ISCR Case No. 17-03975.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ADP Case No. 17-03975 ) Applicant for Public Trust Position )

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

04/30/2018 ______________

______________

KILMARTIN, Robert J., Administrative Judge:

Applicant did not mitigate the financial considerations trustworthiness concerns. Applicant’s eligibility for access to sensitive information in a public trust position is denied.

Statement of the Case

On December 12, 2017, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing trustworthiness concerns under Guideline F, financial considerations. The action was taken under DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive), and the adjudicative guidelines (AG’s) effective within the DOD for SORs issued after June 8, 2017.

Applicant timely answered the SOR on December 27, 2017, and elected to have a hearing before an administrative judge. The case was assigned to me on January 24, 2018.

The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing (NOH) on March 22, 2018, scheduling the hearing on April 10, 2018. However, Applicant did not receive either the physical copy or e-mail copy of the NOH because she moved recently. (Tr. 12) So, Applicant was contacted telephonically and agreed to have her hearing on April 11, 2018. (Tr. 15) Applicant affirmatively waived her right to wait 15 days from the NOH to the date of her hearing. (Tr. 13) Also, since Department Counsel’s luggage was sidetracked in route to the hearing, he did not have the Government’s Exhibits (GE) for the hearing. I left the record open until April 25, 2018 for department counsel to mail the GE’s to Applicant and give her an opportunity to object. She had no objections and submitted post-hearing documents during this period.1 I conducted the hearing on April 11, 2018. DOHA received the transcript of the hearing (Tr.) on April 20, 2018.

. Applicant is 25 years old. She graduated from high school in 2010. She was never married, but has a two-year old daughter. Applicant lives with the child’s father, who is her fiancé. Applicant took some college courses, and she intends to return to college in the future to pursue a nursing degree. (Tr.19) She has been working in a position of trust at a health care corporation for one year, with no problems. (Tr. 11) Applicant testified that she was attending college full-time when she incurred three of the debts from rental arrearages. She was working, oftentimes at two jobs; she was 18- 19 years old; and she conceded her financial mismanagement at that time in her life. (Tr. 22) She was laid-off from her job as certified nursing assistant (CNA) in December 2010 and could not make rental payments. (Tr. 23)

In her Answer to the SOR, Applicant admitted the alleged delinquent debts placed for collections at SOR ¶¶ 1.a, 1.b and 1.d, and the charged-off debt at SOR ¶ 1.c. She also stated she was looking for a second job to pay off these debts. She denied the medical debt alleged at SOR ¶ 1.e and disputed it because she had health insurance, which should have covered it. After she disputed it, this debt was removed from her credit report. (GE 4) She testified that the delinquencies alleged at SOR ¶¶ 1.a, 1.b and 1.d, resulted from her inability to pay her rent when she was in college from 2010 to 2012. (Tr. 24-25) She provided a transcript of her college courses. She did not obtain a degree. (AE A) Her credit reports reflect that these debts first became delinquent in 2012. (GE 2, 3, 4) Applicant provided post-hearing documents showing that she reached out to the creditor in SOR ¶ 1.d and established a payment plan, making an initial payment of $107 toward that $982 debt. (AE B) Her five delinquent debts alleged in the SOR total just over $13,000.

Applicant testified that the charged-off debt for $2,725 at SOR ¶ 1.c was for a bank-credit card that she opened in 2015. (Tr. 27) She and her live-in fiancé used it to pay living expenses. When he lost his job in 2015, and she became pregnant, they could not keep up with the payments on this credit card. She had to give up her CNA job due to the pregnancy. (Tr. 27-28) Applicant stated her intent to pay all of her delinquent debts. (Tr. 29) Applicant testified that she is current on payments of $400 per month on $52,000 in student loans, which are outstanding. (Tr. 31) She is looking for a second job to help with expenses, and she is exploring an income-based repayment plan for her student loans.4

Applicant claims to have disputed the debt at SOR ¶ 1.e for $172. The record was left open for two weeks specifically so that she could produce some documentary evidence of this dispute, along with a budget and other substantiation of any correspondence with creditors. (Tr. 29-30, 43) She did not provide the requested documents. She testified that she did have some semblance of a budget, and usually had approximately $300 left over each month, after paying expenses. (Tr. 43) She had no financial counseling. (Tr. 38) Applicant presently earns $34,000 per year, and her fiancé earns $30,000. She stated that now that they have two incomes, she plans to start a repayment plan with her creditors and buy a home. (Tr. 46) She provided no evidence of any correspondence or repayment plans with her creditors.

Positions designated as ADP I and ADP II are classified as “sensitive positions.” (See Code of Federal Regulations Title 32 – National Defense, part 154.13 and part 154, Appendix J – ADP Position Categories and Criteria for Designating Positions) “The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, 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.” The Deputy Under Secretary of Defense (Counterintelligence and Security) Memorandum, dated November 19, 2004, indicates trustworthiness adjudications will apply to cases forwarded to DOHA by the Defense Security Service and Office of Personnel Management. Department of Defense contractor personnel are afforded the right to the procedures contained in DOD Directive 5220.6 before any final unfavorable access determination may be made.

When evaluating an applicant’s suitability for a public trust position, the administrative judge must consider the disqualifying and mitigating conditions in the AG. 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 ¶ 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 access to [sensitive] information will be resolved in favor of national security.”

1 E-mail from Applicant to Department Counsel dated April 23, 2018 stating that she had no objection. 4 The SOR does not allege delinquencies on the student loans.