ISCR Case No. 16-01054.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ADP Case No. 16-01054 ) ) Applicant for Public Trust Position

For Government: David Hayes, Esq., Department Counsel For Applicant: Pro se

06/21/2017 ______________

______________

RICCIARDELLO, Carol G., Administrative Judge:

Applicant mitigated the personal conduct trustworthiness concerns, but failed to mitigate the financial considerations trustworthiness concerns. Eligibility for access to sensitive information is denied.

Statement of the Case

On August 1, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant detailing trustworthiness concerns under Guidelines E, personal conduct, and F, financial considerations. The action was taken under DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. On June 8, 2017, new AGs were implemented and are effective for decisions issued after that date.1 On August 29, 2016, Applicant submitted an answer to the SOR and requested a hearing before an administrative judge. The case was assigned to me on March 22, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on May 4, 2017, and the hearing was convened as scheduled on June 8, 2017. Government Exhibits (GE) 1 through 4, were admitted in evidence without objection. Applicant and one witness testified. She also submitted Applicant Exhibit (AE) A, which was admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on June 16, 2017.

Applicant admitted the allegations in SOR ¶¶ 1.a through 1.k and denied ¶ 2.a. Her admissions are incorporated into the findings of fact. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is 54 years old. She completed the 11th grade. She married in 1982 and divorced in 1992. She has three adult children from the marriage. She remarried in 2006. Her husband is unable to work and receives Department of Veteran Affairs disability payments and Social Security income. Applicant became unemployed in 2010 until she was hired by her current employer, a federal contractor, in 2015.2

Applicant attributed her financial difficulties to her unemployment in 2010, moving to a new state in 2012, and then moving back in 2014, and helping her sick mother who passed away in January 2017. She received unemployment benefits when she was not working. In her answer to the SOR, she indicated that she had started to set up payment plans with each creditor and was going to make minimal payments of $20 on each debt monthly. She testified that she was unable to make these payments because she did not have the money. She stated that she contacted some creditors, but they wanted her to pay more than she was able. She testified she is now able to pay her debts and wants to pay them. She admitted that she has a new delinquent debt that is not alleged on the SOR. Applicant testified that she contacted a credit restoration company a few weeks before her hearing. She paid an initial consultation fee of $89, and intended to participate in its program that attempts to resolve derogatory items on her credit report and consolidate her debts.3

Applicant’s husband testified that many of his wife’s debts are for medical services. He stated he has his own unresolved debts. They are hoping to purchase a house. He has not reviewed his wife’s debts, but they are working through their financial issues. He stated they have talked about taking care of their past financial problems.4 The debts alleged in the SOR are supported by Applicant’s admissions and credit reports from November 2015 and June 2017.5

Applicant denied she deliberately provided false answers on her security clearance application (SCA) when she failed to disclose her delinquent debts. She credibly testified that she did not understand the questions on the SCA.6

When evaluating an applicant’s suitability for a public trust position, the administrative judge must consider the disqualifying and mitigating conditions in the AG. 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. According to AG ¶ 2(a), 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 the national security.”

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.15 states that 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 trustworthiness decision.

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

Guideline F, Financial Considerations

The trustworthiness concern for financial considerations is set out in 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. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage.

This concern is broader than the possibility that an individual might knowingly compromise sensitive information in order to raise money. It encompasses concerns about an individual’s self-control, judgment, and other qualities essential to protecting sensitive information. An individual who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding sensitive information.7

The guideline notes several conditions that could raise trustworthiness concerns under AG ¶ 19. Three are potentially applicable in this case:

(a) inability to satisfy debts;

(b) unwillingness to satisfy debts regardless of the ability to do so; and

(c) a history of not meeting financial obligations.

Applicant has numerous delinquent debts that she has been unable or unwilling to pay or resolve for several years. The evidence is sufficient to raise the above disqualifying conditions.

Conditions that could mitigate financial considerations security concerns are provided under AG ¶ 20. The following four are potentially applicable:

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

(c) the individual has received or is receiving counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control; and

(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts.

Applicant’s delinquent debts have been ongoing for several years and remain unresolved. AG ¶ 20(a) does not apply.

Applicant attributes her financial problems to unemployment, moving, and helping her mother. Her husband indicated she also had medical issues. These were conditions beyond Applicant’s control. For the full application of AG ¶ 20(b), Applicant must have acted responsibly under the circumstances. Applicant has been employed since 2015, and in her SOR answer she stated she would arrange payment plans with the creditors and make minimal payments. She did not. Shortly before her hearing, she contacted a credit repair company to help her remove derogatory information from her credit report and consolidate her debts. There is insufficient evidence to conclude that Applicant acted timely and responsibly under the circumstances. I find AG ¶ 20(b) partially applies.

Applicant recently hired a credit repair company, but there is insufficient evidence to conclude that there are clear indications that her financial problems are being resolved or under control. There is no evidence that she made a good-faith effort to pay any of the delinquent debts alleged. AG ¶¶ 20(c) and 20(d) do not apply.

Guideline E, Personal Conduct

AG ¶ 15 expresses the trustworthiness concern for personal conduct;

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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during the national security investigative or adjudicative processes.

AG ¶ 16 describes conditions that could raise a trustworthiness concern and may be disqualifying. I find the following one potentially applicable:

(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.

I find that Applicant did not deliberately omit, conceal, or falsify her SCA when she failed to disclose her financial problems. Applicant was genuinely confused by the questions on the SCA. I find her testimony credible. She refuted the personal conduct security concerns. Hence, a discussion of mitigating conditions is unnecessary.

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(d):

(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.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a public trust position 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 all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines F and E into my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment.

Applicant’s long period of unemployment, moves, and her mother’s passing affected her finances. She recently hired a credit repair company, but no progress has been made in paying or resolving any delinquent debts. Although I believe Applicant wants to resolve her financial problems, she is not yet in a position to do so. At this juncture, she has not established a meaningful track record of financial stability or debt resolution. Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a public trust position. For all these reasons, I conclude Applicant failed to mitigate the financial considerations trustworthiness concerns. Applicant refuted the personal conduct trustworthiness concerns.

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

Subparagraphs 1.a-1.k: Against Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant eligibility for a public trust position. Eligibility for access to sensitive information is denied.

_______________________ Carol G. Ricciardello Administrative Judge

1 I considered the previous AGs, effective September 1, 2006, as well as the new AGs, effective June 8, 2017. My decision would be the same if the case was considered under the previous AGs. 2 Tr. 14-17. 3 Tr. 19-27, 30, 33-34; AE A. The new debt is not alleged in the SOR and will not be considered for disqualifying purposes, but may be considered when accessing Applicant’s credibility, applying mitigating conditions, and when analyzing the whole person. 4 Tr. 36-44. 5 GE 2, 3, 4. 6 Tr. 27-29, 31-33. 7 See ISCR Case No. 11-05365 at 3 (App.Bd. May 1, 2012).