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ISCR Case 15-08017.h1 — CASE

ISCR Case 15-08017.h1denied

Case Headnote

ISCR Case No. 15-08017.h1

deniedMar 28, 2017· Hon. David M. White· hearing

Summary

A 30-year-old healthcare business analyst was denied eligibility for a public trust position due to financial considerations under Guideline F. The applicant faced concerns regarding over $20,000 in unresolved delinquent debts, specifically a $256 utility debt from 2010, a $410 medical debt from 2013, and a charged-off student loan debt of $19,413 that became delinquent in 2012. These debts were cited as disqualifying conditions F.1.a and F.1.c.

Despite admitting to the debts and offering explanations, the applicant failed to provide documentation supporting his claims or any payment arrangements. He also did not demonstrate participation in financial counseling or efforts to resolve the outstanding debts.

The judge concluded that the applicant did not mitigate the trustworthiness concerns raised by the significant and unresolved delinquent debts. Consequently, the applicant's eligibility for a public trust position was denied.

Why the Applicant Was Denied

Applicant incurred over $20,000 in delinquent debts that remain outstanding.
He provided no documentation to support his claims regarding the debts or any payment arrangements.
The applicant did not demonstrate any financial counseling or efforts to resolve his debts.

Conditions Referenced

Disqualifying

F.1.araisedInability or Unwillingness to Satisfy Debts
F.1.craisedA History of Not Meeting Financial Obligations

Key Rule Quoted

“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 [sensitive] information.”

Procedural Posture

SOR issuedFeb 5, 2016
Answer filedMay 10, 2016Applicant elected to have the case decided on the written record.
Hearing held—No hearing; case decided on the written record.
Decision dateMar 28, 2017

Cite For

Trustworthiness Concerns Under Guideline F Due to Financial Irresponsibility
Failure to Mitigate Substantial Delinquent Debts
Importance of Providing Evidence of Financial Counseling and Debt Resolution Efforts

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 three delinquent debts totaling $20,079, which remained unresolved. The applicant admitted to the debts but failed to provide sufficient documentation or evidence of efforts to mitigate the financial concerns. As a result, the judge ruled against the applicant on all allegations under Guideline F.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	SOR ¶ 1.a alleges a $256 utility debt that arose in 2010. $256	Against Applicant	Utility or Phone Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	SOR ¶ 1.b alleges an unpaid $410 medical debt from 2013. $410	Against Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.c	SOR ¶ 1.c alleges a charged-off student loan debt in the amount of $19,413 that became delinquent in 2012. $19,413	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. 15-08017 ) ) Applicant for Public Trust Position )

For Government: Jeff A Nagel, Esquire, Department Counsel For Applicant: Pro se

03/28/2017 ______________

STATEMENT OF CASE

______________

WHITE, David M., Administrative Judge:

Applicant incurred more than $20,000 in delinquent debts, all which remain outstanding. He did not mitigate resulting trustworthiness concerns. Eligibility to occupy a public trust position is denied.

On May 5, 2015, Applicant submitted an Electronic Questionnaires for Investigations Processing (e-QIP). (Item 2.) On February 5, 2016, the Department of Defense (DoD) issued Applicant a Statement of Reasons (SOR) detailing trustworthiness concerns under Guideline F (Financial Considerations). (Item 1.) The action was taken under DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); DoD 5200.2-R, Personnel Security Program, dated January 1987, as amended (Regulation); and the adjudicative guidelines (AG) effective within the Department of Defense for SORs issued after September 1, 2006.

On May 10, 2016, Applicant answered the SOR in writing and elected to have the case decided on the written record in lieu of a hearing. (Item 2.) On June 5, 2016, Department Counsel prepared a File of Relevant Material (FORM), containing five Items.1 The Defense Office of Hearings and Appeals (DOHA) mailed Applicant a complete copy of the FORM on June 13, 2016. Applicant received the FORM on June 20, 2016, and was provided 30 days from its receipt to file objections and submit additional information. He did not submit any information within the time provided, made no objection to consideration of any contents of the FORM, and did not request additional time to respond. On March 2, 2017, DOHA assigned the case to me.

FINDINGS OF FACT

Applicant is 30 years old. He has worked for a Government contractor as a healthcare business analyst since December 2014. He worked as a business systems analyst for a major information technology company from February 2012 to December 2014. He has never married and has no children. He earned a bachelor’s degree in August 2010, and has taken some additional college-level classes post-graduation. He has never served in the military, held a civilian position with the Federal Government, or held a security clearance or public trust position. (Item 2.)

The SOR alleged that Applicant had three delinquent debts, totaling $20,079. Record credit reports indicate these debts became delinquent in 2010, 2012, and 2013. In his response to the SOR, Applicant admitted all three debts, and explained the status of each as follows:

SOR ¶ 1.a alleges a $256 utility debt that arose in 2010. Applicant said he was disputing the amount with the collection agency because he thought the charge was too high and he had other college roommates living in the apartment who should have helped with the bill. He said that if he was convinced he owed the debt he would set up payment arrangements to handle it. He provided no documentation to demonstrate either communications with the creditor or a valid basis for a dispute.

SOR ¶ 1.balleges an unpaid $410 medical debt from 2013. Applicant said that he was unaware of this debt and thought his medical insurance would have handled it. He said that he had made arrangements with the collection agency to make monthly payments toward this debt, but provided no proof of such arrangements or payments thereunder.

SOR ¶ 1.calleges a charged-off student loan debt in the amount of $19,413 that became delinquent in 2012. Applicant said that he could not afford the loan payments on his income at the time, but that he had since been in contact with the collection agency to negotiate a settlement. After he told them he could not repay the entire debt, they offered to settle the debt for a lump sum payment of $9,000. He could not pay them that amount either, and they declined his request for a monthly payment arrangement. Applicant offered no documentation supporting these explanations either.

From May 2010 to June 2011, Applicant worked as a call center reservation agent for a hotel and resort company, but was terminated from that job for not meeting call standards. He remained unemployed until January 2012, but attended additional college classes from September to November 2011. Other than living at college as an undergraduate, Applicant lived in his parent’s home until moving in December 2014 to accept his current job. (Item 2.)

All three of the SOR-alleged delinquent debts remain unresolved, and Applicant provided no evidence of payments toward any of them, despite his continuous professional employment since February 2012, and the absence of any independent living expenses until December 2014. Applicant’s most recent record credit report, dated June 5, 2016, lists several additional delinquencies that have arisen since issuance of the SOR. (Item 1; Item 2; Item 5.)

Applicant submitted no evidence of financial counseling, or of budget estimates from which to analyze his current financial situation. No character references were submitted to describe Applicant’s judgment, trustworthiness, integrity, or reliability. I was unable to evaluate his credibility, demeanor, or character in person since he elected to have his case decided without a hearing.

POLICIES

Positions designated as ADP-I/II/III are classified as “sensitive positions.” (See Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3.) “The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, the person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to sensitive duties is clearly consistent with the interests of national security.” (See Regulation ¶ C6.1.1.1.) The Deputy Under Secretary of Defense (Counterintelligence and Security) Memorandum, dated November 19, 2004, indicates trustworthiness adjudications will apply to cases forwarded to the DoD and DOHA by the Defense Security Service and Office of Personnel Management. DoD contractor personnel are afforded the right to the procedures contained in the Directive before any final unfavorable access determination may be made. (See Regulation ¶ C8.2.1.)

When evaluating an applicant’s suitability for a public trust position, the administrative judge must consider the disqualifying and mitigating conditions in the AGs. 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 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 [sensitive] 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

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, and has the ultimate burden of persuasion as to obtaining a favorable [trustworthiness] decision.”

A person who applies for access to sensitive information seeks to enter 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 sensitive information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of sensitive information.

ANALYSIS

Guideline F, Financial Considerations

The trustworthiness concerns relating to the guideline for financial considerations are set out in AG ¶ 18, which reads in pertinent part:

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 [sensitive] information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. AG ¶ 19 describes two conditions that could raise trustworthiness concerns and may be disqualifying in this case:

(a) inability or unwillingness to satisfy debts; and

Applicant accumulated substantial delinquent debt since 2010, which he has been unable or unwilling to repay. This evidence raises trustworthiness concerns under these disqualifying conditions, thereby shifting the burden to Applicant to rebut, extenuate, or mitigate those concerns.

The guideline includes five conditions in AG ¶ 20 that could mitigate trustworthiness concerns arising from Applicant’s financial difficulties:

(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, or a death, divorce or separation), and the individual acted responsibly under the circumstances;

(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;

(d) the individual initiated 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 accumulated more than $20,000 in delinquent debts that were alleged in the SOR. He did not show through evidence that these debts arose from conditions beyond his control, or that he acted responsibly under the circumstances. He documented no counseling to assist with debt resolution, nor did he demonstrate an ability to avoid recurrence of financial problems. According to the record evidence, the debts alleged in SOR ¶¶ 1.a through 1.cremain unresolved, and no documented basis to dispute the legitimacy of any of them was provided. Applicant therefore failed to establish mitigation of trustworthiness concerns under AG ¶¶ 20(a) through 20(e).

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a public trust position 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.

According to AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a trustworthiness determination 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 the facts and circumstances surrounding this case. Applicant is a mature individual who is accountable for the decisions and choices that led to his financial difficulties. He failed to demonstrate a basis for finding current good judgment, or permanent behavioral change, concerning his continuing pattern of financial irresponsibility. His ongoing delinquent debts establish continuing potential for pressure, coercion, or duress.

Overall, the record evidence leaves me with questions and doubts as to Applicant’s present eligibility and suitability to occupy a public trust position. For these reasons, I conclude Applicant did not meet his burden to mitigate the trustworthiness concerns arising from his financial considerations.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline F: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 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 grant Applicant eligibility to occupy a public trust position. Eligibility for access to sensitive ADP information is denied.

DAVID M. WHITE Administrative Judge

FOOTNOTES

1 Item 3 is the summary of two unsworn interviews of Applicant, conducted on July 23, 2015, and August 12, 2015, which was included in the Report of Investigation (ROI) prepared by an investigator from the Office of Personnel Management (OPM). It was neither adopted nor authenticated by Applicant, but he did not object to its consideration in response to the FORM when offered the opportunity to do so. Pursuant to Directive E.3.1.20, ROI evidence is inadmissible in the absence of an authenticating witness. However, Applicants may reasonably assume that exculpatory information provided to an OPM investigator will be considered on their behalf. Accordingly, the explanations and justifications ascribed to Applicant by the OPM investigator in Item 3 have been considered on his behalf. No information in Item 3 that is adverse to Applicant will be considered unless it is cumulative with evidence contained elsewhere in the record.