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ISCR Case 15-07050.h2 — CASE

ISCR Case 15-07050.h2denied

Case Headnote

ISCR Case No. 15-07050.h2

deniedJun 27, 2017· Hon. Matthew E. Malone· hearing

Summary

A defense contractor employee was denied a U.S. security clearance under Guideline F, Financial Considerations, due to unresolved delinquent debts. The Statement of Reasons cited two instances of unresolved delinquent debts, raising Disqualifying Condition F.3.

Despite presenting commendatory letters and additional testimony, the applicant failed to sufficiently mitigate the financial concerns. The judge found that the applicant had the means to resolve the delinquent debts but had not done so. While Mitigating Conditions F.2 and F.3 were considered, they were not applied to overcome the outstanding issues.

Ultimately, the judge determined that the commendatory letters were insufficient to address the financial concerns, emphasizing the necessity of timely debt resolution to protect national interests. Doubts regarding the applicant's suitability for access to classified information were resolved against the applicant, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant failed to resolve delinquent debts despite having the means to do so.
The applicant's commendatory letters were deemed insufficient to mitigate financial concerns.
The judge concluded that doubts about the applicant's suitability for access to classified information must be resolved against him.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge found that the applicant's financial issues were not adequately addressed.
F.3rejectedThe Person Has Received or Is Receiving Counseling for the ProblemNo evidence of effective financial counseling was presented.

Key Rule Quoted

“A security clearance decision is intended only to resolve whether it is clearly consistent with the national interest for an applicant to either receive or continue to have access to classified information.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedMar 9, 2016
Answer filed—
Hearing heldNov 15, 2016Parties appeared as scheduled.
Decision dateJun 27, 2017Decision issued on remand.

Cite For

Insufficient Mitigation of Financial Issues Under Guideline F
Importance of Timely Addressing Financial Obligations
Impact of Commendatory Letters on Financial 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 unresolved delinquent debts, which raised security concerns under Guideline F. The applicant's request for a security clearance was denied due to insufficient mitigation of these financial issues.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant has unresolved delinquent debts.	Against Applicant	Unspecified Financial	Unknown	—	—	—
1.b	Applicant has unresolved delinquent debts.	Against Applicant	Unspecified Financial	Unknown	—	—	—

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: ) ) ) [NAME REDACTED] ) ISCR Case No. 15-07050 ) ) ) Applicant for Security Clearance

For Government: Ross Hyams, Esq., Department Counsel For Applicant: Ryan C. Nerney, Esq.

06/27/2017 ____________________

Remand Decision ____________________

MALONE, Matthew E., Administrative Judge:

Available information, including information considered on remand, is not sufficient to mitigate the security concerns about Applicant’s unresolved delinquent debts. Applicant’s request for a security clearance is denied.

STATEMENT OF CASE

On October 18, 2012, Applicant submitted an Electronic Questionnaire for Investigations Processing (EQIP) to obtain or renew a security clearance required for his employment with a defense contractor. Based on the results of the ensuing background investigation, Department of Defense (DOD) adjudicators could not determine that it is clearly consistent with the national interest for Applicant to have a security clearance.1

On March 9, 2016, DOD issued a Statement of Reasons (SOR) alleging facts which raise security concerns addressed under the adjudicative guideline for financial considerations (Guideline F). Applicant timely responded to the SOR (Answer) and requested a hearing.

The case was assigned to me on September 26, 2016, and I convened a hearing in this matter on November 15, 2016. The parties appeared as scheduled. Department Counsel presented Government Exhibits (Gx.) 1 - 4. Applicant testified in his own behalf and submitted Applicant’s Exhibits (Ax.) A - C. All exhibits were admitted without objection. One witness also testified for Applicant. The record closed on November 15, 2016. A transcript of the hearing (Tr.) was received on November 22, 2016.

On January 31, 2017, Applicant submitted additional information and asked that I consider it in making my decision. In response to my inquiry, Department Counsel waived objection to Applicant’s information and I agreed to consider Applicant’s post- hearing submissions.

On March 17, 2017, I issued a decision in which I concluded that it was not clearly consistent with the national interest for Applicant to have access to classified information. Through an inadvertent oversight, I did not review and consider Applicant’s post-hearing submissions in reaching my initial decision. Applicant subsequently retained counsel and appealed, correctly claiming I had not identified Applicant’s post- hearing submissions in my decision and that I had not provided them in the case file along with the information presented at hearing. Applicant’s post-hearing submissions are identified and marked as follows:

- Ax. D: a single-page statement by Applicant, dated January 31, 2017, in which he provides new testimony about one of the debts at issue in the SOR and about his loss of employment in 2011;

- Ax. E: an excerpt from the summary of his December 6, 2012 subject interview;

- Ax. F: an April 7, 2005 letter of appreciation from a general officer to Applicant regarding Applicant’s performance in support of the general’s organization;

- Ax. G: a December 12, 2002 letter of commendation to Applicant from a senior military officer; and

- Ax. H: an undated Employee of the Year Award for Applicant.

FINDINGS OF FACT

My findings of fact in the original decision are incorporated herein by reference and remain unchanged by the information in Ax. D – H. The only proffer of note is Applicant’s claim in Ax. D regarding the information about his 2011 loss of employment highlighted in Ax. E. I do not accept Appellant’s characterization that Ax. E is conclusive of that issue because the “matter was later investigated by the Office of Personnel Management (OPM).” The highlighted text is simply the investigator’s recordation of what Appellant had to say about the matter during his interview, not the result of an OPM investigation into his job termination.

POLICIES

Each security clearance decision must be a fair, impartial, and commonsense determination based on examination of all available relevant and material information,2 and consideration of the pertinent criteria and adjudication policy in the adjudicative guidelines (AG). Decisions must also reflect consideration of the factors listed in ¶ 2(d) of the guidelines. Commonly referred to as the “whole-person” concept, those factors are:

(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.

The presence or absence of a disqualifying or mitigating condition is not determinative of a conclusion for or against an applicant. However, specific applicable guidelines should be followed whenever a case can be measured against them as they represent policy guidance governing the grant or denial of access to classified information.

A security clearance decision is intended only to resolve whether it is clearly consistent with the national interest3 for an applicant to either receive or continue to have access to classified information. The Government bears the initial burden of producing admissible information on which it based the preliminary decision to deny or revoke a security clearance for an applicant. Additionally, the Government must be able to prove controverted facts alleged in the SOR. If the Government meets its burden, it then falls to the applicant to refute, extenuate or mitigate the Government’s case. Because no one has a “right” to a security clearance, an applicant bears a heavy burden of persuasion.4 A person who has access to classified information enters into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability and trustworthiness of one who will protect the national interests as his or her own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government.5

ANALYSIS

The adjudicative guidelines (AG) originally applied in this case were implemented by the Department of Defense on September 1, 2006. On December 10, 2016, the AG were amended and reissued to be effective for all decisions on or after June 8, 2017. On remand, I have considered and applied the new AG regarding. Nothing therein warrants a different decision.

I also have evaluated this record in the context of the whole-person factors listed in AG ¶ 2(d). Applicant’s new information consisting of commendatory letters from more than ten years ago is not sufficient to overcome the adverse financial information in this case. On remand, I still conclude that Applicant’s failure to timely address his financial obligations despite having the means to do so underscores the doubts about his suitability for access to classified information that have been raised by the Government’s information. Because protection of the national interest is the principal focus of these adjudications, those doubts must be resolved against the Applicant.

FORMAL FINDINGS

Formal findings 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 and 1.b: Against Applicant

CONCLUSION

In light of all of the foregoing, it is not clearly consistent with the national interest for Applicant to have access to classified information. Applicant’s request for a security clearance is denied.

MATTHEW E. MALONE Administrative Judge

FOOTNOTES

1 Required by Executive Order 10865, as amended, and by DOD Directive 5220.6 (Directive), as amended. 2 See Directive. 6.3. 3 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 4 See Egan, 484 U.S. at 528, 531. 5 See Egan; AG ¶ 2(b).