ISCR Case No. 17-03763.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) [Redacted] ) ADP Case No. 17-03763 ) Applicant for Public Trust Position )

For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se

09/20/2018 ______________

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves trustworthiness concerns raised under Guideline F (Financial Considerations). Eligibility for a public trust position is denied.

Statement of the Case

Applicant submitted an application for a public trust position on June 10, 2016. On November 20, 2017, the Department of Defense (DOD) sent her a Statement of Reasons (SOR), citing trustworthiness concerns under Guideline F. DOD acted under DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016), for all adjudicative decisions on or after June 8, 2017.

Applicant answered the SOR on February 16, 2018, and requested a decision on the written record without a hearing. Department Counsel submitted the Government’s written case on March 30, 2018. On May 15, 2018, a complete copy of the file of relevant material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. She received the FORM on May 31, 2018, and submitted Applicant’s Exhibit (AX) A.1 The case was assigned to me on September 6, 2018.

In Applicant’s answer to the SOR, she admitted all the allegations, with explanations. Her admissions are incorporated in my findings of fact.

Applicant is a 36-year-old licensed practical nurse (LPN) employed by a federal contractor since July 2016. She was licensed after completing school in June 2009. She was employed in the private sector from December 2009 to October 2014. She worked part time from December 2009 to March 2010, was unemployed from March to June 2010, worked full time from June 2010 to February 2013, left by mutual agreement, and was unemployed from February 2013 to August 2013. She was employed by a medical doctor from August 2013 to October 2014 and left by mutual agreement. She was unemployed for two months and then worked for a federal contractor from November 2014 to March 2016, when she was fired for tardiness and absenteeism. She was unemployed until she was hired for her current position. (FORM Item 2 at 11-17; FORM Item 3 at 2, 12.) She has never married and has no children. She has never held a security clearance or eligibility for a public trust position.

The SOR alleges 18 delinquent debts, totaling about $37,366. The debts are reflected in credit reports from June 2016 and September 2017 and the summary of a personal subject interview (PSI) conducted in March 2017. (FORM Items 3, 4 and 5.) The debts are a $10,209 indebtedness to the U.S. government related to disability payments, a delinquent car loan, three delinquent student loans, three delinquent medical bills, and ten miscellaneous consumer debts. Applicant admitted all the debts and stated that payment plans were in place for two student loans (SOR ¶¶ 1.d and 1.i), that a telecommunications bill had been paid (SOR ¶ 1.p), and that she had payment plans in place or was trying to negotiate settlements for the rest of the debts alleged in the SOR. She submitted evidence that payments on two student loans not alleged in the SOR were current. (AX A.) She submitted no documentary evidence of payments, payment plans, disputes, or other resolution of any of the debts alleged in the SOR. She submitted no evidence regarding her income and expenses.

The standard set out in the adjudicative guidelines for 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. (AG ¶¶ 1(d) and 2(c).) 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 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. 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 national security eligibility 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 national security eligibility.

Guideline F, Financial Considerations

The 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. . . . 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 a person might knowingly compromise sensitive or classified information to raise money. It encompasses concerns about a person’s self-control, judgment, and other qualities essential to protecting sensitive or classified information. A person who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding sensitive or classified information. See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012).

Applicant’s admissions and the documentary evidence in the FORM establish the following potentially disqualifying conditions:

AG ¶ 19(a): inability to satisfy debts;

AG ¶ 19(b): unwillingness to satisfy debts regardless of the ability to do so; and

AG ¶ 19(c): a history of not meeting financial obligations.

The following mitigating conditions are potentially applicable:

AG ¶ 20(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;

AG ¶ 20(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;

AG ¶ 20(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; and

AG ¶ 20(d): the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts.

None of the above mitigating conditions are established. Applicant’s delinquent debts are numerous and recent. Her underemployment from December 2009 to March 2010 and unemployment from March to June 2010 were conditions beyond her control. She submitted no evidence of the circumstances under which she left jobs by mutual agreement in February 2013 and October 2014. Her unemployment from March to July 2016 was due to her tardiness and absenteeism. She submitted no evidence of responsible conduct during her periods of underemployment and unemployment. She submitted no evidence of financial counseling and no evidence of payment agreements, payments, or disputes regarding the debts alleged in the SOR.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a public trust position must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. In applying the whole- person concept, an administrative judge must evaluate an applicant’s eligibility for a public trust position by considering the totality of the applicant’s conduct and all relevant circumstances. An 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.

I have incorporated my comments under Guideline F in my whole-person analysis and considered the factors in AG ¶ 2(d). Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate her credibility and sincerity based on demeanor. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003).

After weighing the disqualifying and mitigating conditions under Guideline F, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the trustworthiness concerns raised by her delinquent debts. She has not carried her burden of showing that it is clearly consistent with national security to grant her eligibility for a public trust position.

Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT

Subparagraphs 1.a-1.r: Against Applicant

I conclude that it is not clearly consistent with the interests of national security to grant Applicant eligibility for a public trust position. Eligibility for a public trust position is denied.

LeRoy F. Foreman Administrative Judge

1 The FORM included a summary of a personal subject interview (PSI) conducted in March 2017. The PSI summary was not authenticated as required by Directive ¶ E3.1.20. Department Counsel informed Applicant that she was entitled to comment on the accuracy of the PSI summary; make any corrections, additions, deletions or updates; or object to consideration of the PSI summary on the ground that it was not authenticated. Applicant responded to the FORM but did not comment on the accuracy or completeness of the PSI summary, nor did she object to it. I conclude that she waived any objections to the PSI summary. Although pro se applicants are not expected to act like lawyers, they are expected to take timely and reasonable steps to protect their rights under the Directive. ISCR Case No. 12-10810 at 2 (App. Bd. Jul. 12, 2016). See ADP Case No. 17-03252 (App. Bd. Aug. 13, 2018) (holding that it was reasonable for the administrative judge to conclude that any objection had been waived by an applicant’s failure to object after being notified of the right to object).