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ISCR Case 14-03551.h1 — CASE

ISCR Case 14-03551.h1denied

Case Headnote

ISCR Case No. 14-03551.h1

deniedJun 14, 2016· Hon. Elizabeth M. Matchinski· hearing

Summary

A 64-year-old military retiree was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The Statement of Reasons detailed several allegations, including a mortgage that was $14,141 past due on a balance of $188,812 and in foreclosure. Additionally, the applicant allegedly owed $131 for a telephone debt and collection balances totaling $1,785 across seven accounts.

The applicant had filed for Chapter 13 bankruptcy around February 2012, which was dismissed in August 2012. Despite attempts to manage his debts, including a loan modification and bankruptcy plan, he failed to complete required financial counseling. This led to the foreclosure of his home and ongoing delinquent debts.

The judge found that the applicant failed to demonstrate responsible financial management after filing for bankruptcy and did not complete the required financial counseling for his bankruptcy discharge. Consequently, the security clearance was DENIED.

Why the Applicant Was Denied

The applicant failed to demonstrate responsible financial management after filing for bankruptcy.
He did not complete the required financial counseling for his bankruptcy discharge.
The applicant defaulted on his primary mortgage, leading to foreclosure.

Conditions Referenced

Disqualifying

AG ¶ 19(a)appliedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)appliedA History of Not Meeting Financial Obligations

Mitigating

AG ¶ 20(a)rejectedBehavior Happened so Long Ago or Occurred Under Circumstances Unlikely to RecurThe applicant's mortgage delinquency and bankruptcy issues were recent and ongoing.
AG ¶ 20(b)appliedConditions That Resulted in Financial Problems Were Largely Beyond the Person's ControlThe applicant's financial issues were exacerbated by unemployment and the death of his spouse.
AG ¶ 20(c)rejectedReceived or Is Receiving Counseling for the ProblemThe applicant did not complete the required financial counseling.
AG ¶ 20(d)rejectedInitiated a Good-faith Effort to Repay Overdue CreditorsThe applicant had not contacted several creditors to resolve outstanding debts.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedDec 11, 2014
Answer filedJan 10, 2015
Hearing heldDec 2, 2015
Decision dateJun 14, 2016

Cite For

Failure to Complete Required Financial Counseling Under Bankruptcy Law
Impact of Unresolved Financial Obligations on Security Clearance Eligibility
Consideration of Personal Circumstances in Financial Issues 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 multiple financial concerns under Guideline F, including a mortgage delinquency and several collection accounts. The applicant's financial issues were attributed to past unemployment and personal circumstances, but ultimately, the judge ruled against the applicant on most allegations, citing ongoing financial irresponsibility and failure to meet obligations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant’s mortgage loan was $14,141 past due on a balance of $188,812 and in foreclosure $14,141	Against Applicant	Mortgage or Home Loan Debt	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	Applicant allegedly owed collection balances totaling $1,785 on seven accounts $1,785	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.c	Applicant owed $131 on a telephone debt $131	For Applicant	Utility or Phone Debt	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.d	Applicant filed for a Chapter 13 bankruptcy around February 2012 that was dismissed in August 2012	Against Applicant	Bankruptcy Filing	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.e	Applicant owed collection balances totaling $1,785 on seven accounts	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.f	Applicant owed collection balances totaling $1,785 on seven accounts	For Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.g	Applicant owed collection balances totaling $1,785 on seven accounts	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.h	Applicant owed collection balances totaling $1,785 on seven accounts	For Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.i	Applicant owed collection balances totaling $1,785 on seven accounts	For Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—

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. 14-03551 ) ) Applicant for Security Clearance

For Government: Eric H. Borgstrom, Esq., Department Counsel For Applicant: Pro se

06/14/2016 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Applicant filed a Chapter 13 bankruptcy petition in February 2012 to address $1,882 in unsecured delinquent consumer credit debt and $176,572 in mortgage debt. Payments were disbursed to four creditors under a confirmed Chapter 13 plan before his case was closed without entry of discharge for failure to complete financial counseling. He defaulted on his home loan, and his lender foreclosed. He has yet to demonstrate that he can handle his finances responsibly. Clearance is denied.

Statement of the Case

On December 11, 2014, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline F, Financial Considerations, and explaining why it was unable to find it clearly consistent with the national interest to grant or continue security clearance eligibility for him. The DOD CAF took the action under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DOD on September 1, 2006. On January 10, 2015, Applicant answered the SOR allegations and requested a hearing before an administrative judge from the Defense Office of Hearings and Appeals (DOHA). On October 22, 2015, the case was assigned to me to conduct a hearing to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for him. On November 3, 2015, I scheduled a hearing for December 2, 2015.

I convened the hearing as scheduled. Seven Government exhibits (GEs 1-7) were admitted into evidence without objection. Applicant testified on his behalf, as reflected in a transcript (Tr.) received on December 14, 2015.

The record was held open after the hearing, initially for two weeks, for Applicant to submit documentary evidence. On December 15, 2015, Applicant submitted a statement by email concerning his efforts to address his remaining delinquencies and some tax issues that surfaced during his hearing. On December 16, 2015, I marked his statement as Applicant Exhibit (AE) A, and extended the deadline to January 8, 2016, for documentary submissions to corroborate his claimed efforts. No documents were received by the new deadline, so the record closed on January 8, 2016.

Summary of SOR Allegations

The SOR alleges under Guideline F that, as of December 11, 2014, Applicant’s mortgage loan was $14,141 past due on a balance of $188,812 and in foreclosure (SOR ¶ 1.a). Additionally, he allegedly owed collection balances totaling $1,785 on seven accounts (SOR ¶¶ 1.b-1.cand 1.e-1.i), and he had filed for a Chapter 13 bankruptcy around February 2012 that was dismissed in August 2012 (SOR ¶ 1.d). When he answered the SOR allegations, Applicant admitted the bankruptcy filing in an attempt to avert foreclosure of his mortgage, but he denied his bankruptcy case was dismissed. It was closed in July 2013 after payment of the debts in SOR ¶ 1.band SOR ¶¶ 1.e through 1.h. Applicant asserted that the telephone debt of $131 in SOR ¶ 1.chad been paid. Applicant denied the mortgage delinquency, explaining that he obtained a loan modification in August 2012 and made four payments before the loan servicer ceased debiting his account and demanded payment of the full delinquency. When he could not afford the payment, the lender foreclosed in February 2014. Applicant attributed his financial issues to the loss of spousal income on her death in June 2010, his unemployment from October 2010 to March 2012, and the fact that he was financially supporting his adult stepdaughter and grandson.

FINDINGS OF FACT

After considering the pleadings, exhibits, and transcript, I make the following findings of fact.

Applicant is a 64-year-old high school graduate who served in the United States military from November 1973 until November 1997, when he retired with an honorable discharge. (GE 1; Tr. 21.) His monthly military retirement income is around $1,900 after deductions. (Tr. 30.) Applicant worked for a defense contractor on a military base as an electronics technician for ten years and then for three years as a computer systems analyst. He was laid off in October 2010 when his then employer lost the contract. Applicant was unemployed until March 2012, when he went to work for his current employer, another defense contractor. (GE 1; Tr. 27-29.) He was granted a DOD secret clearance after an investigation completed in October 2002. (GE 1.)

Applicant was married in September 1977 and widowed in June 2010. (GE 1; Tr. 22.) He has one stepdaughter, who will turn 50 in July 2016. She lived with Applicant from 2008 until May 2015. (Tr. 23-24.) She receives a Social Security disability benefit, and until 2014 she supplemented her income by delivering newspapers. Her only child, a son now around age 30, lived with Applicant for about 15 years. (Tr. 24-26.) At times in the past, Applicant also provided housing for friends of his spouse, his stepdaughter, and/or his grandson. (Tr. 27.)

Applicant and his spouse purchased their home in July 1994. Over the years, they took advantage of the equity in their home to insulate their home and build two barns for their three horses. (Tr. 31-32.) Available credit information shows that they obtained a Veterans Administration loan for $109,000 in February 1998. They paid off that loan in July 2003. In February 2005, they obtained a conventional 30-year mortgage of $156,000 that they paid off through a refinancing with a new lender in March 2007. They obtained a $164,000 primary mortgage that was paid on time until 2009. They were then chronically late 30 to 60 days in their payment before their loan was transferred in October 2009 to the loan servicer in SOR ¶ 1.a. (GE 5; Tr. 31.) In December 2007, they took on a second mortgage of $21,011, which they paid on time. (GE 3.)

Applicant collected his spouse’s Social Security benefit after his spouse died in June 2010. After he was laid off in October 2010, he collected unemployment compensation at little more than $400 a week, less than half of his previous wage earnings of $900 a week. (Tr. 28-29.) However, with his late wife’s Social Security benefit, his military retirement, and his unemployment compensation, his income totaled $73,467 in 2010 and $90,060 in 2011. (GE 2.)

Applicant attempted to obtain a modification of his primary mortgage four or five times. (Tr. 38.) By February 2012, he was approximately $13,356 past due on the loan. With foreclosure action pending against his home loan, Applicant filed a Chapter 13 bankruptcy petition on February 8, 2012. He filed the bankruptcy in an effort to avert foreclosure.1 (GEs 1, 6.) Applicant listed as secured claims his primary mortgage of $157,008 and his second mortgage of $19,564, of which $16,572 was unsecured. He listed unsecured nonpriority claims totaling $1,882, including the debts alleged in SOR ¶¶ 1.b (duplicated in SOR ¶ 1.f), 1.c (as a $218 charged-off balance), 1.e, and 1.g-1.i. On February 29, 2012, Applicant filed a Chapter 13 plan. Loss mitigation issues led to dismissal of his bankruptcy on motion of the trustee on July 3, 2012. At Applicant’s motion, the dismissal was vacated in August 2012. On January 8, 2013, the bankruptcy court approved a loan modification of the primary mortgage. Applicant filed an amended Chapter 13 plan on February 29, 2013, which was confirmed on March 25, 2013. Under the plan, his payment to the trustee was changed from $890 per month for fifteen months to a total payment of $4,250, an amount sufficient to pay 100% of the unsecured claims allowed by the court. Applicant completed his payments under the bankruptcy plan as of April 16, 2013. According to the trustee’s accounting, four claims of $244.74 (SOR ¶ 1.i), $454.06 (SOR ¶ 1.h), $128.88 (SOR ¶ 1.c),2 and $251.83 (not alleged in SOR) were allowed and paid in full. The creditors in SOR ¶¶ 1.b (duplicated in SOR ¶ 1.f), 1.e, and 1.gdid not assert claims. His bankruptcy attorney was paid $1,000 through the plan. Applicant’s bankruptcy was closed on July 1, 2013, without an entry of discharge because Applicant had not submitted the required certification that he had completed an instructional course concerning personal financial management.3 (GE 2.)

Under his modified mortgage loan, Applicant’s monthly payment was reduced from $1,200 to $960. (GEs 3-5; Tr. 33-34.) The payments were automatically debited from his account by the loan servicer from April 2013 through July 2013, who stopped the deduction because of the bankruptcy. Applicant did not notice that the loan payments were no longer being debited. Three months later, he received a demand for full payment of the delinquency. Applicant could not make the payment because he was supporting his grandson. The loan servicer wanted him to apply for a new loan modification, but Applicant elected to default on his loan. (Tr. 34-40.) On February 20, 2014, the lender foreclosed when his primary mortgage was $14,141 past due. (GE 4; Answer; Tr. 34-40.) Applicant, his stepdaughter, and his grandson lived in the home until May 2015, when Applicant moved his stepdaughter and grandson to another state. (Tr. 23, 40.)

As of November 2015, Equifax was reporting that Applicant owed delinquent balances of $224 and $131 on the collection debts in SOR ¶¶ 1.b (duplicated in SOR ¶ 1.f) and 1.c, although the creditor in SOR ¶ 1.chad received $128 in the bankruptcy. Applicant’s primary mortgage was reportedly past due $14,141 on a balance of $177,935 as of February 28, 2014. A cable bill had been placed in collection for $404 in July 2015. As of September 29, 2015, the unpaid balance was $410. He was making timely payments of $265 per month on his second mortgage with a balance of $15,035. (GE 7.) Applicant has made no efforts to contact the creditors that have not have been paid, such as the creditors in SOR ¶ 1.b (duplicated in SOR ¶ 1.f) and SOR ¶ 1.e. He has received no collection letters. (Tr. 58.) As of December 2, 2015, Applicant’s foreclosed home was still on the market. Applicant was still having his mail delivered to him at that address, even though he had to vacate the property in May 2015. (Tr. 50.)

Applicant rents his living quarters at $475 per month. His monthly income after deductions is approximately $5,700 ($3,800 from employment and $1,900 in military retirement). He continues to provide financial support for his stepdaughter and grandson at $1,000 a month as of December 2015. (Tr. 51-52.) He purchased cars costing approximately $2,000 each for his stepdaughter and grandson in the last year. (Tr. 76.) One of the vehicles “went to junk.” In March 2015, he bought a $500 vehicle for his stepdaughter and grandson, which also “turned out to be junk.” (Tr. 79.) Applicant spent $3,000 in early 2014 in an effort to repair his own vehicle but it would not run. (Tr. 77-78.)

Applicant owes about $3,000 in non-covered medical expenses from surgery in June 2015. He has paid about $300. About $1,700 is for rehabilitation services for which he had yet to arrange repayment as of his security clearance hearing. (Tr. 53-54.) Applicant had about $2,000 in checking deposits and $270 in savings as of December 2, 2015. (Tr. 55.) Applicant was unable to account for some of his income, other than to add that he gives his church $150 a month. (Tr. 56, 71.) Applicant acknowledged that the debtor education required of the bankruptcy would have helped him manage his finances. As to why he had not completed the education in financial management, Applicant responded, “At the time, I was going through a lot of stress I think and I either missed it or I just wrote it off.” (Tr. 56.) Applicant believes that his bankruptcy attorney reminded him of his responsibility to complete the financial education requirement. (Tr. 56-57.)

As of December 2, 2015, Applicant had not filed his federal income tax return for tax year 2014. He testified that he received a 1099-C indicating that his lender had cancelled $22,000 in debt for his primary mortgage, although he provided no corroborating documentation. (Tr. 69-70.) Applicant’s wages were being garnished in the amount of approximately $200 a paycheck for federal taxes for tax year 2013. He still owed approximately $600 of his $846 underpayment. (Tr. 61-63, 66-68.) About his state income tax return for 2014, Applicant testified at his hearing to his belief that he filed because he received a refund of $160, although he also testified that the refund could be for tax year 2013. (Tr. 64, 67.) On December 15, 2015, Applicant indicated that he had not been able to find the 1099-C form to file his delinquent federal and apparently also state returns for 2014. He was in the process of hiring a tax preparer to assist him in filing both his federal and state income tax returns for tax year 2014. He had yet to contact the creditors to whom he reportedly owed past-due balances per his November 2015 credit report. Applicant was making payments toward his medical bills. He added that he could be making arrangements with the rehabilitation facility to pay his largest bill, of $1,700, in installments. (AE A.)

Applicant is required to maintain his security clearance for his employment. (Tr. 73.) He has not committed any security violations with his current employer. Applicant misplaced a classified disk for about two or three months with his previous employer, but he was not written up or reprimanded for the violation. (Tr. 60.)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered in evaluating an applicant’s eligibility for access to classified information. 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 overall 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 classified 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. 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 to obtain 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 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. Section 7 of Executive Order 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 security concerns about financial considerations are set forth 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 classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.

Applicant was approximately $13,356 past due on his primary mortgage when he filed a Chapter 13 bankruptcy petition in February 2012 in an effort to avert foreclosure of his loan. He owed $1,882 in unsecured debt, most of which had been charged off or placed for collection. Disqualifying conditions AG ¶ 19(a), “inability or unwillingness to satisfy debts,” and 19(c), “a history of not meeting financial obligations,” are established by his delinquencies.

Mitigating condition 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,” partially applies in that some of the credit card debts were incurred some time ago and were resolved before the SOR was issued in December 2014. Four of the unsecured creditors included in his bankruptcy asserted claims. The evidence shows that the debts in SOR ¶¶ 1.h, 1.i, and likely also 1.cwere paid in April 2013 through the bankruptcy. The creditors in SOR ¶¶ 1.b (duplicated in SOR ¶ 1.f), 1.e, and 1.gdid not assert claims. Given that his bankruptcy was dismissed without a discharge being entered, he is legally liable for repayment of those debts. AG ¶ 20(a) also would not apply in mitigation of his mortgage delinquency. Under his Chapter 13 bankruptcy, Applicant was required to make timely mortgage payments. He obtained a loan modification of his primary mortgage, which reduced his monthly payment from $1,200 to $960. Four payments were made on the modified loan between April 2013 and July 2013, when his loan servicer then stopped debiting his account for the payments. In lieu of pursuing a new loan modification, Applicant chose not to pay the mortgage. The lender foreclosed on February 20, 2014, for nonpayment of the loan.

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, or a death, divorce or separation), and the individual acted responsibly under the circumstances,” is established in so far as his finances were compromised by his unemployment from October 2010 to March 2012 following an unforeseen job layoff. Even so, he reported income from his late wife’s Social Security and his retirement income of $90,060 in 2011. AG ¶ 20(b) also requires that Applicant act responsibly once his situation improved. Applicant showed good financial judgment by filing a Chapter 13 bankruptcy in an effort to save his home. His unsecured consumer credit debt was delinquent, but he owed only $1,882, so he did not rely excessively on credit during his unemployment. He had credible plans in place with the home loan modification and bankruptcy that would have fully addressed the issues in the SOR. However, it is difficult to find that Applicant acted financially responsibly when he failed to complete the debtor education required for a bankruptcy discharge and then defaulted on his primary mortgage.

Four creditors received satisfaction through Applicant’s bankruptcy, including the creditors in SOR ¶¶ 1.c, 1.h, and 1.i. Mitigating conditions AG ¶ 20(c), “the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control; and AG ¶ 20(d), “the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts,” apply to those debts. However, the creditors who did not assert claims during his bankruptcy are not precluded from pursuing Applicant for payment, given the dismissal of his bankruptcy. As of December 15, 2015, Applicant had not yet contacted the creditors in SOR ¶ 1.b (duplicated in SOR ¶ 1.f), SOR ¶ 1.e, and SOR ¶ 1.g, even though he appears to have sufficient funds to make payments on those debts. As for his defaulted primary mortgage, the lender foreclosed on February 20, 2014. Eight days later, his lender reported a past- due balance of $14,141 as alleged in SOR ¶ 1.a. Applicant asserts that he received a 1099-C for $22,000 in 2014 from the loan servicer, but he cannot find the document. Assuming the debt cancellation, it is unclear whether it completely discharged him from any further liability on the mortgage. The loan had a balance of $177,935 shortly after the foreclosure, and the home had not sold as of December 2015. The evidence falls short of satisfying either AG ¶ 20(c) or AG ¶ 20(d) as to the mortgage delinquency or the collection debts in SOR ¶¶ 1.b, 1.e, and 1.g.

AG ¶ 20(e) applies with respect to SOR ¶ 1.fin that it is a duplicate listing of the debt in SOR ¶ 1.band does not represent an additional balance beyond the $224 owed on SOR ¶ 1.bas of November 2015. AG ¶ 20(e) provides:

(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.

Financial considerations concerns persist whether or not Applicant is legally liable for any balance remaining on his mortgage loan. While the outstanding collection debts in the SOR total less than $800, Applicant has yet to demonstrate that he can be counted on to make timely payments on all his financial obligations. A $404 cable communications debt was placed for collection in July 2015. Applicant’s wages were being garnished by the IRS to collect a federal tax delinquency for 2013. He had paid only $200 of the $800 debt as of December 2015. He may well also owe delinquent taxes for 2014, given that he would have to report as income any debt cancelled on his mortgage loan. Applicant has paid only about $300 of $3,000 in medical debt incurred in 2015. He plans to arrange for installment payments of his largest medical debt, $1,700 for rehabilitation services. Even so, the DOHA Appeal Board has held that promises to pay debts are not a substitute for a track record of timely payments. See ISCR Case No. 07-13041 at 4 (App. Bd. Sept. 19, 2008) (citing ISCR Case No. 99-0012 at 3 (App. Bd. Dec. 1, 1999)). The financial considerations security concerns are not fully mitigated under the adjudicative guidelines.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must consider the totality of an applicant’s conduct and all relevant circumstances in light of the nine adjudicative process factors in AG ¶ 2(a).4 The analysis under Guideline F is incorporated in my whole- person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

Applicant’s 20 years of U.S. military service certainly weigh in his favor. On his retirement, he continued to contribute to the Nation’s defense by working in the defense industry. He provided a home for his grandson for about 15 years and continues to provide financially for his grandson and stepdaughter, even at considerable cost to his own credit. Yet, by his own admission, he has trouble managing his personal finances. He has accumulated only $270 in personal savings despite trying to save money. Bankruptcy records show that with his spouse’s Social Security disability and his retirement income, he earned $90,060 in 2011. His present take-home pay from his employment and military retirement totals about $5,700 per month. Even with $1,000 per month going to his stepdaughter, his income appears to be more than sufficient to cover his delinquent federal taxes without garnishment. It is particularly difficult to understand why Applicant would not complete the debtor education required for a bankruptcy discharge, especially when he was reminded of the requirement by his bankruptcy attorney.

A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of the evidence to determine if a nexus exists between established facts and a legitimate security concern. It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or renewal of a security clearance. See Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990). Applicant has not shown the good judgment that must be demanded of persons with access to classified information. In the last two years, he has not been proactive about resolving debts that he is legally liable to repay. After considering all the facts and circumstances, it is not clearly consistent with the national interest to continue his security clearance eligibility at this time.

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: For Applicant Against Applicant5 Subparagraph 1.d: Subparagraph 1.e: Against Applicant Subparagraph 1.f: For Applicant Subparagraph 1.g: Against Applicant Subparagraph 1.h: For Applicant Subparagraph 1.i: For 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 continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________ Elizabeth M. Matchinski Administrative Judge

FOOTNOTES

1 By filing a Chapter 13 petition, Applicant could stop foreclosure proceedings, but he was required to make all mortgage payments that came due during the Chapter 13 plan on time. 2 Available credit reports (GEs 3-5) show two separate listing with the creditor: as an account paid in October 2010 after it was charged off, and as an account opened in October 2010 with a $131 balance in collection. It is unclear whether this was a separate account or collection fees from the charged-off account. There is no evidence that Applicant owed two separate balances to the creditor as of 2012, so the debt listed on his bankruptcy is likely the debt in SOR ¶ 1.c. Concerning other debts in the SOR, Department Counsel stipulated at the hearing that the debts in SOR ¶¶ 1.hand 1.i were paid in the bankruptcy. (Tr. 84.)

3 Under current bankruptcy law, Applicant was required to complete credit counseling before filing and to complete an approved course in financial management (debtor education) after his petition has been filed, usually within 60 days after the last payment in a Chapter 13 case. Absent a discharge, he remains responsible for the debts that have not been paid. As noted in his bankruptcy records (GE 2), Applicant could move to reopen his case to allow for the filing of the Financial Management Course Certificate on payment of the applicable fee. 4 The factors under AG ¶ 2(a) are as follows:

(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. 5 A Chapter 13 bankruptcy filing is a legal means to resolve debts. A finding against Applicant is nonetheless returned against Applicant because it was dismissed without a discharge for failure to complete the required debtor education.