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ISCR 16-02850.h1: Guideline F security clearance hearing, denied, remanded on appeal (2017) · CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date11/28/2017
StatusdeniedRemanded on appeal
LevelHEARING
TypeSTANDARD ISCR
Remanded on appeal
The DOHA Appeal Board set this decision aside and sent the case back for further consideration, so the outcome shown here is not final. The Appeal Board decided on 3/14/2018.
Read the appeal decision →
Related decisionsSee the hearing decision (Case 16-02850.h2) →See the appeal decision (Case 16-02850.a1) →
From the decisionFacts this decision states. Hover a value to see the exact sentence.
Age at decision33
Tenure~2 years
Held a clearance beforeYes
Delinquent debt cited$10,806 (on a payment plan)
Participants
Judge: Braden M. Murphy
Applicant Representation: Pro Se
Guidelines Evaluated
- FFinancial Considerations · Against Applicant
Other decisions whose allegations most closely resemble this one’s. Similarity of the allegations only.
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ISCR Case 16-02850.h1deniedRemanded on appeal

Case headnote

ISCR Case No. 16-02850.h1

deniedRemanded on appealNov 28, 2017· Hon. Braden M. Murphy· hearing

Summary

A 33-year-old male applicant, employed in the defense industry with prior military service, was denied a security clearance under Guideline F (Financial Considerations) due to multiple delinquent debts. The Statement of Reasons detailed three specific financial concerns.

These included an outstanding collection amount of $10,806 for a repossessed automobile, a mortgage that was in foreclosure as of January 2016 with $13,165 past due on a $214,514 loan balance, and a $37 collection account owed to a credit union. These issues raised disqualifying conditions under Adjudicative Guideline paragraphs 19(a) and 19(c).

The denial was based on the applicant's failure to provide sufficient documented evidence to mitigate these financial concerns. Despite multiple opportunities, he did not submit documentation demonstrating that his debts were being resolved or were under control, leading to the denial of his security clearance application.

Why the applicant was denied

Applicant did not provide sufficient documented evidence to mitigate financial concerns.
He failed to establish that his debts were being resolved or were under control.
Despite multiple opportunities, he did not submit documentation regarding his financial status.

Conditions referenced

Disqualifying

AG ¶ 19(a)raisedInability to Satisfy Debts
AG ¶ 19(c)raisedA History of Not Meeting Financial Obligations

Key rule quoted

“"the clearly consistent standard indicates that security determinations should err, if they must, on the side of denials."”
484 U.S. at 531.

Procedural posture

SOR issuedOct 20, 2016
Answer filedJan 4, 2017Applicant elected to proceed without a hearing.
Hearing held—Case decided on the written record.
Decision dateNov 28, 2017

Cite for

Insufficient Documentation to Mitigate Financial Concerns Under Guideline F
Failure to Establish Good-faith Efforts to Resolve Debts
Importance of Providing Evidence in Security Clearance Cases

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: 33: “Applicant is 33 years old.”
Tenure: ~2 years: “He has worked for his current employer since November 2015.”
Held a clearance before: Yes: “He has held a security clearance since 2004.”
Delinquent debt cited: $10,806 (on a payment plan): “SOR ¶ 1.a ($10,806) is the amount due in collection for an automobile that was repossessed.”

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all financial allegations under Guideline F, citing insufficient evidence to mitigate the security concerns related to his delinquent debts. The applicant admitted to one debt but denied the others, failing to provide documentation to support his claims of resolution or current financial stability.

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. 16-02850 ) Applicant for Security Clearance )

For Government: Robert J. Kilmartin, Esq., Department Counsel For Applicant: Pro se

11/28/2017 ______________

STATEMENT OF CASE

______________

MURPHY, Braden M., Administrative Judge:

Applicant did not provide sufficient documented evidence to mitigate the security concerns under Guideline F, financial considerations. Applicant’s eligibility for access to classified information is denied.

Statement of the Case

On October 20, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline F, financial considerations. The action was taken under Executive Order (Exec. Or.) 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 effective within the DOD for SORs issued after September 1, 2006.

Applicant answered the SOR on January 4, 2017, and elected to have his case decided on the written record in lieu of a hearing. On January 12, 2017, Department Counsel submitted the Government’s file of relevant material (FORM), including documents identified as Items 1 through 4. Applicant received the FORM on January 25, 2017. He was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant did not respond to the FORM, and did not object to the Government’s evidence. The SOR and the answer (combined as Item 1) are the pleadings in the case. Items 2 through 5 are admitted into evidence without objection.

The case was assigned to me on October 1, 2017. On October 5, 2017, I e-mailed the parties and re-opened the record to afford Applicant the opportunity to submit additional information and documentation. Applicant responded the same day, and again on October 18, 2017. He submitted two narrative updates and two reference letters, which were marked as Applicant’s Exhibits (AE) A through D, and admitted without objection. On October 19, 2017, having reviewed Applicant’s submissions, I reopened the record until October 30, 2017 to allow Applicant additional opportunity to submit relevant financial documentation. Applicant indicated that he intended to respond, but did not do so. (HE I- III). The record closed on October 30, 2017.

On December 10, 2016, the Director of National Intelligence issued new National Security Adjudicative Guidelines (AG). The new AGs are effective June 8, 2017 for all decisions after that date, and they supersede the AGs that Applicant received with the SOR.1 Any changes resulting from the implementation of the new AGs did not affect my decision in this case.

FINDINGS OF FACT

Applicant admitted SOR ¶ 1.a and denied SOR ¶¶ 1.band 1.c. I have incorporated his admission and subsequent explanations into the findings of fact. After a thorough and careful review of the pleadings and exhibits, I make the following findings of fact.

Applicant is 33 years old. After graduating from high school in 2003, Applicant served honorably in the United States Air Force from December 2003 to November 2014. Since then, he has been employed in the defense industry. He has held a security clearance since 2004. He has worked for his current employer since November 2015. He has never married and has no children, but has a fiancée. Applicant has also been attending college full-time. (Items 2, 3; AE A, AE B)

Applicant submitted a security clearance application (SCA) in December 2015, in connection with his employment. His background investigation included a January 2016 credit report and a February 2016 background interview. (Items 2, 3, 4). Applicant’s background investigation revealed several delinquent debts, three of which were alleged in the SOR. The largest debt is SOR ¶ 1.b, Applicant’s mortgage. Applicant purchased a home in May 2014, in his final months in the Air Force. He financed the purchase with a Veterans’ Administration (VA) loan. As of January 2016, the mortgage was in foreclosure, with $13,165 past due and a total loan balance of $214,514. (Items 1, 3, 4)

SOR ¶ 1.a ($10,806) is the amount due in collection for an automobile that was repossessed. SOR ¶ 1.c ($37) is a small account in collection to a credit union. The accounts are all shown as past due on Applicant’s January 2016 credit report. (Item 4).

Applicant did not disclose any delinquent debts on his SCA, though he discussed them in his February 2016 background interview. (Items 2, 3) He explained that he fell behind on these debts after leaving the Air Force following a down-sizing. As a result, his monthly income decreased by about $400. (Item 3 at 4)

In his answer to the SOR, Applicant admitted the repossession, but denied the other two debts. He provided no explanations and no documentation of their current status. He provided updated information when I reopened the record, in October 2017. He explained that he earned $15,000 less in annual income in the defense industry than he had earned in the Air Force. This led him to fall behind on his mortgage, and his car was repossessed. He stated that he was advised by friends that he could “rebuild” from the repossession but losing his home would be a “detrimental blow.” He explained that he and his fiancée successfully renegotiated their mortgage (¶ 1.b) at a better rate, and are now current. He believed the small $37 debt (¶ 1.c) was leftover interest from an old loan that was repaid years ago. (AE A, AE B)

Applicant did not, however, provide any documentation to support his assertions. This, despite having been given additional opportunity to do so. (HE III) He submitted no documentation to establish that his mortgage was now current. He provided no documentation regarding the status of his repossessed auto account, or of his efforts to verify that he no longer owed a debt on it. He provided no proof even that the $37 credit union debt was paid. Applicant provided no other details or documents about his current financial situation, such as his monthly income and expenses, or his assets. Beyond his own updated statement, Applicant submitted only two recommendation letters from current supervisors, both of whom attested to his financial stability, the excellence of his work, and the responsible performance of his duties safeguarding classified information. (AE A - AE D)

POLICIES

As the Supreme Court noted in Department of the Navy v. Egan, it is well established that no one has a right to a security clearance.2 Further, “the clearly consistent standard indicates that security determinations should err, if they must, on the side of denials.”3

The adjudicative 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 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.”

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.

ANALYSIS

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 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.

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 handing and safeguarding classified information.4

AG ¶ 19 provides conditions that could raise security concerns: ¶¶ 19(a) “inability to satisfy debts” and (c) “a history of not meeting financial obligations” are applicable, given the record evidence of Applicant’s delinquent debts.

The financial considerations 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 (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 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.

Applicant did not establish that any of these mitigating conditions apply. Chiefly, this is because Applicant did not provide sufficient documentary evidence in support of his assertions, despite having had at least four opportunities to do so. He did not submit documentation (or any explanation) with his answer to the SOR. He did not respond to the FORM. When I initially reopened the record, he submitted updated information and two reference letters, but no documents about his SOR debts. Finally, Applicant did not take advantage of the additional opportunity to provide relevant financial documentation when I opened the record a second time.

It is reasonable to expect applicants to present documentation about the satisfaction of specific debts.5 Applicant did not do so. He therefore did not meet his burden of establishing that his debts are being resolved, are under control, or are no longer delinquent, as shown by the Government’s evidence. He did not establish that he undertook good faith efforts to resolve his debts. Even if his debts occurred for reasons beyond his control, such as an unexpected decrease in income, he did not establish that he acted responsibly under the circumstances. He did not establish that his debts are unlikely to recur, and no longer cast doubt on his current reliability, trustworthiness, and good judgment. AG ¶¶ 20(a), 20(b), 20(d), and 20(e) do not apply.

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(a), 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 Guideline F in my whole-person analysis. Applicant did not provide sufficient documentation that his debts are being resolved in a good-faith, responsible manner. Because Applicant requested a determination on the record without a hearing, I had no opportunity to observe his credibility based on demeanor.6 Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the financial considerations security concerns.

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: AGAINST APPLICANT

Subparagraphs1.a-1.c: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Eligibility for access to classified information is denied.

_____________________________ Braden M. Murphy Administrative Judge

FOOTNOTES

1 The new AGs are available on the DOHA website at http://ogc.osd.mil/doha/DIRECTIVE%202017.pdf. 2 484 U.S. 518, 528 (1988). 3 484 U.S. at 531. 4 See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012). 5 ISCR Case No. 09-07091 at 2 (App. Bd. Aug. 11, 2010). 6 ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23. 2013).