CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-03644.h1 — CASE

ISCR Case 16-03644.h1granted

Case Headnote

ISCR Case No. 16-03644.h1

grantedSep 13, 2017· Hon. Mark W. Harvey· hearing

Summary

A 45-year-old technician mechanic, employed by a Department of Defense contractor, was granted a security clearance despite initial concerns under Guideline F (Financial Considerations). The Statement of Reasons (SOR) detailed four specific delinquent debts: a mortgage past due by $17,564 with a total balance of $329,759, a charged-off credit card debt of $15,518, a telecommunications debt of $1,254, and a bank debt of $18,436. These issues raised disqualifying conditions under Adjudicative Guidelines (AG) ¶ 19(a), (b), and (c).

However, the applicant successfully mitigated these concerns. He paid three of the four delinquent debts in full and established a payment plan for the remaining mortgage debt, bringing it to current status. This demonstrated a good faith effort to resolve his financial issues, aligning with mitigating conditions AG ¶ 20(a), (b), and (d).

Based on the applicant's proactive steps to address his financial obligations and his current financial stability, the judge granted the security clearance.

Why the Applicant Prevailed

Applicant paid three of the four delinquent debts listed in the SOR.
He established a payment plan for the remaining mortgage debt, bringing it to current status.
The applicant demonstrated a good faith effort to resolve his financial issues.

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)raisedA History of Not Meeting Financial Obligations

Mitigating

AG ¶ 20(a)appliedThe Behavior Happened so Long Ago, Was so Infrequent, or Occurred Under Such Circumstances That It Is Unlikely to Recur
AG ¶ 20(b)appliedConditions That Resulted in the Financial Problem Were Largely Beyond the Person’s Control
AG ¶ 20(d)appliedThe Individual Initiated and Is Adhering to a Good-faith Effort to Repay Overdue Creditors

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedJan 12, 2017
Answer filedFeb 11, 2017
Hearing heldJun 14, 2017
Decision dateSep 13, 2017

Cite For

Resolution of Financial Issues Under Guideline F
Good Faith Efforts to Repay Debts
Mitigation of Financial Considerations Security Concerns

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 resolved his financial issues, having paid three of the four debts listed in the Statement of Reasons (SOR). The applicant's mortgage was brought to current status through a loan modification, and he was granted eligibility for access to classified information.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	SOR ¶ 1.a alleges a mortgage past due in the amount of $17,564 with a total loan balance of $329,759. $17,564	For Applicant	Mortgage or Home 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	Documented Debt Paid in Full
1.b	SOR ¶ 1.b alleges a charged-off credit card debt owed to a credit union for $15,518. $15,518	For Applicant	Credit Card 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.c	SOR ¶ 1.c alleges a telecommunications debt placed for collection for $1,254. $1,254	For Applicant	Utility or Phone Debt	Denied	(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.d	SOR ¶ 1.d alleges a bank debt placed for collection for $18,436. $18,436	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	Documented Debt Paid in Full

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: ) ) ) ISCR Case No. 16-03644 ) ) Applicant for Security Clearance

For Government: Andrew H. Henderson, Esq., Department Counsel For Applicant: Pro se

09/13/2017 ___________

STATEMENT OF CASE

___________

HARVEY, Mark, Administrative Judge:

Applicant provided sufficient evidence of resolution of his financial issues. His SOR lists four delinquent debts. He paid three SOR debts, and he received a mortgage modification to bring the other SOR debt to current status. Financial considerations security concerns are mitigated. Eligibility for access to classified information is granted.

Statement of the Case

On February 11, 2016, Applicant completed and signed his Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). (Government Exhibit (GE) 2) On January 12, 2017, 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, 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 security clearance for him, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. Specifically, the SOR set forth security concerns arising under the financial considerations guideline. On February 11, 2017, Applicant responded to the SOR. (HE 3) On April 24, 2017, Department Counsel was ready to proceed. On April 25, 2017, the case was assigned to me. On May 9, 2017, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for June 14, 2017. (HE 1) Applicant’s hearing was held as scheduled.

During the hearing, Department Counsel offered eight exhibits; Applicant offered six exhibits; there were no objections; and all proffered exhibits were admitted into evidence. (Tr. 14-17; GE 1-8; Applicant Exhibit (AE A-AE F)) On June 22, 2017, DOHA received a copy of the hearing transcript. The record was held open initially until July 13, 2017. (Tr. 55) Applicant received a 30-day extension. (HE 4) Applicant submitted 10 documents on August 11, 2017, and his exhibits were admitted into evidence without objection. (AE G-AE P)

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 Sept. 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s security clearance eligibility under the new AGs.1

Findings of Fact2

In Applicant’s SOR response, he admitted that at one time he owed the creditors listed in SOR ¶¶ 1.a through 1.d. He also provided extenuating and mitigating information. Applicant’s admissions are accepted as findings of fact. Additional findings of fact follow.

Applicant is a 45-year-old technician mechanic who has been employed by a DOD contractor for the past eight years. (Tr. 6-8; GE 1) His only unemployment in the previous 10 years was for 3 months in early 2009. (Tr. 8, 20; GE 1) In 1990, he graduated from high school, and in 1993, he received an associate’s degree in electronics. (Tr. 6-7) He has not served in the military. (Tr. 7) He has never married, and he does not have any children. (Tr. 7) There is no evidence of illegal drug use, alcohol abuse, or security violations.

Financial Considerations

From 1993 to January 2009, the same employer employed Applicant, and his annual salary in January 2009 was $80,000. (Tr. 18, 20) He lost his employment and was unemployed for three months. (Tr. 18) In March 2009, his current employer hired him at an annual salary of $50,000. (Tr. 18) In 2001, Applicant was diagnosed with cancer. (Tr. 18, 20) From 2001 to 2013, he suffered from aspergillus, a debilitating disease of the immune system, which is a side effect from chemotherapy and radiation therapy. Aspergillus caused him to have reduced energy, lung inflammation, and coughing. (Tr. 21-22) Sometimes he missed work due to his illness, which reduced his income. (GE 3; GE 4) After 2013, he was able to earn additional income through overtime once his aspergillus was under control. (Tr. 22) His relationship with his girlfriend ended; however, he did not explain how this affected his finances. (Tr. 18) His net monthly pay after taxes are deducted is about $3,700. (Tr. 40) He does not use a formal budget. (Tr. 42) He has about $58,000 in his 401(k) account. (Tr. 44) He is repaying a loan from his 401(k) account. (Tr. 44) He indicated he wanted to repay his 401(k) loan first, and then he wanted to borrow more funds from his 401(k) account to pay his debts.

Applicant is making monthly payments of $110 on a tax debt of $5,411 for tax year 2012 in accordance with an IRS payment plan. (Tr. 45; AE O) His taxes were delinquent for several years, and he has resolved his tax debt for all years except tax year 2012. (Tr. 45) He paid off a federal tax lien filed in 2011. (Tr. 54-55; GE 2) He owes state taxes of about $200. (Tr. 46)3 There is no evidence he failed to timely file his tax returns. In 2012, Applicant’s security clearance was denied because of his finances. (Tr. 47)

Applicant’s SOR alleges four delinquent debts, and their status is as follows:

SOR ¶ 1.a alleges a mortgage past due in the amount of $17,564 with a total loan balance of $329,759. In 2005, Applicant financed the purchase of his residence. (Tr. 24) In 2009, his annual pay was reduced $30,000, and he fell behind on his mortgage payments. (Tr. 24-25) He received a loan modification from his mortgage company. (Tr. 26) He was still having problems making his mortgage payments. He began his second loan modification process, and before it was complete, his mortgage company sold his loan to a different mortgage company (F). (Tr. 25) F told Applicant his monthly mortgage

3 Applicant’s SOR does not include information about his delinquent state or federal taxes. In ISCR payment was being increased from $2,000 to $2,600; however, Applicant advised F that the increased mortgage was unaffordable. (Tr. 27-28) He did not make his mortgage payments for about 15 months. (Tr. 44) He was able to save about $5,000 from not paying his mortgage. (Tr. 44) In January 2017, Applicant received the SOR and learned his home was in foreclosure status. (Tr. 27) He resumed the loan modification process with F. (Tr. 25-26) On March 9, 2017, a state mortgage modification company (MMC) wrote Applicant and proposed a new monthly mortgage payment of $1,784 starting in August 2017, which is a reduction from his currently monthly payment of $1,804. (Tr. 29-30; AE C) The mortgage principal is $214,475; the deferred balance is $103,570; the interest rate is 4.125%. (AE C) MMC made a payment of $36,558 to F to bring his mortgage current. (AE C) On March 15, 2017, Applicant signed a promissory note for $34,194 to bring his mortgage current. (AE D; AE L) If Applicant makes his payments for 10 years, 20 percent of the $34,194 original balance on the promissory note is forgiven, and after each additional five years is completed, an additional 20 percent of the $34,194 original balance on the promissory note is forgiven. (Tr. 30; AE L) Thus, if all payments are made for 30 years, the entire $34,194 will be forgiven. (AE L) Applicant is required to occupy his home to receive the loan forgiveness. (AE L) He said he made three mortgage payments after signing the promissory note. (Tr. 30-31)

SOR ¶ 1.balleges a charged-off credit card debt owed to a credit union for $15,518. (Tr. 33) Applicant admitted he owed the debt, and he has been negotiating with the creditor to settle the debt. (Tr. 34-35) Applicant said the creditor offered to settle the debt for $3,000 to $5,000; however, he did not have the funds to settle the debt. (Tr. 34- 35) On July 25, 2017, Applicant settled the debt for $7,050. (AE H; AE I) On August 11, 2017, the creditor wrote Applicant that the debt was settled, and no further collection activity will occur. (AE K)

SOR ¶ 1.calleges a telecommunications debt placed for collection for $1,254. On February 3, 2017, the creditor wrote the debt owed is $1,254; however, the creditor is willing to negotiate a settlement for a substantially reduced amount. (AE F) Applicant said he returned the creditor’s equipment and stopped the service. (Tr. 35) He denied that he owed this debt. (Tr. 35) On August 8, 2017, Applicant paid the collection agent $627, and the collection agent wrote the debt has a zero balance. (AE J)

SOR ¶ 1.dalleges a bank debt placed for collection for $18,436. Around 2008 or 2009, Applicant borrowed $7,800 to pay for home improvements. (Tr. 37) He paid the balance down to $5,000, and then stopped making payments in 2009. (Tr. 37-39) On April 13, 2017, the collection company wrote Applicant offering to settle the debt for a one-time payment of $5,531. (Tr. 38-39; AE E) Applicant wrote a note with a confirmation number indicating the debt was settled. (AE N) On July 28, 2017, the collection agent wrote that that $5,531 was being electronically deducted from Applicant’s account. (AE P)

In sum, Applicant’s April 24, 2017 credit report lists 16 accounts, including the debts in SOR ¶¶ 1.a and 1.b. (GE 8) None of the other accounts on this credit report show a delinquent balance. Most accounts show “paid and closed” in the comments. (GE 8) Including his three mortgage payments, he paid about $20,000 to address his SOR debts in 2017. Three SOR debts are paid, and his other SOR debt is in a payment plan.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. 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. An 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 Government reposes a high degree of trust and confidence in persons with access to classified information. 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 classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, nothing in this decision should be construed to suggest that it is based, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

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 ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Financial Considerations

AG ¶ 18 articulates the security 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. . . . An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. . . .

The Appeal Board explained the scope and rationale for the financial considerations security concern in ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012) (citation omitted) as follows:

This concern is broader than the possibility that an applicant might knowingly compromise classified information in order to raise money in satisfaction of his or her debts. Rather, it requires a Judge to examine the totality of an applicant’s financial history and circumstances. The Judge must consider pertinent evidence regarding the applicant’s self-control, judgment, and other qualities essential to protecting the national secrets as well as the vulnerabilities inherent in the circumstances. The Directive presumes a nexus between proven conduct under any of the Guidelines and an applicant’s security eligibility.

AG ¶ 19 includes three disqualifying conditions that could raise a security 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.” In ISCR Case No. 08-12184 at 7 (App. Bd. Jan. 7, 2010), the Appeal Board explained:

It is well-settled that adverse information from a credit report can normally meet the substantial evidence standard and the government’s obligations under [Directive] ¶ E3.1.14 for pertinent allegations. At that point, the burden shifts to applicant to establish either that [he or] she is not responsible for the debt or that matters in mitigation apply.

(internal citation omitted). Applicant’s history of delinquent debt is documented in his credit reports, SOR response, and hearing record. The record establishes the disqualifying conditions in AG ¶¶ 19(a), 19(b), and 19(c), requiring additional inquiry about the possible applicability of mitigating conditions.

Five financial considerations mitigating conditions under AG ¶ 20 are potentially applicable in this case:

(a) the behavior happened so long ago,4 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;5 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. The DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

Applicant’s finances were adversely affected by underemployment (reduction in his annual salary from $80,000 to $50,000), and cancer with its side-effect aspergillus. Applicant’s SOR alleges four delinquent debts. He paid three SOR debts, and his mortgage is in a current payment plan. There is no evidence of financial counseling. AG ¶ 20(a), 20(b), and 20(d) apply.

Based on Applicant’s track record of paying or resolving his debts, future new delinquent debt “is unlikely to recur and does not cast doubt on [Applicant’s] current reliability, trustworthiness, or good judgment,” and “there are clear indications that the problem is being resolved or is under control.” His payments of his debts showed good faith. He has sufficient income to keep his debts in current status and to continue making progress paying his remaining debts. I am confident that Applicant will conscientiously endeavor to maintain his financial responsibility. His efforts are sufficient to mitigate financial considerations security concerns.

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 ¶ 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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guideline F are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline but some warrant additional comment.

Applicant is a 45-year-old technician mechanic who has been employed by a DOD contractor for the past eight years. In 1993, he received an associate’s degree in electronics. In 2009, his finances were harmed when he changed employment, and his annual salary was reduced from $80,000 to $50,000. He suffered from cancer and aspergillus, which resulted in a reduction in his ability to work and less income. There is no evidence of illegal drug use, alcohol abuse, or security violations.

Applicant’s SOR alleges four delinquent debts. He paid three SOR debts, and he received a mortgage modification for the other SOR debt. All of his debts, including his federal and state income tax debts are in current payment plans. His April 24, 2017 credit report has 2 negative entries for SOR ¶¶ 1.a and 1.b, and the other 14 entries have a zero delinquent balance. Most credit report entries indicate “paid and closed.” The Appeal Board has addressed a key element in the whole-person analysis in financial cases stating:

. . . the concept of meaningful track record necessarily includes evidence of actual debt reduction through payment of debts. However, an applicant is not required, as a matter of law, to establish that he has paid off each and every debt listed in the SOR. All that is required is that an applicant demonstrate that he has . . . established a plan to resolve his financial problems and taken significant actions to implement that plan. The Judge can reasonably consider the entirety of an applicant’s financial situation and his actions in evaluating the extent to which that applicant’s plan for the reduction of his outstanding indebtedness is credible and realistic. See Directive ¶ E2.2(a) (Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.) There is no requirement that a plan provide for payments on all outstanding debts simultaneously. Rather, a reasonable plan (and concomitant conduct) may provide for the payment of such debts one at a time. Likewise, there is no requirement that the first debts actually paid in furtherance of a reasonable debt plan be the ones listed in the SOR.

ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008) (internal citations and quotation marks omitted). He understands what he needs to do to establish and maintain his financial responsibility. He took reasonable actions under his particular financial circumstances to address his delinquent debts. Applicant has established a “meaningful track record” of debt re-payment, and I am confident he will maintain his financial responsibility.6 I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude that financial considerations security concerns are mitigated. It is clearly consistent with the interests of national security to grant Applicant security clearance eligibility.

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.d: For Applicant

CONCLUSION

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

_________________________ MARK HARVEY Administrative Judge

FOOTNOTES

1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/5220-6 R20170608.pdf.

2 Some details were excluded to protect Applicant’s right to privacy. Specific information is available in the cited exhibits. Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006), the Appeal Board listed five circumstances in which conduct not alleged in an SOR may be considered stating:

(a) to assess an applicant’s credibility; (b) to evaluate an applicant’s evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) to provide evidence for whole person analysis under Directive Section 6.3.

Id. (citing ISCR Case No. 02-07218 at 3 (App. Bd. Mar. 15, 2004); ISCR Case No. 00-0633 at 3 (App. Bd. Oct. 24, 2003)). See also ISCR Case No. 12-09719 at 3 (App. Bd. April 6, 2016) (citing ISCR Case No. 14- 00151 at 3, n. 1 (App. Bd. Sept. 12, 2014); ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006)). The allegations of delinquent taxes will not be considered except for the five purposes listed above. In this instance, his 2012 tax debt has limited relevance because he has a payment plan with the IRS. See AG ¶ 20(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.”). If his tax debt was listed on his SOR as a security concern, I am confident he would have withdrawn sufficient funds from his 401(k) account to pay his tax debt. 4 A debt that became delinquent several years ago is still considered recent because “an applicant’s ongoing, unpaid debts evidence a continuing course of conduct and, therefore, can be viewed as recent for purposes of the Guideline F mitigating conditions.” ISCR Case No. 15-06532 at 3 (App. Bd. February 16, 2017) (citing ISCR Case No. 15-01690 at 2 (App. Bd. Sep. 13, 2016)).

5 The Appeal Board has previously explained what constitutes a “good faith” effort to repay overdue creditors or otherwise resolve debts:

In order to qualify for application of [the “good faith” mitigating condition], an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term “good-faith.” However, the Board has indicated that the concept of good- faith “requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.” Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy) in order to claim the benefit of [the “good faith” mitigating condition].

(internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). 6 Failure to comply with his IRS payment plan, additional delinquent taxes, or other delinquent debt will raise a security concern. The Government has the option of following-up with more questions about Applicant’s finances. The Government can re-validate Applicant’s financial status at any time through credit reports, investigation, and interrogatories. Approval of a clearance now does not bar the Government from subsequently revoking it, if warranted. “The Government has the right to reconsider the security significance of past conduct or circumstances in light of more recent conduct having negative security significance.” ISCR Case No. 10-06943 at 4 (App. Bd. Feb. 17, 2012). An administrative judge does not have “authority to grant an interim, conditional, or probationary clearance.” ISCR Case No. 10-06943 at 4 (App. Bd. Feb. 17, 2012) (citing ISCR Case No. 10-03646 at 2 (App. Bd. Dec. 28, 2011)). See also ISCR Case No. 04- 03907 at 2 (App. Bd. Sep. 18, 2006) (stating, “The Board has no authority to grant [a]pplicant a conditional or probationary security clearance to allow her the opportunity to have a security clearance while she works on her financial problems.”). This footnote does not imply that this decision to grant Applicant’s security clearance is conditional.