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ISCR Case 15-05226.h1 — CASE

ISCR Case 15-05226.h1denied

Case Headnote

ISCR Case No. 15-05226.h1

deniedOct 11, 2017· Hon. Gregg A. Cervi· hearing

Summary

A 40-year-old aviation maintenance technician was denied a security clearance under Guideline F (Financial Considerations) due to 11 delinquent debts totaling approximately $27,813. The Statement of Reasons detailed these financial issues, including a 2015 salary garnishment for $21,995, delinquent medical debts, and various credit card collection accounts. These conditions raised concerns under Adjudicative Guidelines paragraphs 19(a), 19(b), and 19(c).

Despite the applicant admitting to the debts and expressing an intent to take responsibility, the denial was based on several factors. The applicant failed to provide sufficient evidence of efforts to resolve the debts or demonstrate his current financial status.

Furthermore, the delinquent debts were considered recent and not incurred under circumstances that would make recurrence unlikely. The applicant also did not demonstrate a good-faith effort to repay overdue creditors or seek financial counseling, ultimately leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant failed to provide evidence showing efforts to resolve his debts or his current financial status.
Delinquent debts were recent and not incurred under circumstances making them unlikely to recur.
The applicant did not demonstrate a good-faith effort to repay overdue creditors or seek financial counseling.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability to Satisfy Debts
AG ¶ 19(b)raisedUnwillingness to Satisfy Debts Regardless of the Ability to Do So
AG ¶ 19(c)raisedA History of Not Meeting Financial Obligations

Key Rule Quoted

“[N]o one has a ‘right’ to a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 29, 2016
Answer filedApr 12, 2016Additional answer submitted on October 27, 2016.
Hearing held—Decided on the written record.
Decision dateOct 11, 2017

Cite For

Failure to Provide Evidence of Financial Responsibility Under Guideline F
Insufficient Efforts to Resolve Delinquent Debts
Criteria for Evaluating Financial Considerations in Security Clearance Cases

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 that the applicant had multiple delinquent debts totaling approximately $27,813, including a significant garnishment from his salary. The applicant's failure to adequately address these debts and provide evidence of financial responsibility led to a denial of his security clearance under Guideline F.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Delinquent debts totaling about $27,813, including a 2015 garnishment from his current salary for $21,995. $27,913	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.b	Delinquent medical debts.	Against Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.c	Various credit card collection accounts.	Against Applicant	Credit Card Debt	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.d–1.k	8 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant			—	—	—

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. 15-05226 ) Applicant for Security Clearance )

For Government: Aubrey M. DeAngelis, Esq., Department Counsel For Applicant: Pro se

10/11/2017 ______________

STATEMENT OF CASE

______________

CERVI, Gregg A., Administrative Judge

This case involves security concerns raised under Guideline F (Financial Considerations). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on May 7, 2015. On February 29, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline F.1 Applicant answered the SOR2 and elected to have the case decided on the written record in lieu of a hearing. The Government’s written brief with supporting documents, known as the File of Relevant Material (FORM), was submitted by Department Counsel, and is undated.

A complete copy of the FORM was provided to Applicant on December 19, 2016, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on January 4, 2017. He did not submit a response to the FORM. The Government’s exhibits included in the FORM (Items 1 to 7) are admitted into evidence. The case was assigned to me on October 1, 2017.

FINDINGS OF FACT

Applicant is a 40-year-old aviation maintenance technician employed by a defense contractor since 2008. He attended technical school and received an airframe and power plant license in 2003, and has been employed in the field since graduating. He served in the Army National Guard from 1994 to 2005; three years in the active reserve, and five years in the inactive reserve. He was married in September 2007 and has two children, ages 10 and 4 years old. He has held a DOD security clearance since 2008.3

The SOR alleges 11 delinquent debts, totaling about $27,813, including a 2015 garnishment from his current salary for $21,995, five delinquent medical debts, and various credit card collection accounts. In his answer to the SOR, Applicant admitted the SOR allegations and claimed he was paying or making payment arrangements on his debts. All of the SOR allegations are supported by sufficient evidence provided by the Government.

Applicant stated in his answer to the SOR, that his spouse had traditionally paid the household bills, but that his wife had “other plans that led him to believe all was good.” He asserts that he should have taken responsibility for his finances. He stated his intent to get ahead of his debts and to take personal responsibility. He provided a payment receipt on a student loan debt, dated October 3, 2016, for $183.18. Although he reported delinquencies in student loan debts in his SCA, and his student loans may be the subject of his garnishment order, he did not provide evidence showing their current status, balance, established payment plans, or other information explaining the garnishment order. Additionally, Applicant did not provide documentary evidence to show the status of his SOR debts, efforts to resolve them, or other actions as appropriate. Since Applicant elected to have this case decided on the written record in lieu of a hearing, I was unable to further inquire into these allegations, or evaluate his demeanor or credibility in response to questions about the status of his debts and current finances.

Law and Policies

The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, effective on June 8, 2017. My ultimate decision would be the same under either set of adjudicative guidelines.

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

National security eligibility is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider a person’s stability, trustworthiness, reliability, discretion, character, honesty, and judgment. AG ¶ 1(b).

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

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 the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 1(d).

ANALYSIS

Financial Considerations

The security 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. . . .

The relevant disqualifying conditions under AG ¶ 19 include:

(a) inability to satisfy debts;

(b) unwillingness to satisfy debts regardless of the ability to do so; and

Applicant’s admissions and the documentary evidence supporting the SOR allegations are sufficient to establish the disqualifying conditions.

The following mitigating conditions under AG ¶ 20 are potentially relevant:

(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;

(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;

(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;

(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; and

(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.

Applicant’s delinquent debts are recent and there is insufficient evidence to determine that they were incurred under circumstances making them unlikely to recur. Applicant has not carried his burden of proof to show that he has adequately addressed his debts or that they were incurred under conditions outside of his control. He has been employed since 2003, and has worked full-time with his current employer since 2008.

Applicant’s disregard for resolving his debts raises serious questions about his judgment and willingness to comply with rules and regulations. He presented no evidence showing efforts to resolve his debts, legitimate disputes, his current financial status, or information that he sought financial counseling or other assistance to address his debts. He has not shown that his financial situation is under control. No mitigating condition is applicable.

WHOLE PERSON CONCEPT

Under AG ¶¶ 2(a), 2(c), and 2(d), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the guidelines and the 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(d). Although adverse information concerning a single criterion may not be sufficient for an unfavorable eligibility determination, the individual may be found ineligible if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or unstable behavior. AG ¶ 2(e).

I considered all of the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my findings of fact and comments under Guideline F in my whole-person analysis. Applicant’s delinquencies remain an ongoing concern. He has not shown sufficient effort to resolve his debts.

Accordingly, I conclude he has not carried his burden of showing that it is clearly consistent with the national security interests of the United States to grant him eligibility for access to classified information.

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

Subparagraphs 1.a – 1.k: Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

_______________________ Gregg A. Cervi Administrative Judge

FOOTNOTES

1 The DOD CAF acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. 2 Applicant partially answered the SOR on April 12, 2016. Applicant then sent an additional answer, annotating SOR ¶¶ 1.d-1.k, by separate cover. Department Counsel contacted Applicant by e-mail on October 13, 2016, requesting a complete answer to SOR ¶¶ 1.a–1.c, and provided an opportunity to submit additional evidence in mitigation. Applicant answered the e-mail on October 27, 2016, and provided a student loan payment receipt, dated October 3, 2016.

3 Item 3.