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ISCR Case 17-01340.h1 — CASE

ISCR Case 17-01340.h1denied

Case Headnote

ISCR Case No. 17-01340.h1

deniedMar 7, 2018· Hon. Gregg A. Cervi· hearing

Summary

A 35-year-old painter employed by a defense contractor was denied a security clearance under Guideline F, Financial Considerations. The Statement of Reasons alleged the applicant had at least 39 delinquent medical debts and various other outstanding debts, totaling approximately $46,800. While the applicant was current on child support payments, the significant overall debt raised concerns.

The applicant admitted to the approximately $46,800 in delinquent debts. However, a key factor in the denial was the applicant's failure to provide evidence of any payments, efforts to resolve these debts, participation in credit counseling, or documentation of his current financial status.

Ultimately, the applicant's financial condition led to serious questions regarding his judgment and willingness to comply with rules and regulations, resulting in the denial of his security clearance application.

Why the Applicant Was Denied

The applicant admitted to having at least 39 delinquent medical debts and other debts totaling about $46,800.
The applicant did not provide evidence of payments or efforts to resolve his debts, credit counseling, or current financial status.
The applicant's financial condition raised serious questions about his judgment and willingness to comply with rules and regulations.

Conditions Referenced

Disqualifying

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

Key Rule Quoted

“[N]o one has a ‘right’ to a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedMay 18, 2017
Answer filed—Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decided on written record.
Decision dateMar 7, 2018

Cite For

Failure to Provide Evidence of Debt Resolution Efforts Under Guideline F
Impact of Financial Delinquencies on Security Clearance Eligibility
Consideration of the Whole-person Concept in Security Clearance Decisions

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: denied

The judge found that the applicant had multiple delinquent debts totaling approximately $46,800, which raised significant financial concerns under Guideline F. While the applicant was current on child support payments, he failed to provide evidence of efforts to resolve his other debts, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant has at least 39 delinquent medical debts and various other delinquent debt, totaling about $46,800. $46,800	Against Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b–1.rr	17 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant			—	—	—
1.bb	Applicant is current on child support payments. $526	For Applicant	Child Support Debt	Admitted	—	—	—

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. 17-01340 ) Applicant for Security Clearance )

For Government: Jeff A. Nagel, Esq., Department Counsel For Applicant: Pro se

03/07/2018 ______________

STATEMENT OF CASE

______________

CERVI, Gregg A., Administrative Judge

This case involves security concerns raised under Guideline F (Financial Considerations). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on March 13, 2016. On May 18, 2017, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline F.1 Applicant answered the SOR and elected to have the case decided on the written record in lieu of a hearing. The Government’s written brief with supporting documents, known as the File of Relevant Material (FORM), was submitted by Department Counsel on July 18, 2017. A complete copy of the FORM was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on July 26, 2017, but did not submit a response. The Government’s exhibits included in the FORM (Items 1 to 5) are admitted into evidence. The case was assigned to me on November 29, 2017.

FINDINGS OF FACT

Applicant is a 35-year-old painter employed by a defense contractor since October 2014. He graduated from high school and attended some college. He married in 2000 and divorced in 2009. He served in the U.S. Navy from 2000 to 2002. He left the Navy with an “other than honorable” discharge after he intentionally used marijuana in order to be discharged. Prior to this, he was absent without leave after being arrested for battery and sex with a minor, and missed his ship’s movement. He previously held a DOD security clearance.

The SOR alleges Applicant has at least 39 delinquent medical debts and various other delinquent debt, totaling about $46,800. Applicant admitted all the SOR allegations, except for an allegation that he was $526 past-due on child support payments, claiming he is now current. Applicant’s credit report (Item 6) shows that he is current on child support payments.

In his answer to the SOR, he explained that he was diagnosed with diabetes in 2008 at the same time he lost a job and medical insurance. Between 2008 and 2014, he held various positions with differing medical coverage. He began his current position in 2014 and has good insurance coverage. He is able to pay his current expenses and is starting to pay old debts a few at a time. He did not provide evidence of payments or other efforts to resolve his debts, credit counseling, or his current financial status.

Law and Policies

The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, effective on June 8, 2017. The revised AG apply to this case.

“[N]o 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 applicants 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 § 2.

National security eligibility 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, an administrative judge applies these guidelines 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 a person’s stability, trustworthiness, reliability, discretion, character, honesty, and judgment. AG ¶ 1(b).

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 that 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 made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense 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. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

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 the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 1(d).

ANALYSIS

Financial Considerations

The security concern under this guideline 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. . . .

The relevant disqualifying conditions under AG ¶ 19 include:

(a) inability to satisfy debts; and

Applicant’s admissions and the documentary evidence supporting the SOR allegations are sufficient to establish the disqualifying conditions, except Applicant is now current on child support payments. For the remainder of the SOR allegations, I reviewed the mitigating conditions under AG ¶ 20. None apply to this case.

Although Applicant’s inability to pay debts may have resulted from inconsistent income and jobs with quality medical insurance, he has not shown evidence of actions taken to resolve his debts. Applicant’s failure to address his debts and apparent disregard for his financial obligations, raises serious questions about his judgment and willingness to comply with rules and regulations. He presented insufficient evidence showing efforts to resolve his medical and other delinquencies. No mitigating condition is fully applicable.

WHOLE PERSON CONCEPT

Under AG ¶¶ 2(a), 2(c), and 2(d), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the guidelines and the 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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d). Although adverse information concerning a single criterion may not be sufficient for an unfavorable eligibility determination, the individual may be found ineligible if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or unstable behavior. AG ¶ 2(e).

I considered all of the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my findings of fact and comments under Guideline F in my whole-person analysis. Applicant’s financial condition remain an ongoing concern. He has not shown sufficient effort to resolve debts. I have insufficient record evidence to evaluate the extent his illness and inconsistent job history impacted his finances or ability to pay debts, and to determine that his current financial situation is under control.

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

Subparagraphs 1.a–1.aa; 1.cc–1.rr: Against Applicant

Subparagraph 1.bb: For Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

_______________________ Gregg A. Cervi Administrative Judge

FOOTNOTES

1 The DOD CAF acted 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 (AG) implemented by the DOD on September 1, 2006.