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ISCR 16-04068.h1: Guideline E security clearance hearing, granted (2017) · CASE

ISCR Case 16-04068.h1granted

Case headnote

ISCR Case No. 16-04068.h1

grantedSep 15, 2017· Hon. Robert J. Kilmartin· hearing

Summary

A 41-year-old former U.S. Navy service member was granted a security clearance after review under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant admitted to nine delinquent debts, totaling approximately $15,000, which were not fully disclosed on his security clearance application (SCA). These issues raised disqualifying conditions under AG ¶ 19(a), AG ¶ 19(b), and AG ¶ 19(c).

The applicant demonstrated significant mitigating factors. He provided evidence of active efforts to resolve his delinquent debts, including submitting settlement proposals and making payments. His financial difficulties were largely attributed to circumstances beyond his control, specifically a divorce and the responsibilities of single parenthood.

Ultimately, the judge determined that the applicant's failure to disclose the debts was an oversight rather than an intentional deception. Given the applicant's proactive steps to address his financial obligations and the external factors contributing to his situation, mitigating conditions AG ¶ 20(b), AG ¶ 20(d), and AG ¶ 20(e) were applied, and the security clearance was granted.

Why the applicant prevailed

The applicant provided evidence of efforts to resolve delinquent debts, including settlement proposals and payments made.
The applicant's financial issues were largely due to circumstances beyond his control, such as a divorce and single parenthood.
The applicant's failure to disclose debts was determined to be an oversight rather than intentional deception.

Conditions referenced

Disqualifying

AG ¶ 19(a)raisedInability to Satisfy Debts
AG ¶ 19(b)raisedUnwillingness to Satisfy Debts
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 Legitimacy of Past-due Debt

Key rule quoted

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

Procedural posture

SOR issuedFeb 21, 2017
Answer filedMar 8, 2017
Hearing heldJun 21, 2017
Decision dateJul 11, 2017Record left open until this date for additional documentation.

Cite for

Mitigation of Financial Issues Under Guideline F Due to Personal Circumstances
Consideration of Oversight in Personal Conduct Under Guideline E
Whole-person Analysis in Security Clearance Determinations

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.

Age at decision: 41: “Applicant is 41 years old.”
Tenure: ~3 years: “Applicant has been pending a job as an engineer technician with a federal contractor, contingent on obtaining a security clearance, since September 2014.”
Held a clearance before: Yes: “Applicant had a previous security clearance while he was in the Navy.”
Delinquent debt cited: $15,000 (on a payment plan): “The alleged delinquent debts in SOR ¶¶ 1.a through 1.i. total approximately $15,000.”

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the personal conduct concerns under Guideline E. The applicant's failure to disclose delinquent debts on his security clearance application was determined to be an oversight rather than a deliberate act of falsification, leading to a favorable decision for the applicant.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

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 mitigated the financial concerns under Guideline F, determining that the applicant's financial problems were under control and that the debts were incurred under circumstances unlikely to recur. The applicant's eligibility for access to classified information was granted, with all allegations under Guideline F ruled in favor of the applicant.

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. 16-04068 ) Applicant for Security Clearance )

For Government: Carroll Connelley, Esq., Department Counsel For Applicant: Pro se 09/15/2017 ______________

STATEMENT OF CASE

______________

KILMARTIN, Robert J., Administrative Judge:

Applicant has mitigated the security concerns under Guideline E, personal conduct, and Guideline F, financial considerations. Applicant’s eligibility for access to classified information is granted.

Statement of the Case

Applicant submitted a security clearance application (SCA) on October 25, 2015. On February 21, 2017, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline F, financial considerations and Guideline E, personal conduct. The DOD CAF acted under Executive Order (EO) 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 (AGs) implemented by DOD on September 1, 2006. On December 10, 2016, the Director of National Intelligence signed Security Executive Agent Directive 4 (SEAD 4), implementing new AGs effective within the DOD on June 8, 2017. Accordingly, I have applied the June 8, 2017 AGs in this decision.1

Applicant answered the SOR on March 8, 2017, admitting all of the SOR allegations in a three-page statement with amplifying explanations. Attached were seven letters to the creditors proposing compromise settlement offers or asking for validation of the alleged delinquent debts. Applicant sent these settlement proposals to each creditor by certified mail. Also attached was a power point slide entitled “Debt Resolution Strategy” in which Applicant established a time-line for action to resolve the alleged delinquent debts. He accomplished most of his stated objectives. The alleged delinquent debts in SOR ¶¶ 1.a through 1.i. total approximately $15,000. Applicant also requested a hearing before an administrative judge. The case was assigned to me on May 2, 2017. On May 19, 2017, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for June 21, 2017. I convened the hearing as scheduled.

Government Exhibits (GE) 1 through 5 were admitted into evidence without objection. At the hearing, Applicant testified and submitted documents, which were marked as Applicant’s Exhibits (AE) A through G and admitted without objection. DOHA received the transcript (Tr.) on June 29, 2017. I granted Applicant’s request to leave the record open until July 11, 2017, so that he could provide substantiating documentation.2 He provided one additional document, which was a $350 cashier’s check dated July 7, 2017, to the collection agency for the creditor in SOR ¶ 1.destablishing payment in full.

Findings of Fact3

Applicant is 41 years old. He graduated from high school in 1994, and took some colleges courses, but did not obtain a degree. Applicant has been pending a job as an engineer technician with a federal contractor, contingent on obtaining a security clearance, since September 2014. Applicant was married in 1998 and divorced in 2007. He has one son, age 19 from that marriage. Applicant re-married in 2008 and he has another son, age 18 months. Applicant served on active duty in the U.S. Navy from 1996 to 2016 and received an honorable discharge and numerous awards. Applicant had a previous security clearance while he was in the Navy. He did not disclose any delinquent debts in section 26 of his October 2015 SCA. Applicant testified that near the end of his career in the Navy, he was presented with the 2015 SCA late in the afternoon and told by his superior that it had to be completed by the morning. At that point, it was nebulous whether or not he actually needed to complete it because Applicant was not sailing on the next deployment with his unit. Thus, his SCA was rushed and hastily completed. His failure to disclose the delinquent debts was a clerical error or oversight and he had no specific intent to deceive the government when he completed it.4

The SOR alleged nine delinquent debts totaling approximately $15,167. Applicant admitted to these delinquent or charged-off debts in his Answer to the SOR. At the hearing, Applicant testified that he has maintained a security clearance for over 20 years with no issues. The largest delinquent debt alleged at SOR ¶ 1.h, was placed for collection in the amount of $10,662 for a repossessed Toyota in 2004. Applicant testified that he was in the throes of a separation from his first wife, and he wound up with sole custody of his son. He was overwhelmed and could not keep up with the car payments. The car was repossessed approximately a week and a half before a scheduled six month deployment at sea.5 Applicant does not know how much money the car was resold for by the creditor. He has reached out to the creditor and is attempting to track this information down.

Applicant disputes the delinquent medical debt alleged at SOR ¶ 1.i. This was for an unnecessary ambulance ride when his young son received a minor injury at school, and the school officials procured an ambulance for $693 without first contacting Applicant or his wife. Applicant was five minutes away. He is actively disputing this debt.6

Applicant submitted documentary evidence at AE A through AE G corroborating his testimony that he has either attempted to settle, or has paid in full, the delinquent debts alleged in SOR ¶¶ 1.a – 1.g.7 The debts alleged at SOR ¶¶ 1.b, 1.d, 1.e and 1.fhave been resolved. The other delinquent debts alleged are being disputed (¶¶ 1.cand 1.i) or Applicant is actively pursuing settlement efforts.

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, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are 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, these guidelines are applied 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, Appendix A, ¶ 2(a), the adjudicative process is an examination of a sufficient period and a careful weighing of a number of variables of an individual’s life to make an affirmative determination that the individual is an acceptable security risk. This is 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, Appendix A, ¶ 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. 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, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and 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. Decisions include, by necessity, consideration of the possible risk that an applicant may deliberately or inadvertently fail to 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 EO 10865 provides that 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.”

ANALYSIS

Guideline F, Financial Considerations

The security concern relating to 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 abuse, 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 . . . .

This concern is broader than the possibility that an individual might knowingly compromise classified information in order to raise money. It encompasses concerns about an individual’s self-control, judgment, and other qualities essential to protecting classified information. An individual who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding classified information.

AG ¶ 19 provides conditions that could raise security concerns. The following apply here:

(a) inability to satisfy debts;

(b) unwillingness to satisfy debts regardless of the ability to do so; and

Applicant’s delinquent debts alleged in the SOR are confirmed by his credit reports, clearance interview and answer to the SOR. The Government produced substantial evidence to support the disqualifying conditions in AG ¶¶ 19(a), 19(b), and 19(c), thereby shifting the burden to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the facts.8 Applicant has met that burden.

The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. The following mitigating conditions under AG ¶ 20 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 . . ., 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 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;

(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; and

Applicant was separated in 2004 and divorced in 2007. He was assigned sole custody of his young son, while trying to maintain his active duty navy career as a submariner. To some extent, these conditions were beyond his control. He has now produced relevant and responsive documentation, demonstrating that he acted responsibly under the circumstances. Applicant has met his burden to provide sufficient evidence to show that his financial problems are under control, and that his debts were incurred under circumstances making them unlikely to recur. The delinquent debts have been resolved or are being resolved. The mitigating conditions enumerated above apply with the exception of AG ¶ 20(c).

Guideline E, Personal Conduct

The security concern for personal conduct is set out in AG ¶ 15, as follows:

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. The following disqualifying conditions are potentially applicable:

(a) deliberate omission, concealment or falsification of relevant facts from any personnel security questionnaire, personal history statement or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; and

(b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative.

Since Applicant denied any intent to provide false information as alleged at SOR ¶ 2.a, his intent is an issue. Under ¶ E3.1.14 of DOD Directive 5220.6, the Government is responsible for presenting witnesses and evidence on facts alleged in the SOR that have been controverted. Intent can be inferred or determined from the circumstances. Applicant felt rushed when he completed his SCA online and the failure to disclose his delinquent debts was an oversight vice a deliberate falsification.

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, Appendix A, ¶ 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, Appendix A, ¶ 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 E and F in my whole-person analysis. Some of the factors in AG, Appendix A, ¶ 2(d) were addressed under those guidelines. Most importantly, Applicant has addressed the specific allegations in the SOR and taken affirmative measures to resolve them. He has met his burden of production.

Applicant’s finances no longer remain a security concern. There is sufficient evidence to conclude that Applicant’s financial problems are under control. The record evidence leaves me with no questions or doubts as to Applicant’s suitability for a security clearance. For all these reasons, I conclude Applicant has mitigated the security concerns arising under Guideline F, financial considerations, and that the disqualifying conditions for Guideline E, personal conduct, were not established.

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 through 1.i: For Applicant

Paragraph 2, Guideline E: For Applicant

Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the interests of national security to grant Applicant a security clearance. Eligibility for access to classified information is granted.

________________________ Robert J. Kilmartin Administrative Judge

FOOTNOTES

1 Although I have decided this case under the adjudicative guidelines (AG) effective June 8, 2017, I also considered the case under the former AG effective on September 1, 2006, and my decision would be the same under either version. 2 Tr. at 36. 3 Unless stated otherwise, the source of the information in this section is Applicant’s October 25, 2015 Security Clearance Application (SCA) and the summary of his security clearance interview on March 30, 2016. 4 Tr. at 56. 5 Tr. at 62, 63. 6 Tr. at 63-65. 7 Tr. at 24-40. 8 Directive ¶ E3.1.15. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep 22, 2005) (An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government).