is doing her level best to remain financially afloat. Her long-term employment and dedication as a defense contractor are duly noted. In addition to evaluating the facts and applying the appropriate adjudicative factors under Guideline F, I have reviewed the record before me in the context of the whole-person factors listed in AG ¶ 2(a).

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 APPLICANT

Subparagraphs 1.a – 1.f: For Applicant

CONCLUSION

I conclude that is clearly consistent with national security to grant Applicant eligibility for a public trust position. Eligibility for a public trust position is granted.

_________________________ ROBERT TUIDER Administrative Judge

FOOTNOTES

1 Applicant’s FORM response was marked as Item 9, and was received into evidence. 2 The new AGs are available at http://ogc.osd.mil/doha/SEAD4 20170608.pdf. 3 Some details were excluded to protect Applicant’s right to privacy. Specific information is available in the cited exhibits.