ISCR Case No. 16-01067.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ------------------------------------ ) ADP Case No. 16-01067 ) ) Applicant for Public Trust Position

For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: Pro se

10/05/2017 ______________

______________

LEONARD, Michael H., Administrative Judge:

Applicant contests the Defense Department’s intent to deny or revoke her eligibility for a public trust position. She did not present sufficient evidence to explain, extenuate, or mitigate the trustworthiness concern stemming from her history of financial problems. Accordingly, this case is decided against Applicant.

Statement of the Case

Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 format) on June 10, 2015. Thereafter, on October 1, 2016, after reviewing the application and the information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, Fort Meade, Maryland, sent Applicant a statement of reasons (SOR), detailing a trustworthiness concern under Guideline F for financial considerations. The SOR is similar to a complaint.

Applicant answered the SOR on November 29, 2016, and she requested a decision based on the written record in lieu of a hearing. Her answer consisted of handwritten responses on a copy of the SOR and a one-page memorandum without attachments or enclosures. On January 12, 2017, Department Counsel submitted all relevant and material information that could be adduced at a hearing. The file of relevant material (FORM) consists of Department Counsel’s written brief and supporting documentation. The FORM was mailed to Applicant, who received it on January 23, 2017. She did not reply to the FORM within the 30-day period provided for under the Directive. The case was assigned to me October 1, 2017.

Department Counsel’s FORM includes Exhibits 10 and 11, which are reports of investigation (ROI) summarizing Applicant’s interviews that took place during background investigations in February 2012 and November 2015. The ROI are not authenticated by a witness, as required under ¶ E3.1.20 of the Directive.1 The Directive provides no exception to the authentication requirement. Indeed, the authentication requirement is the exception to the general rule that prohibits consideration of an ROI.

Department Counsel’s written brief includes a footnote advising Applicant that the ROI were not authenticated and that failure to object may constitute a waiver of the authentication requirement. Nevertheless, the record does not demonstrate that Applicant, who has not replied to the FORM, understood the concepts of authentication, waiver, and admissibility. It also does not demonstrate that she understood the implications of waiving an objection to the admissibility of the ROI. Accordingly, given the lack of an authenticating witness, I have not considered the ROI in reaching my decision.

Applicant is a 58-year-old customer service representative for a health-care contractor to the Defense Department. She is seeking to obtain or retain eligibility to occupy a position of public trust for her job responsibilities. Eligibility is necessary because her job involves access to sensitive but unclassified information.

Under Guideline F for financial considerations, the SOR alleged a history of financial problems consisting of seven collection or charged-off accounts in amounts ranging from $381 to $10,194 for a total of about $14,249. In her answer to the SOR, she admits four debts, states that two debts are in question, and states that one debt was cleared. The delinquent accounts are established by her admissions along with the credit reports in the written record.2 This is no documentation in the written record to show that any of the seven delinquent accounts were paid, settled, in a payment arrangement, cancelled, forgiven, or otherwise resolved. In her answer to the SOR, Applicant acknowledged being asked about the same delinquent account (presumably, the largest debt for $10,194) several times during the processing of her case. But she expressed surprise at the other six delinquent accounts, and she also complained about the fairness of considering those matters by obtaining additional credit reports. She claimed to have paid a couple of the debts, but offered no specifics. She did not present a plan for how she intended to address and resolve the delinquent accounts. Nor did she submit any documentation in support of her case.

Law and Policy

This case is adjudicated under Department of Defense Directive 5220.6, Defense Industrial Personnel Security Review Program (Jan. 2, 1992), as amended (Directive); and the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AG), effective June 8, 2017.

Under Guideline F for financial considerations,3 the suitability of an applicant may be questioned or put into doubt when that applicant has a history of excessive indebtedness or financial problems or difficulties. The overall concern is:

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 or sensitive information.4

The concern is broader than the possibility that a person might knowingly compromise sensitive information to obtain money or something else of value. It encompasses concerns about a person’s self-control, judgment, and other important qualities. A person who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding sensitive information.

In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions:

AG ¶ 19(a) inability to satisfy debts;

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

AG ¶ 20(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts. The evidence supports a conclusion that Applicant has a problematic financial history sufficient to raise a concern under Guideline F. All seven of the delinquent accounts are unresolved and ongoing. There is certainly not sufficient evidence to conclude that she is making a good-faith effort to repay her delinquent debts. Moreover, given that she requested a decision based on the written record in lieu of a hearing, the lack of documentation undermines her case. It’s the responsibility of the individual applicant to produce relevant documentation in support of their case. Here, Applicant has not met her burden of production, because she did not present any documentation showing that she is making some sort of effort to resolve the delinquent accounts. Accordingly, based on the written record, I am unable to make the affirmative determination that Applicant is an acceptable risk.5

To conclude, Applicant’s history of financial problems, which is ongoing, creates doubt or concern about her reliability, trustworthiness, good judgment, and ability to protect sensitive information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also gave due consideration to the whole-person concept. For all these reasons, I conclude Applicant did not present sufficient information to explain and mitigate the trustworthiness concern.

The formal findings on the SOR allegations are:

Paragraph 1, Guideline F: Against Applicant

Subparagraphs 1.a-1.g: Against Applicant

In light of the record as a whole, it is not clearly consistent with the interests of national security to grant Applicant eligibility for access to sensitive information.

Michael H. Leonard Administrative Judge

1 See generally ISCR Case No. 12-10933 (App. Bd. Jun. 29, 2016) (In a concurring opinion, Judge Ra’anan notes the historical concern about reports of investigation in that they were considered by some to present a heightened problem in providing due process in security clearance cases. Judge Ra’anan raises a number of pertinent questions about using an unauthenticated ROI in a non-hearing case with a pro se applicant.).

2 Exhibits 6, 7, 8, and 9. 3 AG ¶¶ 18, 19, and 20 (setting forth the concern and the disqualifying and mitigating conditions).

4 AG ¶ 18. 5 Directive, Enclosure 2, ¶ 2(a).