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ISCR 16-00444.h1: Guideline E security clearance hearing, denied (2017) · CASE

ISCR Case 16-00444.h1denied

Case headnote

ISCR Case No. 16-00444.h1

deniedMay 24, 2017· Hon. Marc E. Curry· hearing

Summary

A 54-year-old married man was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant's financial difficulties originated from a marital separation, and while he did not intentionally falsify his application, his ongoing delinquencies and limited progress in debt reduction were central to the denial.

The Statement of Reasons detailed several outstanding debts. These included a $13,292 delinquency on a repossessed car, $6,305 in delinquent rental payments, and four separate delinquent medical bills, each totaling $500. Additionally, the applicant had a $136 delinquent car insurance payment and a $1,453 delinquent state income tax, which resulted in a tax lien issued in 2008.

The denial was based on the applicant's approximately $20,000 in delinquent debt, with no payments made toward most of the listed obligations. Despite recent engagement with a credit counselor, these efforts were deemed insufficient to mitigate the financial concerns.

Why the applicant was denied

The applicant has approximately $20,000 in delinquent debt, including unpaid medical bills and rental payments.
The applicant has not made payments towards most of the debts listed in the Statement of Reasons (SOR).
The applicant's financial difficulties were not sufficiently mitigated despite recent efforts to work with a credit counselor.

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 That Resulted in the Financial Problem Were Largely Beyond the Person’s Control
AG ¶ 20(c)rejectedThe Person Has Received or Is Receiving Counseling for the ProblemThe applicant has not demonstrated clear indications that the financial problems are being resolved.
AG ¶ 20(d)rejectedThe Individual Initiated a Good-faith Effort to Repay Overdue CreditorsThe applicant has not made payments towards most of the debts.

Key rule quoted

“The protection of the national security is the paramount consideration.”

Procedural posture

SOR issuedJun 6, 2016
Answer filedJul 21, 2016
Hearing heldMar 15, 2017
Decision dateMay 24, 2017

Cite for

Financial Difficulties Stemming From Marital Separation Under Guideline F
Consideration of Cognitive Difficulties in Personal Conduct Evaluations
Insufficient Progress in Debt Reduction as a Basis for Denial of Security Clearance

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.

Age at decision: 54: “Applicant is a 54-year-old married man with one child, a teenager.”
Tenure: ~11 years: “He has been working for a defense contractor as a mailroom clerk since 2006.”
Delinquent debt cited: $20,000 (on a payment plan): “The SOR alleges approximately $20,000 of delinquent debt, including the deficiency on a repossessed car, totaling $13,292 (subparagraph 1.a), delinquent rental payments, totaling $6,305 (subparagraph 1.b), delinquent medical bills, totaling $500 (subparagraphs 1.c – 1.f), a delinquent car insurance payment, totaling $136 (subparagraph 1.g), and delinquent state income taxes, prompting the issuance of a tax lien in 2008, totaling $1,453 (subparagraph 1.h).”

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found no personal conduct security concerns regarding the applicant's failure to disclose financial information on his security clearance application. The applicant's explanation for the omissions was deemed credible due to his learning disabilities, leading to a favorable ruling on the allegations under Guideline E.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

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 significant financial difficulties stemming from a marital separation, resulting in multiple delinquent debts. While the applicant satisfied a tax lien, the judge concluded that the overall financial situation was insufficiently mitigated, leading to a denial of the security clearance.

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: ) ) ) ISCR Case No. 16-00444 ) ) Applicant for Security Clearance

For Government: Erin Thompson, Esq., Department Counsel For Applicant: Kristin Turner, Personal Representative

05/24/2017 ______________

STATEMENT OF CASE

______________

Curry, Marc E., Administrative Judge:

Applicant did not falsify his 2014 security clearance application when he failed to disclose information, as required, about his finances. There are no personal conduct security concerns. Although medical problems and a marital separation contributed to Applicant’s financial difficulties, it is too soon to conclude that he has mitigated the financial considerations security concerns, given the lack of substantiated progress at debt reduction. Clearance is denied.

Statement of the Case

On June 6, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline F, financial considerations, and Guideline E, personal conduct, explaining why it was unable to find it clearly consistent with the national interest to grant security clearance eligibility for him. The DOD CAF took the action under Executive Order (EO) 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 for Determining Eligibility for Access to Classified Information (AG) effective within the DOD on September 1, 2006.

On July 21, 2016, Applicant answered the SOR allegations, admitting the Paragraph 1 allegations and denying the Paragraph 2 allegations, and requested a hearing. The case was assigned to me on December 6, 2016. On February 1, 2017, DOHA issued a notice of hearing, scheduling Applicant’s case for March 15, 2017. The hearing was held as scheduled. I received five Government exhibits (GE 1 – GE 5), and four Applicant’s exhibits (AE A – AE D). At the close of the record, I left open, at Applicant’s request, to allow him to submit additional exhibits. Within the time allotted, he submitted one additional exhibit that I incorporated into the record, without objection, as AE E. The transcript (Tr.) was received on March 23, 2017.

FINDINGS OF FACT

Applicant is a 54-year-old married man with one child, a teenager. He has been separated from his wife since 2014. A previous marriage ended in divorce in 2000. (Tr. 52) Applicant has a high school education. He has been working for a defense contractor as a mailroom clerk since 2006. (GE 1 at 16; Tr. 24, 30)) Applicant is highly respected on the job. According to his supervisor, his service skills are excellent and he “goes over and beyond [in] helping customers.” (AE A at 2)

The SOR alleges approximately $20,000 of delinquent debt, including the deficiency on a repossessed car, totaling $13,292 (subparagraph 1.a), delinquent rental payments, totaling $6,305 (subparagraph 1.b), delinquent medical bills, totaling $500 (subparagraphs 1.c – 1.f), a delinquent car insurance payment, totaling $136 (subparagraph 1.g), and delinquent state income taxes, prompting the issuance of a tax lien in 2008, totaling $1,453 (subparagraph 1.h). All of the debts except subparagraph 1.hstem from Applicant’s marital separation in 2014. Applicant and his ex-wife were dependent on both incomes to make ends meet. By 2013, Applicant had satisfied the tax lien through a wage garnishment. (AE E) The other delinquencies remain outstanding. For the past “couple months” Applicant has been working with a credit counselor. (AE E at 6)

Generally, Applicant’s discretionary income is minimal given that his expenses often exceed his income. He does not own a car, and much of his expenses cover copayments for treatment of a chronic condition. (Answer at 4)

Applicant failed to list relevant information about his delinquent finances and his 2008 tax lien in response to Section 26 of his 2014 security clearance application. Applicant contends that his omissions were not intentional, and attributes them to “confusion.” (Tr. 26) Throughout Applicant’s childhood, he received special education services for learning disabilities. (AE B at 1) Per a neurologist who evaluated him in January 2015, he has borderline verbal intelligence and semantic fluency, and difficulty writing sentences and following conversations. (AE B at 1-3)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered in evaluating an applicant’s eligibility for access to classified 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 overall 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 classified 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. 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 applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion to obtain a favorable security decision.

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 and endures throughout off-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 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. Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline F, Financial Considerations

The security concerns about financial considerations are set forth in AG ¶ 18:

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. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.

Applicant’s financial problems trigger the application of disqualifying conditions AG ¶ 19(a), “inability or unwillingness to satisfy debts,” and AG ¶ 19(c), “a history of not meeting financial obligations.”

The following mitigating conditions are potentially applicable:

AG ¶ 20(bthe 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; and

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

Most of Applicant’s financial problems stems from his marital separation, as he was dependent on the additional income from his estranged wife to help make ends meet. He has recently begun working with a credit counselor to help him address his financial problems. AG ¶ 20(b) applies.

Applicant satisfied the 2008 tax lien. I resolve subparagraph 1.hin his favor. Conversely, he has neither satisfied nor begun making payments towards any of the other SOR debts. Under these circumstances, AG ¶ 20(c) and AG ¶ 20(d) do not apply. On balance, the satisfaction of the tax lien listed in subparagraph 1.his insufficient for me to conclude that Applicant has mitigated the financial considerations security concerns, in light of the delinquencies that remain outstanding. Personal Conduct

Under this guideline, “conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information.” (AG ¶ 15) Moreover, “of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.” (Id.)

Appellant’s omission of relevant financial information from his 2014 security clearance application raises the issue of whether AG ¶ 16(a), “deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities,” applies. Given Applicant’s history of learning disabilities and the neurologist’s diagnosis of his current cognitive difficulties, I conclude that Applicant’s explanation that the financial questions on the security clearance application confused him, was credible. There are no personal conduct security clearance concerns.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must consider the totality of an applicant’s conduct and all relevant circumstances in light of the nine adjudicative process factors in AG ¶ 2(a). They are as follows:

(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.

In reaching my conclusion, I considered Applicant’s solid character reference, and I also considered that he has nominal discretionary income, if any, to begin satisfying his debts. However, he satisfied none of the debts other than the garnishment, despite the fact that two of the bills were under $100. It is commendable that Applicant is seeking financial assistance to organize his finances, but it is currently too soon to conclude that he has mitigated the security concern.

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.g: Against Applicant

Subparagraph 1.h: For Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraphs 2.a – 2.b: For 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 for a security clearance. Eligibility for access to classified information is denied.

_____________________ Marc E. Curry Administrative Judge