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ISCR Case 14-03217.h1 — CASE

ISCR Case 14-03217.h1denied

Case Headnote

ISCR Case No. 14-03217.h1

deniedJul 2, 2015· Hon. Richard A. Cefola· hearing

Summary

A 36-year-old applicant was denied eligibility for a public trust position due to financial considerations under Guideline F. The Statement of Reasons alleged the applicant was indebted to the U.S. Department of Education for past-due student loans totaling approximately $43,425. Additionally, the applicant admitted to owing Creditor C about $1,032 for a past-due student loan, and was alleged to owe Creditor E approximately $696 for another past-due debt.

The judge determined that the applicant's efforts to address these debts were insufficient and did not demonstrate good faith. Specifically, the applicant failed to explain how her financial difficulties arose and did not provide evidence of resolving her past-due debts.

The method of repaying her student loans was not considered a good-faith effort, leading to the denial of her security clearance.

Why the Applicant Was Denied

The applicant failed to explain how she incurred her financial difficulties.
The applicant's method of repaying her student loans was deemed not a good-faith effort.
The applicant did not provide evidence of resolving her past-due debts.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)raisedHistory of Not Meeting Financial Obligations

Key Rule Quoted

“Failure or inability 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 [sensitive] information.”

Procedural Posture

SOR issuedAug 12, 2014
Answer filedSep 24, 2014
Hearing held—Applicant represented herself (pro se) and submitted responses to the FORM.
Decision dateJul 2, 2015

Cite For

Insufficient Good Faith Efforts to Resolve Financial Obligations
Impact of Financial Difficulties on Trustworthiness Determinations
Criteria for Evaluating Financial Considerations Under Guideline F

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 significant financial concerns under Guideline F, including substantial past-due debts related to student loans. The applicant's efforts to address these debts were deemed insufficient, leading to a decision against the applicant on all allegations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	It is alleged that Applicant is indebted to the U.S. Department of Education for past-due student loans totaling about $43,425. $43,425	Against Applicant	Student Loan Debt	Denied	—	—	—
1.b	It is alleged that Applicant is indebted to the U.S. Department of Education for past-due student loans totaling about $43,425. $43,425	Against Applicant	Student Loan Debt	Denied	—	—	—
1.c	Applicant admits that she is indebted to Creditor C for a past-due student loan in an amount totaling about $1,032. $1,032	Against Applicant	Student Loan Debt	Admitted	—	—	—
1.d	Applicant admits that she is indebted to Creditor C for a past-due student loan in an amount totaling about $1,032. $1,032	Against Applicant	Student Loan Debt	Admitted	—	—	—
1.e	It is alleged that Applicant is indebted to Creditor E for a past-due debt in the amount of about $696. $696	Against Applicant	Unspecified Financial	Denied	—	—	—

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: ) ) ) ADP Case No. 14-03217 ) ) Applicant for Public Trust Position )

For Government: Richard Stevens, Esquire, Department Counsel For Applicant: Pro se

July 2, 2015 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

On April 9, 1993, the Composite Health Care Systems Program Office (CHCSPO), the Defense Office of Hearings and Appeals (DOHA), and the Assistant Secretary of Defense for Command, Control, Communications and Intelligence (ASD C3I) entered into a memorandum of agreement for DOHA to provide trustworthiness determinations for contractor personnel employed in Information Systems Positions as defined in DoD Regulation 5200.2-R, Personnel Security Program (Regulation), dated January of 1987.

Applicant submitted her Questionnaires for Public Trust Position (SF 85P), on March 12, 2013. On August 12, 2014, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the trustworthiness concerns under Guideline F regarding Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), effective within the Department of Defense after September 1, 2006. Applicant answered the SOR in writing (Answer) on September 24, 2014, and requested an Administrative Determination by an administrative judge. Department Counsel issued a File of Relevant Material (FORM) on February 20, 2015. Applicant responded to the FORM (Response) on or about May 11, 2015. Department Counsel had no objection, and the documents are entered into evidence. The case was assigned to me on May 27, 2015. Based upon a review of the pleadings and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

In her Answer to the SOR Applicant admitted the factual allegations in Paragraphs 1.c., and 1.d. of the SOR, with explanations. She denied the factual allegations in Paragraphs 1.a., 1.b., and 1.e. of the SOR.

Guideline F - Financial Considerations

Applicant is 36 years old. Neither in her Answer nor in her Response does Applicant explain how she incurred her current financial difficulties. (Item 2 at page 3.)

1.a. and 1.b. It is alleged that Applicant is indebted to the U.S. Department of Education for past-due student loans totaling about $43,425. (Item 4 at page 5.) She avers that she is addressing this extremely large past-due debt by having her income tax refund withheld, and diverted to the Department of Education. Her diverted refund payment for 2014 was $1,243.50, and for 2015 was $1,201. (Answer at page 5, and Response at page 5.) However, this methodology of payment is not a good-faith effort to repay this debt. Even without considering the interest that this debt may accrue; and assuming Applicant will get similar refunds diverted in the future, it will take her more than 35 years to pay this debt. These allegations are found against Applicant.

1.c. and 1.d. Applicant admits that she is indebted to Creditor C for a past-due student loan in an amount totaling about $1,032. In her Answer, she avers that “my account has been deferred until 11-4-2014.” However, it is now well after November 2014, and Applicant has offered nothing further in this regard. These allegations are also found against Applicant.

1.e. It is alleged that Applicant is indebted to Creditor E for a past-due debt in the amount of about $696. (Item 4 at page 17.) In her Answer, she avers the following:

I have submitted a copy of the newly established contract [dated “09/09/14"] with . . . [Creditor E]. The signing of the contract with . . . [Creditor E], was an agreement made to have my account removed from collections, by agreeing to pay $44.99 monthly for the term.

However, it is now well after September 2014, and Applicant has offered nothing further in this regard. This allegation is found against Applicant.

POLICIES

Positions designated as ADP I and ADP II are classified as “sensitive positions.” (See Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3.) “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.” (See Regulation ¶ C6.1.1.1.) 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 the Directive before any final unfavorable access determination may be made. (See Regulation ¶ C8.2.1.)

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 over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), 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.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable trustworthiness decision.

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. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to sensitive information. Decisions include, by necessity, consideration of the possible risk the Applicant may deliberately or inadvertently fail to protect or safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of sensitive information. Section 7 of Executive Order (EO) 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” (See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.)

ANALYSIS

Guideline F, Financial Considerations

The trustworthiness concern relating to the guideline for Financial Considerations is set out in AG ¶ 18:

Failure or inability 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 [sensitive] information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.

The guideline notes several conditions that could raise trustworthiness concerns. Under AG ¶ 19(a), an “inability or unwillingness to satisfy debts@ is potentially disqualifying. Similarly under AG ¶ 19(c), “a history of not meeting financial obligations@ may raise security concerns. Applicant has significant past-due debts, many of which she has not yet resolved. I can find no countervailing Mitigating Condition that is applicable here.

WHOLE PERSON CONCEPT

Under the whole-person concept, the Administrative Judge must evaluate an Applicant’s eligibility for a public trust position by considering the totality of the Applicant’s conduct and all the circumstances. 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.

The Administrative Judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(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) 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 considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a public trust position. For all these reasons, I conclude Applicant has not mitigated the trustworthiness concerns arising from her financial considerations.

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

Subparagraph 1.a. Against Applicant

Subparagraph 1.b. Against Applicant

Subparagraph 1.c. Against Applicant

Subparagraph 1.d. Against Applicant

Subparagraph 1.e. 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 interest to grant Applicant eligibility for a public trust position. Eligibility for access to sensitive information is denied.

Richard A. Cefola Administrative Judge