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ISCR Case 15-07795.h1 — CASE

ISCR Case 15-07795.h1denied

Case Headnote

ISCR Case No. 15-07795.h1

deniedFeb 15, 2017· Hon. Arthur E. Marshall, Jr.· hearing

Summary

A 52-year-old defense contractor employee was denied eligibility for a public trust position due to financial considerations under Guideline F. The Statement of Reasons cited three delinquent student loans totaling approximately $40,000, with individual balances of about $15,090, $17,443, and $10,910. These allegations raised disqualifying conditions under Adjudicative Guidelines (AG) ¶ 19(a) and ¶ 19(c).

Despite the applicant's long tenure and positive work performance, the judge found insufficient evidence to mitigate the financial concerns. While mitigating conditions under AG ¶ 20(a), (b), (c), (d), and (e) were considered, they were not deemed sufficient.

The denial was based on the applicant's acknowledgment of the $40,000 in delinquent student loans and her failure to make payments. Her financial difficulties were noted to be exacerbated by significant medical expenses and her husband's limited retirement income. Ultimately, the applicant submitted insufficient evidence to resolve the trustworthiness concerns related to her financial situation.

Why the Applicant Was Denied

Applicant submitted insufficient evidence to mitigate financial considerations trustworthiness concerns.
The applicant acknowledged $40,000 in delinquent student loans and failed to make payments on them.
The applicant's financial difficulties were exacerbated by significant medical expenses and her husband's limited retirement income.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 20(b)appliedConditions Largely Beyond the Person's ControlApplicant's medical issues and limited income contributed to her inability to pay debts.
AG ¶ 20(a)rejectedBehavior Happened Long Ago or Infrequently
AG ¶ 20(c)rejectedReceived Counseling for the Problem
AG ¶ 20(d)rejectedGood-faith Effort to Repay Overdue Creditors
AG ¶ 20(e)rejectedReasonable Basis to Dispute Legitimacy of Debt

Key Rule Quoted

“A person who seeks a public trust position enters into a fiduciary relationship with the Government predicated upon trust and confidence that transcends normal duty hours.”

Procedural Posture

SOR issuedMar 11, 2016
Answer filed—Applicant admitted allegations.
Hearing heldJan 31, 2017Hearing convened as scheduled.
Decision dateFeb 15, 2017

Cite For

Insufficient Evidence to Mitigate Financial Considerations Under Guideline F
Impact of Medical Expenses on Financial Obligations
Consideration of Whole-person Concept in Financial 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 against the applicant on all financial allegations under Guideline F, primarily due to approximately $40,000 in delinquent student loans. Despite the applicant's claims of financial hardship and medical expenses, the judge determined that the applicant failed to mitigate the financial concerns raised by the delinquent debts.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant has a delinquent student loan with a balance of approximately $15,090. $15,090	Against Applicant	Student Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	Applicant has a delinquent student loan with a balance of approximately $17,443. $17,443	Against Applicant	Student Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.c	Applicant has a delinquent student loan with a balance of approximately $10,910. $10,910	Against Applicant	Student Loan Debt	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: ) ) ) ADP Case No. 15-07795 ) Applicant for Public Trust Position )

For Government: Carroll Connelley, Esquire For Applicant: Pro se 02/15/2017 ______________

STATEMENT OF CASE

______________

MARSHALL, Jr., Arthur E., Administrative Judge:

Applicant submitted insufficient evidence to mitigate Guideline F trustworthiness concerns. Applicant’s eligibility to occupy a position of trust is denied.

Statement of the Case

On March 11, 2016, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing concerns under Guideline F (Financial Considerations) regarding her eligibility to occupy an automated data processing (ADP) position designated ADP-I/II/III. The action was taken under 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 DOD on September 1, 2006. Applicant timely responded to the SOR, admitting the three allegations raised concerning delinquent student loans. She also requested a hearing before a Defense Office of Hearings and Appeals (DOHA) Administrative Judge.

On October 13, 2016, I was assigned this case. On January 11, 2017, a notice of hearing was issued setting a hearing for January 31, 2017. The hearing was convened as scheduled. The Government offered five exhibits (Exs.), which were accepted into the record without objection as Exs. 1-5. Applicant testified and offered four exhibits, which were accepted into the record without objection as Exs. A-D. The transcript (Tr.) of the proceeding was received on February 7, 2017, and the record was closed. Based on my review of the file and submissions, Applicant failed to mitigate financial considerations trustworthiness concerns.

FINDINGS OF FACT

Applicant is a 52-year-old employee of a defense contractor. She has served in the same position for 11 years. Applicant is married and has one adult child. She earned an associate’s degree in business. Two of the delinquent student loans at issue were applied toward her child’s college education.

After completing her associate’s degree, Applicant went without a job for some time before starting employment in low-paying “dinky jobs” in her economically depressed region. (Tr. 11) With her certification for a specialized type of mechanics work, she could earn more income elsewhere, but she has not relocated. She began her current position in early 2006.

Presently, Applicant earns a net gross income of about $17,000 a year. (Tr. 12; Ex. D) She takes home about $750 every two weeks. She has had considerable medical expenses, expending close to $25,000 for medical care last year related to diabetes management and both liver and kidney issues.1 (Tr. 25) She noted that “every night there’s a company that calls” regarding her debts. (Tr. 13)

A welder by profession, Applicant’s husband never completed high school. His employment was intermittent and he recently retired. In retirement, Applicant’s husband generates an income of about $1,000 to $1,140 a month. He retired early and is not presently receiving all of his retirement benefits. This has notably reduced the couple’s household income. (Tr. 23) Because of the couple’s personal employment histories and experiences, assuring that their child received a college education was a priority.

Applicant’s child graduated college with honors about five-and-one-half years ago.2 Applicant signed on the three delinquent student loans at issue, now with balances of approximately $15,090, $17,443, and $10,910.3 Applicant believes the third loan cited relates back to the early 1980sand was applied toward her own collegiate program. (Tr. 17) Applicant initially made payments on her own loan, then received a deferment when she lost a job in the 1980s. It has remained unaddressed since that time. (Tr. 18) No payments have been made on the loans obtained for her child’s education.

Although she has contacted the student loan lender to negotiate payment arrangements, Applicant stated that the lender will not be sufficiently flexible for her to address the debts. (Tr. 13) She cannot afford the $600 to $800 a month she stated the lender requires for payment. (Tr. 21) Applicant noted: “(w)e just aren’t making enough money to pay that loan and they’re not willing to be flexible. They want what they want, and I mean, I can understand that, but if I don’t have it, how do I give it to you?” (Tr. 13) Applicant’s child, now employed and earning approximately $50,000 a year, has not volunteered to assume responsibility for any of the debts at issue because she is making payments on two other student loans and lives in an expensive region. (Tr. 19-20) Consequently, no progress has been made on the loans at issue.

Applicant has performed successfully in her work position. She has never been reported for any errors or performance issues. Her direct supervisor writes that she is a valued employee.(Ex. A) She has positive letters of recommendation from co-workers. (Ex. B) She is noted for her positive attitude, good nature, and efficiency. She is timely on her mortgage ($215/month) and automobile loan ($142/month) payments. (Ex. C) She is also timely on her approximately $800-$1,000 a month in regular monthly expenses and utilities. (Tr. 27) She has one credit card with a balance of about $3,000. Her savings account has a balance of about $5. She is current on her federal and state income taxes. Noting the tight job market in her region, Applicant summarized her situation thusly: “I understand that I don’t make enough money to pay the debt. That’s why the debt is not paid. I’ve worked for this company for 11 years with clearances. I’ve had no issues. I’ve had no write-ups. I’ve had nothing that I’ve done wrong.” (Tr. 32)

POLICIES

When evaluating an applicant’s suitability for a position of trust, the administrative judge must consider the adjudicative guidelines. The adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to protected 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 overarching adjudicative goal is a fair, impartial, and commonsense decision. Under 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 sensitive information is the paramount consideration.

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

A person who seeks a public trust position enters into a fiduciary relationship with the Government predicated upon trust and confidence that transcends normal duty hours. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard information.

ANALYSIS

Guideline F, Financial Considerations

Under Guideline F, AG ¶ 18 sets forth the applicable trustworthiness concern: 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.

Here, the Government introduced credible evidence showing Applicant has about $40,000 in delinquent student loans. Such debt raises financial considerations disqualifying conditions:

AG ¶ 19(a) inability or unwillingness to satisfy debts, and

AG ¶ 19(c) a history of not meeting financial obligations.

Five conditions could mitigate these financial concerns:

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;

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;

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;

AG ¶ 20(d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; and

AG ¶ 20(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 acknowledges that she has $40,000 or more in delinquent student loans. She noted that she made some payments on one debt in the 1980s, and concedes no payments were subsequently made on that loan or on the two newer student loans obtained for her child’s college education. Last year, Applicant expended more money on medical care than she earned. Her husband’s retirement income is presently limited. There is no evidence that Applicant had received financial counseling. Applicant is willing to make payments toward these student loans, but concedes she does not have the money to pay the minimum payments required by her lenders. Under these circumstances, although AG ¶ 20(b) may apply in part due to Applicant’s medical issues and expenses, no other available financial considerations mitigating conditions apply.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a position of trust by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the adjudicative process factors listed at AG ¶ 2(a). Under AG ¶ 2(c), the final determination of whether to grant eligibility for a position of trust must be an overall commonsense judgment based on 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 incorporate my comments under the guideline at issue in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment.

Applicant is a 52-year-old employee of a defense contractor who has worked for the same employer for 11 years. She earned an associate’s degree and is certified in a specialized mechanics field. She notes that the economy in her region is stagnant, and that the local job market is tight. She is married and has one grown daughter. Due to their own professional experiences, Applicant and her husband took great strides to make sure their child received a college education. However, several years after that child graduated, two of the loans obtained for that child, and a third loan dating back to Applicant’s own college education in the 1980s, remain unaddressed and delinquent.

Applicant’s inability to make payments on the student loans at issue is caused not through a high lifestyle, sloth, or fiscal mismanagement. Rather, Applicant, who has notable medical issues and related bills, lacks the income to meet the required minimum payments on the delinquent student loans at issue. With her husband’s recent retirement and her child’s inability to contribute financially to the cause, Applicant’s desire to address the student loans is further hampered. While the possession of debt is not a bar to maintaining an ADP position, the perpetuation of delinquent debt poses serious concerns. Although Applicant appears to be a respected employee and colleague with a good work record, the lack of action on the student loans at issue undermines Applicant’s ability to mitigate the financial considerations concerns raised.

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.c: 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 permit Applicant to maintain a public trust position. Eligibility for a public trust position is denied.

_____________________________ Arthur E. Marshall, Jr. Administrative Judge

FOOTNOTES

1 Because of her health issues, Applicant’s monthly income fluctuates due to time off from work. (Tr. 24-25) She does not receive pay for days off for medical reasons. (Tr. 25) 2 Applicant notes that although the SOR alleges approximately $40,000 in delinquent student loan debt, she believes there is approximately $60,000 in such debt outstanding. (Tr. 12) 3 These delinquent student loans are referenced in the SOR at allegations 1.a-1.c, respectively.