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ISCR Case 15-00463.h1 — CASE

ISCR Case 15-00463.h1denied

Case Headnote

ISCR Case No. 15-00463.h1

deniedJun 6, 2017· Hon. Richard A. Cefola· hearing

Summary

A 48-year-old technician was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from significant unresolved debts and a history of inappropriate workplace behavior.

Specifically, the applicant admitted to 16 past-due debts totaling over $10,000, including a mortgage debt and various other obligations ranging from approximately $28 to $3,046. The judge found that the applicant failed to demonstrate responsible behavior in addressing these financial obligations.

Additionally, in November 2015, the applicant was suspended for one week without pay for inappropriate/unprofessional behavior and misuse of IT assets. This incident involved viewing a co-worker’s pay information and subsequently disseminating it to other co-workers. This action indicated questionable judgment and a breach of privacy, contributing to the denial.

Why the Applicant Was Denied

The applicant admitted to multiple past-due debts totaling over $10,000 and failed to take timely action to resolve them.
The applicant's inappropriate behavior included viewing and disseminating a co-worker's pay information, indicating a lack of judgment and trustworthiness.

Conditions Referenced

Disqualifying

F.19(a)raisedInability or Unwillingness to Satisfy Debts
F.19(c)raisedA History of Not Meeting Financial Obligations
E.16(d)raisedCredible Adverse Information That Is Not Explicitly Covered Under Any Other Guideline

Mitigating

F.20(a)rejectedThe Behavior Happened so Long Ago, Was so Infrequent, or Occurred Under Such Circumstances That It Is Unlikely to RecurThe applicant's financial issues are ongoing and have not been resolved.
F.20(b)rejectedConditions That Resulted in the Financial Problem Were Largely Beyond the Person’s ControlWhile the housing market downturn contributed, the applicant had ample time to address his debts.
E.17(a)rejectedPrompt, Good-faith Efforts to Correct the Omission, Concealment, or FalsificationThe applicant did not demonstrate any efforts to mitigate his personal conduct issues.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedApr 7, 2016
Answer filedJun 10, 2016
Hearing heldSep 21, 2016
Decision dateJun 6, 2017

Cite For

Failure to Mitigate Financial Obligations Under Guideline F
Questionable Judgment and Trustworthiness Under Guideline E
Impact of Unresolved Debts on Security Clearance Eligibility

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct allegation under Guideline E. The applicant admitted to inappropriate behavior at work, specifically viewing and disseminating a co-worker's pay information, which raised concerns about his judgment and trustworthiness. The judge concluded that the applicant did not mitigate these concerns, resulting in a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In November of 2015, he was suspended from work for one week without pay for: 1) Inappropriate/Unprofessional Behavior and 2) Misuse of IT assets, as the result of Applicant viewing a co-worker’s pay information and disseminating that information to other co-workers.	Against Applicant	Questionable Judgment General	—	Admitted	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

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, with the majority of debts being unresolved and the applicant showing a lack of responsibility in addressing them. However, one debt was found to be settled in full, leading to a favorable finding for that specific allegation.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	Applicant admits that he is indebted to Creditor A for a past-due debt in the amount of about $139. $139	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.b	Applicant admitted that he was indebted to Creditor B for a past-due debt in the amount of about $849. $849	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.c	Applicant admitted that he was indebted to Creditor C for a past-due debt in the amount of about $279. $279	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.d	Applicant admitted that he was indebted to Creditor D for a past-due debt in the amount of about $408. $408	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.e	Applicant admitted that he was indebted to Creditor E for a past-due debt in the amount of about $2,030. $2,030	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.f	Applicant admits that he is indebted to Creditor F for a past-due debt in the amount of about $940. $940	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.g	Applicant admits that he is indebted to Creditor G for a past-due debt in the amount of about $1,694. $1,694	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.h	Applicant admits that he is indebted to Creditor H for a past-due debt in the amount of about $754. $754	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.i	Applicant admits that he is indebted to Creditor I for a past-due mortgage debt in the amount of about $1,694. $1,694	Against Applicant	Mortgage or Home Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.j	Applicant admits that he is indebted to Creditor J for a past-due debt in the amount of about $1,721. $1,721	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.k	Applicant admits that he is indebted to Creditor K for two past-due debts totaling about $3,046. $3,046	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.l	specific text not stated in this decision	Against Applicant	Unspecified Financial	Unknown	—	—	—
2.m	Applicant admitted that he was indebted to Creditor M for a past-due debt in the amount of about $173. $173	For Applicant	Unspecified Financial	Admitted	—	—	—
2.n	Applicant admits that he is indebted to Creditor N for a past-due debt in the amount of about $503. $503	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.o	Applicant admits that he is indebted to Creditor O for a past-due debt in the amount of about $28. $28	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
2.p	Applicant admits that he is indebted to Creditor P for a past-due debt in the amount of about $227. $227	Against Applicant	Unspecified Financial	Admitted	(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. 15-00463 ) ) Applicant for Security Clearance )

For Government: Andrew Henderson, Esq., Department Counsel For Applicant: Pro Se

June 6, 2017 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On April 7, 2016, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline F, Financial Considerations and Guideline E, Personal Conduct. The action was taken under Executive Order (EO) 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 for cases after September 1, 2006.

Applicant answered the SOR on June 10, 2016, (Answer), and requested a hearing before an administrative judge. The case was assigned to me on August 24, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on August 29, 2016, scheduling the hearing for September 21, 2016. The hearing was convened as scheduled. The Government offered Exhibits (GXs) 1 through 8, which were admitted without objection. Applicant testified; and after the hearing submitted Applicant Exhibit (AppX) A. Department Counsel had no objections to AppX A, which was admitted.1 The record then closed on October 21, 2016. DOHA received the transcript of the hearing (TR) on September 30, 2016.

FINDINGS OF FACT

Applicant admitted all of the SOR allegations regarding Financial Considerations in subparagraphs 2.a.~2.p. He also admitted the SOR allegation as to Personal Conduct in subparagraph 1.a. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is 48 years old. (GX 1 at page 5.) He is a “Technician,” and does not currently hold a security clearance. (TR at page 19 line 4 to page 20 line 17.) He is married and has four children, three of whom are adults, ranging in age from 20–25. (Id.) As I consider Guideline F the more significant of the two alleged, I will address it first.

Guideline F – Financial Considerations

Applicant attributes his financial difficulties to the downturn of the housing market in 2008. (TR at page 37 line 8 to page 39 line 24.) Presently, he and his family live in a rental. (Id.) He has purchased his grown children cars for transportation to and from their colleges. Applicant has chosen not to address any of the 16 alleged past-due debts. (TR at page 37 line 8 to page 39 line 24.)

2.a. Applicant admits that he is indebted to Creditor A for a past-due debt in the amount of about $139. He has not contacted this creditor, and does not plan to do so “until next year,” sometime in 2017. (TR at page 25 line 6 to page 27 line 6.) This allegation is found against Applicant.

2.b. Applicant admitted that he was indebted to Creditor B for a past-due debt in the amount of about $849. He now avers it “is paid off,” but has submitted nothing in support of this averment. (TR at page 27 lines 7–21.) This allegation is found against Applicant.

2.c. Applicant admitted that he was indebted to Creditor C for a past-due debt in the amount of about $279. He now avers that he is now current with this creditor, but has submitted nothing in support of this averment. (TR at page 27 line 24 to page 29 line 16.) This allegation is found against Applicant.

2.d. Applicant admitted that he was indebted to Creditor D for a past-due debt in the amount of about $408. He now avers it is “paid off,” but has submitted nothing in support of this averment. (TR at page 29 lines 17–24.) This allegation is found against Applicant.

1 Applicant’s exhibit was offered without explanation, and relates to five debts, only one of which is alleged by the Government under subparagraph 2.m. of the SOR. 2.e. Applicant admitted that he was indebted to Creditor E for a past-due debt in the amount of about $2,030. He now avers that he has “no idea” what this debt is for, and has no plan to address it. (TR at page 29 line 25 to page 30 line 3.) This allegation is found against Applicant.

2.f. Applicant admits that he is indebted to Creditor F for a past-due debt in the amount of about $940. He has not contacted this creditor, and has no plans to do so. (TR at page 30 lines 11–25.) This allegation is found against Applicant.

2.g. Applicant admits that he is indebted to Creditor G for a past-due debt in the amount of about $1,694. He has not contacted this creditor, and has no plans to do so. (TR at page 31 lines 1–8.) This allegation is found against Applicant.

2.h. Applicant admits that he is indebted to Creditor H for a past-due debt in the amount of about $754. He has not contacted this creditor, and does not plan to do so until “next year,” sometime in 2017. (TR at page 31 line 9 to page 32 line 1.) This allegation is found against Applicant.

2.i. Applicant admits that he is indebted to Creditor I for a past-due mortgage debt in the amount of about $1,694. He has not contacted this creditor, and has no plans to do so. (TR at page 32 line 2 to page 34 line 12.) This allegation is found against Applicant.

2.j. Applicant admits that he is indebted to Creditor J for a past-due debt in the amount of about $1,721. He has not contacted this creditor, and does not plan to do so until “next year,” sometime in 2017. (TR at page 34 lines 15–24.) This allegation is found against Applicant.

2.k. and 2.l. Applicant admits that he is indebted to Creditor K for two past-due debts totaling about $3,046. He has not contacted this creditor, and does not plan to do so until “next year,” sometime in 2017. (TR at page 34 line 25 to page 36 line 6.) Applicant has submitted documentation showing a similar creditor; but with a different original creditor, and with different amounts. (AppX A at pages 3 and 4.) These allegations are found against Applicant.

2.m. Applicant admitted that he was indebted to Creditor M for a past-due debt in the amount of about $173. At his hearing, he averred that he had not contacted this creditor, but it appears to have been “settled in full.” (TR at page 36 lines 7–15, and AppX A at page 5.) This allegation is found for Applicant.

2.n. Applicant admits that he is indebted to Creditor N for a past-due debt in the amount of about $503. He has not contacted this creditor, and has no plans to do so. (TR at page 36 lines 16–20.) This allegation is found against Applicant.

2.o. Applicant admits that he is indebted to Creditor O for a past-due debt in the amount of about $28. He has not contacted this creditor, and has no plans to do so. (TR at page 36 line 21 to page 37 line 2.) This allegation is found against Applicant. 2.p. Applicant admits that he is indebted to Creditor P for a past-due debt in the amount of about $227. He has not contacted this creditor, and has no plans to do so. (TR at page 37 lines 3–7.) This allegation is found against Applicant.

Guideline E – Personal Conduct

1.a. Applicant admits that, in November of 2015, he was suspended from work for one week without pay for: 1) Inappropriate/Unprofessional Behavior and 2) Misuse of IT assets, as the result of Applicant viewing a co-worker’s pay information and disseminating that information to other co-workers. (TR at page 20 line 18 to page 24 line 15, and GXs 7 and 8.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used 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, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2(a), describing the adjudicative process. The administrative judge’s overarching 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 the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable clearance 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 the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse 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 concern for Financial Considerations is set out in AG ¶ 18, as follows:

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.

The guideline notes several conditions that could raise security concern under AG ¶ 19. Two are potentially applicable in this case:

(a) inability or unwillingness to satisfy debts; and

The Government established the disqualifying conditions in AG ¶ 19(a), and 19(c). Further inquiry about the applicability of mitigating conditions is required.

Two Financial Considerations Mitigating Conditions under AG ¶ 20 are potentially applicable:

(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; and

(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.

Applicant has not acted responsibly, or in a timely manner, to attempt to resolve his delinquent debts. Except for subparagraph 2.m., his debts are not current. Applicant’s conduct does not warrant application of AG ¶ 20(a).

Applicant’s debts may have been due, in part, to the crash of the housing market in 2008, but he has had ample time to resolve his debts since then. Further, he failed to demonstrate responsible behavior toward his debts. AG ¶ 20(b) is only partially mitigating.

Guideline E, Personal Conduct

The security concern for the Personal Conduct guideline is set out in AG ¶ 15:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes one condition that could raise a security concern and may be disqualifying under the facts of this case:

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, which when combined with all available information supports a whole-person assessment of questionable judgment . . . This includes but is not limited to consideration of: (1) untrustworthy or unreliable behavior . . . .

Applicant clearly breached the privacy of a co-worker. This behavior indicates questionable judgment and untrustworthiness.

AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

After considering the mitigating conditions outlined above in AG ¶ 17, it is apparent that none of them apply. Applicant has not submitted any documentation as to his good character, such as letters of recommendation or awards and certificates from his place of employment. Thus, he has not provided information in this record to show that he has met his burden of proof to mitigate his personal conduct.

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(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) 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.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines F and E in my whole-person analysis. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has failed to mitigate the Financial Considerations and Personal Conduct security concerns.

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 E: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

Paragraph 2, Guideline F: AGAINST APPLICANT

Subparagraphs 2.a.~2.l: Against Applicant

Subparagraph 2.m.: For Applicant

Subparagraphs 2.n.~2.p: 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 security clearance. Eligibility for access to classified information is denied.

________________________ Richard A. Cefola Administrative Judge