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ISCR 15-07994.h1: Guideline F security clearance hearing, granted (2017) · CASE

ISCR Case 15-07994.h1granted

Case headnote

ISCR Case No. 15-07994.h1

grantedJun 20, 2017· Hon. Francisco Mendez· hearing

Summary

This case concerns a 37-year-old disabled veteran who sought to retain his security clearance despite past financial issues under Guideline F (Financial Considerations). The Statement of Reasons alleged that the applicant fell behind on court-ordered child support for children from a 2006 divorce. On his 2014 security clearance application, he estimated $5,000 in arrears, though he later reported that State A claimed he owed $50,000 in past-due child support. Disqualifying conditions under AG ¶ 19(a) and AG ¶ 19(c) were raised.

The applicant provided substantial documentation to mitigate these concerns. He demonstrated clear records of child support payments made both during and after his military service. He is currently making child support payments through a state agency, reflecting responsible financial behavior. Additionally, his credit reports showed no other delinquent accounts.

The judge found that the applicant had successfully mitigated the security concerns related to his financial history, despite periods of unemployment that contributed to his difficulties. Consequently, his security clearance was GRANTED.

Why the applicant prevailed

Applicant provided clear documentation of child support payments made during and after military service.
He is now making child support payments through a state agency, demonstrating responsible financial behavior.
No other delinquent accounts were reflected in his credit reports.

Conditions referenced

Disqualifying

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

Mitigating

AG ¶ 20(a)appliedThe Behavior Happened so Long Ago, Was so Infrequent, or Occurred Under Such Circumstances That It Is Unlikely to Recur
AG ¶ 20(b)appliedConditions That Resulted in the Financial Problem Were Largely Beyond the Person's Control
AG ¶ 20(d)appliedThe Individual Initiated and Is Adhering to a Good-faith Effort to Repay Overdue Creditors
AG ¶ 20(e)appliedThe Individual Has a Reasonable Basis to Dispute the Legitimacy of the Past-due Debt

Key rule quoted

“AG ¶ 2(b) - In deciding a case, a judge must resolve any doubt raised by the evidence in favor of the national security.”

Procedural posture

SOR issuedFeb 10, 2016
Answer filed—
Hearing held—Determination on the administrative record.
Decision dateJun 20, 2017

Cite for

Mitigation of Financial Issues Under Guideline F
Importance of Providing Documentation for Child Support Payments
Consideration of Past Financial Difficulties in Light of Current Compliance

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Held a clearance before: Yes: “Applicant, 37, is applying to retain a security clearance that he was initially granted while serving in the U.S. military.”
Delinquent debt cited: $5,000 (on a payment plan): “He estimated on the application that he was about $5,000 in arrears on his child support.”

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant had past financial issues related to child support but presented sufficient evidence to mitigate the security concerns. The applicant's current financial situation and efforts to resolve past debts led to a favorable decision for the applicant.

The sub-allegation breakdown is part of the Professional plan. See what it includes.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation

Descriptive standardized rendering of a decided public case. 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: ) ) REDACTED ) ISCR Case No. 15-07994 ) ) Applicant for Security Clearance

For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se

06/20/2017 ______________

STATEMENT OF CASE

______________

MENDEZ, Francisco, Administrative Judge:

Applicant presented sufficient evidence to mitigate security concerns raised by his past financial problems. Clearance is granted.

Statement of the Case

On February 10, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) sent Applicant a Statement of Reasons (SOR) alleging security concerns under the financial considerations guideline.1 Applicant answered the SOR and requested a determination on the administrative (written) record (Answer).

On June 23, 2016, Department Counsel prepared her written case, known as a file of relevant material (FORM) and sent it to Applicant. With the FORM, Department Counsel forwarded to Applicant nine exhibits for admission into the record. Applicant submitted a response to the FORM (Response). The exhibits accompanying the FORM and the documents Applicant submitted with his Answer and Response are admitted into the record.2 On May 9, 2017, I was assigned the case for decision.3

FINDINGS OF FACT

Applicant, 37, is applying to retain a security clearance that he was initially granted while serving in the U.S. military. Currently, he is working overseas supporting the U.S. military as a federal contractor.

From 2003 to 2011, Applicant was on active duty in the U.S. military. He is a disabled veteran. After receiving an honorable discharge from the military in September 2011, Applicant was unemployed for about six months.

In March 2012, Applicant was hired by a federal contractor to work overseas. That job assignment ended in January 2013. He was again unemployed until October 2013, when he was hired by his current employer.

Applicant fell behind on his court-ordered child support for the children from his first marriage – a marriage that ended in divorce in 2006. Applicant reported his delinquent child support on his 2014 security clearance application and discussed it during his clearance interview. He estimated on the application that he was about $5,000 in arrears on his child support. He told the security clearance investigator that State A, where his former spouse had moved with their children after the divorce, claimed he owed $50,000 in past-due child support.

Applicant also told the clearance investigator that he was in the process of collecting the necessary paperwork to show State A how much he paid his ex-wife in child support since their divorce. He did not pay his child support through the court or a state agency. Instead, while in the military, he paid his child support through a voluntary allotment from his pay. After leaving the military, Applicant sent his former spouse monthly checks.

Applicant, with his Answer, submitted over 115 pages of documents showing that, while in the military, he had a voluntary allotment taken out of his pay in the exact amount that he was ordered to pay in child support ($680 a month). (See Answer, Leave and Earning Statements.) He also provided copies of the paid checks made out to his former spouse for child support. With his Response, Applicant provided documentation showing that he is now making his monthly child support payments through a state agency. His credit reports do not reflect any other delinquent account. Law & Policies

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Individuals are eligible for access to classified information “only upon a finding that it is clearly consistent with the national interest” to authorize such access. E.O. 10865 § 2; SEAD-4, ¶ E.4.

When evaluating an applicant’s eligibility for a security clearance, an administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations, the guidelines list potentially disqualifying and mitigating conditions. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies the guidelines in a commonsense manner, considering all available and reliable information, in arriving at a fair and impartial decision. AG ¶ 2.

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

Administrative Judges make certain that applicants: (a) receive fair notice of the issues, (b) have a reasonable opportunity to address those issues, and (c) are not subjected to unfair surprise. Directive, ¶ E3.1.10; ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014). In deciding a case, a judge must resolve any doubt raised by the evidence in favor of the national security. AG ¶ 2(b). See also SEAD-4, ¶ E.4. Moreover, the Supreme Court has held that officials making “security clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

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. 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 an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

ANALYSIS

Guideline F, Financial Considerations

Applicant was unable to pay his court-ordered child support while unemployed and accrued a past-due balance. This situation raises the Guideline F security concern, which is explained at 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. . . .

Guideline F is not limited to a consideration of whether a person with financial issues might be tempted to compromise classified information or engage in other illegality to pay their debts. It also addresses the extent to which the circumstances giving rise to delinquent debt cast doubt upon a person’s judgment, self-control, and other qualities essential to protecting classified information.4

In assessing Applicant’s case, I considered the following pertinent disqualifying and mitigating conditions:

AG ¶ 19(a): inability to satisfy debts;

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

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, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances;

AG ¶ 20(d): the individual initiated and is adhering to 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 was unable to pay his court-ordered child support, which was established while he was still in the military and receiving a reliable paycheck on the first and the fifteenth of every month. After separating from the military, Applicant experienced two periods of unemployment that left him unable to pay his child support. He apparently did not apply for a modification, which when coupled with his equally unwise decision to not setup a child support account with the state, left him in his current unenviable predicament. However, these past poor personal decisions do not raise a concern about his ability to handle and safeguard classified information. Applicant addressed the concern raised by the SOR allegation. Notably, he presented clear and unambiguous documentary evidence to support his position that he has been paying and is currently paying his child support. His credit reports do not reflect any other delinquent account. In short, Applicant is resolving the issue with his child support account and his current financial situation does not raise a security concern. AG ¶¶ 20(a), 20(b), 20(d), and 20(e) apply.

After a complete and thorough review of the record evidence, including considering the whole-person factors set forth in AG ¶ 2, I find that Applicant met his heavy burden of proof and persuasion in mitigating the security concerns raised by the SOR allegation. Furthermore, he established his eligibility for continued 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 (Financial Considerations): FOR APPLICANT

Subparagraph 1.a: For Applicant

CONCLUSION

In light of the circumstances presented by the record in this case, it is clearly consistent with the national interest to continue Applicant’s eligibility for access to classified information. Applicant’s request for a security clearance is granted.

____________________ Francisco Mendez Administrative Judge

FOOTNOTES

1 The CAF took this action under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended, and DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). 2 Administrative documents, including confirmation of Applicant’s continuing sponsorship for a clearance, were collectively marked and attached to the record as Appellate Exhibit I.

3 On December 10, 2016, the Director of National Intelligence issued Security Executive Agent Directive 4 (SEAD-4), revising the Adjudicative Guidelines. The revised adjudicative guidelines are applicable to all security clearance decisions issued on or after June 8, 2017. Accordingly, I have applied the revised adjudicative guidelines (hereinafter “AG”). ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DoD policy and standards). 4 ISCR Case No. 11-05365 at 3 (App. Bd. May. 1, 2012).