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ISCR Case 07-17830.h1 — CASE

ISCR Case 07-17830.h1denied

Case Headnote

ISCR Case No. 07-17830.h1

deniedApr 8, 2009· Hon. Thomas M. Crean· hearing

Summary

A 41-year-old defense contractor and former Navy service member was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The denial stemmed from significant, unresolved financial issues and the applicant's submission of false information during the clearance process.

The Statement of Reasons detailed multiple delinquent debts, including a cell phone account for $1,098, a medical debt for $65, and two cable debts for $121 and $517. Other financial issues included a mail order debt for $393, a car repossession judgment being collected by garnishment for $11,000, another cell phone debt for $292, two loan debts for $1,180 and $2,237, and two credit card debts for $2,009 and $1,012.

The judge found that the applicant's financial difficulties were substantial and unaddressed. Crucially, the applicant admitted to deliberately submitting false documents regarding his debts, which severely undermined his trustworthiness. The applicant failed to demonstrate a good-faith effort to resolve his financial issues or present a concrete plan for addressing his debts, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant had unresolved delinquent debts indicating financial irresponsibility.
The applicant admitted to submitting false documents to the government, raising serious trustworthiness concerns.
The applicant failed to demonstrate a good-faith effort to resolve his financial issues or to provide a concrete plan for addressing his debts.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)raisedA History of Not Meeting Financial Obligations
AG ¶ 16(b)raisedDeliberately Providing False or Misleading Information

Key Rule Quoted

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

Procedural Posture

SOR issuedAug 5, 2008
Answer filedAug 28, 2008
Hearing heldMar 19, 2009
Decision dateApr 8, 2009

Cite For

Financial Irresponsibility as a Disqualifying Factor Under Guideline F
Deliberate Submission of False Information as a Disqualifying Factor Under Guideline E
The Importance of Demonstrating a Good-faith Effort to Resolve Financial Issues in Security Clearance Cases

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline E, indicating concerns about the applicant's personal conduct, particularly regarding the provision of false information during the security clearance process. The applicant admitted to submitting false documents but claimed it was due to an administrative error, which the judge did not find credible enough to mitigate the concerns.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a–2.j	10 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

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 several delinquent debts, some of which were resolved, while others remained unpaid. The applicant's financial issues were not sufficiently mitigated, leading to a denial of his security clearance under Guideline F.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	a cell phone account in collection for $1,098 $1,098	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	a medical debt in collection for $65 $65	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts	Documented Debt Paid in Full
1.c	a cable debt in collection for $121 $121	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.d	a mail order debt charged off for $393 $393	For Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts	Documented Debt Paid in Full
1.e	a car repossession judgment being collected by garnishment for $11,000 $11,000	For Applicant	Judgment Against Applicant	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts	Documented Payment Plan with Creditor
1.f	a cell phone debt in collection for $292 $292	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.g	a loan in collection for $1,180 $1,180	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.h	a credit card debt in collection for $2,009 $2,009	Against Applicant	Credit Card Debt	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.i	another credit card debt in collection for $1,012 $1,012	Against Applicant	Credit Card Debt	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.j	a loan debt in collection for $2,237 $2,237	For Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(d) good-faith effort to repay or otherwise resolve debts	Documented Debt Paid in Full
1.k	a cable debt in collection for $517 $517	Against Applicant	Unspecified Financial	Denied	(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.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on the criminal conduct concerns under Guideline J, specifically finding that the applicant provided false information during the security clearance process. This conduct raised significant security concerns, leading to the denial of the applicant's eligibility for access to classified information.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant provided false information in the security clearance process.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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. 07-17830 ) ) Applicant for Security Clearance )

For Government: Richard A. Stevens, Esquire, Department Counsel For Applicant: Pro Se

April 8, 2009 ______________

STATEMENT OF CASE

______________

CREAN, Thomas M., Administrative Judge:

Applicant submitted a Questionnaire for Sensitive Positions (SF 86) on April 17, 2007. On August 5, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) for Applicant detailing security concerns for financial considerations under Guideline F. Applicant provided a written response to the SOR on August 28, 2008. He denied ten of the allegations and admitted one allegation. He provided ten attachments to his response which appear to be letters from creditors that the ten debts had been paid. The one debt not paid was being paid through garnishment of his wages. DOHA issued an addendum to the SOR on January 8, 2009, alleging that the ten attachments to his response to the original SOR were false documents thereby raising a personal conduct security concern under Guideline E and a criminal conduct security concern under Guideline J for providing false information in the security clearance process. The allegations in the Statement of Reasons was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive), and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant answered the addendum to the SOR in writing on February 8, 2009. He admitted the documents he submitted were false as a result of an administrative error. He denied the criminal conduct security concern since he did not provide the false documents with intent to deceive. He requested a hearing before an administrative judge. Department Counsel was prepared to proceed on February 12, 2009, and the case was assigned to me on February 23, 2009. DOHA issued a Notice of Hearing on February 24, 2009, for a hearing on March 19, 2009. I convened the hearing as scheduled. The government offered five exhibits, marked Government Exhibits (Gov. Ex.) 1 through 5, which were received without objection. Applicant testified on his behalf, and submitted ten exhibits marked Applicant Exhibits (App. Ex) A through J which were received without objection. The record was left open for Applicant to submit additional documents. Applicant timely submitted five documents marked App. Ex. K through O, on March 24, 2009. The government did not object to the admission of the documents (See Gov. Ex. 6, Department Counsel Letter, dated April 6, 2009), and the documents are admitted into the record. DOHA received the transcript of the hearing (Tr.) on March 26, 2009. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to classified information is denied.

FINDINGS OF FACT

After a thorough review of the pleadings, transcript, and exhibits, I make the following essential findings of fact. Applicant denied ten and admitted one of the allegations under Guideline F. He admitted the ten allegations under Guideline E and denied the allegation under Guideline J. He provided additional information to support his request for eligibility for a security clearance.

Applicant is 41 years old and has worked for a defense contractor for about two years as a test instrumentation engineer. He is a college graduate with a degree in engineering. Applicant served on active duty in the Navy for twelve years, in the active Navy Reserve for five years, and in the inactive Navy Reserve for four years. He held a security clearance while on active duty with the Navy but did not require access to classified information in the Navy Reserve.

Applicant married in 1991 and divorced in 2001. There were three children from this marriage. He provides child support for the children to included paying arrearage on child support (App. Ex. A, Divorce decree, dated August 24, 2001). The divorce was acrimonious (Tr. 39-42, 67-68, 73-76; Gov. Ex. 1, SF 86, dated April 17, 2007).

Applicant recently married again and has no children from this marriage. He and his wife work for the same defense contractor. Their approximately monthly net pay is $8,000. Applicant's pay is debited for child support and garnishment (App. Ex. K and App. Ex. L, Pay information, dated March 19, 2009). The couple has monthly expenses of about $5,000, leaving approximately $3,000 in monthly disposable income (Tr.73-76). Applicant submitted a Questionnaire for National Security Position (SF 86) in June 2006 as part of his employment with the defense contractor. A subsequent security investigation shows the following delinquent debts for Applicant: a cell phone account in collection for $1,098 (SOR 1.a); a medical debt in collection for $65 (SOR 1.b); a cable debt in collection for $121 (SOR 1.c); a mail order debt charged off for $393 (SOR 1.d); a car repossession judgment being collected by garnishment for $11,000 (SOR 1.e); a cell phone debt in collection for $292 (SOR 1.f); a loan in collection for $1,180 (SOR 1.g); a credit card debt in collection for $2,009 (SOR 1.h); another credit card debt in collection for $1,012 (SOR 1.i); a loan debt in collection for $2,237 (SOR 1.j); and a cable debt in collection for $517 (SOR 1.k) (See Gov. Ex. 3, Credit report, dated April 18, 2007; Gov. Ex. 4, Credit report, dated March 13, 2008; and Gov. Ex. 5, Credit report, dated February 11, 2009).

Applicant noted that most of the debts started when he and his first wife were in the process of divorcing. He noted that his wife during this time had the ability to open accounts in his name. He presented no information to substantiate any illegal actions by his former wife or that she opened accounts in his name without his knowledge. Applicant also noted that during this time he moved frequently and was unemployed at times. This made it hard for him to keep current with his debts. Applicant was not sure of the origin of some of the debts, so he wrote the credit reporting agencies to dispute the debts at SOR 1.a, 1.f, 1.g, 1.h, 1.i, and 1.j (Tr. 67-69).

Delinquent debts SOR 1.a and 1.fare the same debt for cell phone service from the same company in collection by different agencies. The debt was disputed and resolved in Applicant's favor. It is no longer considered by the credit reporting agencies as a debt for Applicant (Tr. 21-22, 30-31, 43-43; App. Ex. B, Letter resolving dispute, dated January 24, 2009).

Delinquent debt SOR 1.bis a medical debt incurred by Applicant for treatment of his son in 2002. The account was paid in full in 2009. Applicant did not know of the debt until he received the original SOR. He moved after his son received the treatment so he never received a bill from the medical facility (Tr. 34-35, 43-45; App. Ex. H, Receipt, dated January 29, 2009).

Delinquent debt SOR 1.cis a cable bill in collection. Applicant does not have any knowledge concerning this debt (Tr. 47).

Delinquent debts SOR 1.dand 1.jare the same debt from a mail order company. Applicant transferred this debt to another credit card. The transfer resolved the debts for the creditors listed in SOR 1.dand 1.j. Applicant is current on his payments for the credit card and the present balance on the revolving account is $25 (Tr. 22-27, 47-49; App. Ex. C, Credit card statement, dated June. 21, 2008; App. Ex. D, Transfer letter, dated April 15, 2008).

Delinquent debt SOR 1.e is for the remainder debt from an involuntary car repossession. The debt was reduced to a judgment and his wages are garnished $200 per month to pay the judgment. He has been paying on the debt for two years and the debt has been reduced. Applicant does not know the current balance on the debt (Tr. 49-51).

Delinquent debts SOR 1. gand 1.hare the same and were originally from a credit card used during his first marriage. He is not sure when the account was opened, by whom, and who used the card. He tried to get some information on the accounts from the collection agencies but they were uncooperative. This debt has not been resolved (Tr. 52-54).

Delinquent debt SOR 1.i is a bank credit card. Applicant believes it was the government travel credit card he used when he was in the Navy Reserve. The credit card was opened in 1999 and Applicant started in the Navy Reserve in 1998. He inquired about the card from the bank but has not received a reply (Tr. 54-55).

Delinquent debt SOR 1.kis a debt for a cable company. Applicant and his former wife had service from the cable company before their divorce. He contacted the company but has not received information on the account (Tr. 56-57).

Applicant responded to the August 5, 2008 SOR allegation of eleven delinquent debts on August 28, 2008. Applicant admitted one of the debts, the car repossession, but noted it was being paid by wage garnishment. He denied the other ten debts. His response to each of the SOR allegations states "I deny remaining in debt to _ _ _ (the creditor)." Applicant attached ten letters from creditors stating that the debts had been paid in full and the dates that the account was paid. The attachment letters appeared to have the letterhead of the creditor, account numbers or account information, and the signatures of an official from the creditor. The letterheads were created by Applicant from information on the creditors' web sites. The signatures were computer generated (Response to SOR, dated August 28, 2008, Attachments 1-10).

Applicant admits that he created the letters using the creditors' logos from the creditors' computer web site. The account information is either created or made to match account information on credit reports. The signatures were computer generated by Applicant. In at least two letters, the signature name and signature of the creditor's official is the same for two different companies at two different locations (See Response to SOR, dated August 28, 2008, attachments 2 and 3). Applicant stated that he tried to get information from the creditors but in many instances the creditor was uncooperative. He drafted the letters to send to the creditors as an example of a letter he wanted from them. He stated that he sent the letters to the creditors with a cover letter explaining that he needed information on accounts in his name. He told the creditors that the attached sample letter was an example of the letter he expected in return. He did not include the cover letter in his August 28, 2008 Response to the SOR. A cover letter was provided at the hearing. The date on the cover letter provided at the hearing was August 20, 2009. Applicant explained that the date was a typographical error and should have been August 20, 2008 (Tr. 36-39, 56-67, 71-73). Applicant received some letters from creditors concerning his delinquent accounts. He stated he received information in response to the debt at SOR 1.b, but he did not provide that response. He received information concerning the status of the same debt listed at SOR 1.gand 1.h (App. Ex. M, Letter, dated March 13, 2009). He received a reply concerning the same debt listed at SOR 1.dand 1.j (App. Ex. N, Letter, dated March 18, 2009). There is no indication that these letters were in response to the cover letter dated August 20, 2009 (Tr. 71-73, 89; App. Ex. O, Applicant's letter, dated March 24, 2009).

POLICIES

When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 over-arching adjudicative goal is a fair, impartial and common sense 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. 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 applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining 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 the Applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

ANALYSIS

Financial Considerations:

Under financial considerations, 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 (AG ¶ 18). Similarly, an individual who is financially irresponsible may also be irresponsible, unconcerned, or careless in their obligations to protect classified information. Behaving responsibly or irresponsibly in one aspect of life provides an indication of how a person may behave in other aspects of life.

A person’s relationship with his creditors is a private matter until evidence is uncovered demonstrating an inability or unwillingness to repay debts under agreed terms. Absent evidence of strong extenuating or mitigating circumstances, an applicant with a history of serious or recurring financial difficulties is in a situation of risk inconsistent with the holding of a security clearance. An applicant is not required to be debt free, but is required to manage his finances in such a way as to meet his financial obligations. The delinquent debts that Applicant admits and are listed in credit reports are a security concern raising Financial Consideration Disqualifying Conditions (FC DC) ¶ 19(a) "inability or unwillingness to satisfy debts", and FC DC ¶ 19(c) "a history of not meeting financial obligations". Applicant accumulated delinquent debt after his 2001 divorce, and some of the debts have yet to be resolved or paid according to a payment plan. There are actually eight delinquent debts since three of the debts are the same debts listed under different creditors (SOR 1.a and 1f, SOR 1.dand 1.J, and SOR 1.g. and 1.h).

The government produced substantial evidence to establish the disqualifying conditions in AG ¶¶ 19(a) and (c). The burden shifts to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the concerns raised under financial considerations (Directive ¶ E3.1.15). An applicant has the burden to refute an established allegation or prove a mitigating condition, and the burden of disproving it never shifts to the government (See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005)).

I considered Financial Considerations Mitigating Conditions (FC MC) ¶ 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", and FC MC ¶ 20(b) "the conditions that resulted in the financial problems 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"; and FC MC ¶ 20(d) "the individual has initiated a good-faith effort to repay the overdue creditors or otherwise resolve debts." For FC MC ¶ 20(d) to apply, there must be an “ability” to repay the debts, the “desire” to repay, and “evidence” of a good-faith effort to repay. A systematic, concrete method of handling debts is needed.

The delinquent debts were incurred prior to Applicant's divorce from his first wife in 2001. He disputed one of the debts and it was resolved in his favor by the credit reporting agency (SOR 1.a). One debt has been paid in full (SOR 1.b). One debt has been transferred to another credit card and that account is current (SOR 1.d). One debt has been subject to garnishment after a judgment for over two years and the debt is being paid as agreed (SOR 1.e). With regard to the debts alleged in SOR 1.a, 1.b, 1.d, and 1.e, Applicant has established either payment of the debts or a good faith effort to pay them. These debts are no lot of security concern.

Applicant stated he has no knowledge of the remaining four debts. He has not inquired about one of the debts. He inquired about three of the debts but received no reply or inadequate responses from the creditors. He has not followed up on any of his inquiries. The debts are current debts since they have not been paid. The conditions that led to his debts may have been beyond his control since they could have been incurred by his first wife without his knowledge or permission. However, Applicant has presented no information to substantiate his claim that the debts were incurred by his first wife without his permission. In addition, he did not establish that under the circumstances he acted responsibly towards his debts. He made minimal inquires and has not followed up on his requests for information. He is unsure of the amount owed on some of the debts. Applicant has not presented sufficient information to meet his burden of establishing that he acted in good-faith and responsibly. He still has significant current delinquent debts. Applicant noted periods of unemployment. However, he presented no information to show how his lack of steady work affected his finances or caused financial problems. He has not presented any information to show his financial problems will not recur. None of the mitigating conditions (¶ 20 (a), ¶ 20(b), and ¶ 20 (d)) apply to the four debts still not being addressed by Applicant.

FC MC ¶ 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 under control" does not apply. Applicant did not present any information on any financial counseling he has received. He has not presented any information to establish that his finances are under control.

Applicant has no concrete plan for how he will pay his remaining delinquent debts. He has not contacted creditors to learn about his debts and arrange acceptable conditions for paying the debts. In short, he has no plan of attack to stabilize his debts and be current with his payments. He has not made any consistent payments on the debts. He has not indicated a strong desire to pay the debts, and thus has not shown a good-faith effort to pay them. Applicant's actions do not establish that he is financially responsible. He has not mitigated security concerns raised by his financial situation.

Personal Conduct

A security concern is raised because conduct involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information. 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. (AG ¶ 15) Personal conduct is always a security concern because it asks the central question does the person’s past conduct justify confidence the person can be entrusted to properly safeguard classified information. The security clearance system depends on the individual providing correct and accurate information. If a person conceals or provides false information, the security clearance process cannot function properly to ensure that granting access to classified information is in the best interest of the United States Government. Applicant provided false creditor letters showing debts were paid to security adjudicators. This action raises security concerns under Personal Conduct Disqualifying Condition (PC DC) AG ¶ 16(b) "deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative."

I have also considered Personal Conduct Mitigating Conditions (PC MC) AG ¶ 17(a) "the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts"; PC MC AG ¶ 17(c) "the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment"; and PC MC AG ¶ 17(d) " the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur".

Applicant denied intentionally providing false or misleading information. He admitted that the creditor letters he provided to a security adjudicator were false. He stated he was having difficulty receiving information from creditors so he sent them the letters as an example of letters he should receive in response to his inquiry. He stated he sent the letters with a cover letter outlining his desires. He claims an administrative error led to the confusion with the security adjudicator. He failed to send the adjudicator the cover letter. Applicant's testimony on this issue was not credible. It is inconceivable that an applicant would send sample letters on creditor letterhead complete with account numbers, account information, and the signatures of officials from the creditor stating debts were paid in full on a certain date as an example of letters that the person would like to receive in return. It is also inconceivable that a person would send copies of ten separate letters to a security adjudicator without a full and complete explanation. The response to the SOR letter to the security adjudicator only said that Applicant denied a debt to the creditor. That letter together with the attached paid in full letters from creditors could only lead the security adjudicator to the conclusion that the debts had been paid in full. A falsification must be deliberate and material. It is deliberate if it is done knowingly and willfully. I find Applicant deliberately sent false payment letters to the security adjudicator with the intent to deceive her into believing the debts had been paid. The government established that Applicant acted deliberately with the intent to deceive the security adjudicator. Applicant has not established that he did not deliberately provide the false information to the security adjudicator with intent to deceive. I find against Applicant as to all ten allegations of Personal Conduct.

Criminal Conduct

Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature it calls into question a person’s ability or willingness to comply with laws, rules, and regulations (AG ¶ 30). A federal criminal statute makes it a criminal act to deliberately provide false information during the security investigation process. Applicant provided false letters to a security adjudicator in response to an SOR. Applicant denied that his action in providing the false letters was a criminal act. The government must establish by substantial evidence controverted facts alleged in the SOR. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record (See, directive ¶ E3.1.14, ISCR Case No. 04-11463 (App. Bd. Aug 4, 2006)). Substantial evidence is more than a scintilla but less than a preponderance (See v. Washington Metro. Area Transit Auth., 36 F. 3d 375, 380 (4th Cir. 1994)). Applicant admitted the letters were false. Based on Applicant's admissions, the government established by substantial evidence the criminal offense alleged in the SOR. These facts raise Criminal Conduct Disqualifying Conditions (CC DC) ¶ 31(a) "a single serious crime or multiple lesser offenses", and CD DC ¶ 31(c) "allegation or admission of criminal conduct, regardless of whether the individual was formally charged, formally prosecuted or convicted". Deliberately providing false information to a government agent is a serious crime. Even though charges may not have been prosecuted, they are still allegations of criminal conduct that raise a security concern.

As noted above, the government produced substantial evidence to establish the disqualifying conditions in AG ¶¶ 31(a) and (c). The burden shifts to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the criminal conduct concerns. An applicant has the burden to refute an established allegation or prove a mitigating condition, and the burden of disproving it never shifts to the government.

Appellant has raised by his testimony Criminal Conduct Mitigating Conditions (CC MC) ¶ 32 (a) "so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment"; CC MC ¶ 32(c) "evidence that the person did not commit the offense"; and CC MC ¶ 32(d) "there is evidence of successful rehabilitation, including but not limited to the passage of time without recurrence of criminal activity, remorse, or restitution, job training or higher education, good employment record, or constructive community involvement". Applicant provided false information to the security adjudicator in August 2008, only a few months ago. The criminal action was recent, deliberate and not under any unusual circumstance. The criminal actions seriously cast doubt on his judgment, reliability, and trustworthiness. The false and misleading letters he provided were an attempt to show his finances in a positive light. This false conduct could recur at any time Applicant determined he had to show a positive image of himself. Applicant admitted he provided the false letters but he intended to provide an explanatory cover letter. His explanation lacked credibility. The wording of his response to the SOR and the ten false letters can only lead to the conclusion he acted deliberately with the intent to deceive. Since the crime happened recently, the passage of time is not sufficient to show that the acts are unlikely to recur and no longer cast doubt on his reliability and trustworthiness. I am convinced by a preponderance of the evidence that Applicant deliberately intended to deceive the security adjudicator when he provided her with false and misleading creditor letters. Applicant has not established that his actions were just an administrative error and that he is successfully rehabilitated. Applicant has not mitigated or refuted the criminal conduct security concerns alleged under Guideline J.

“Whole Person” Analysis

Under the whole person concept, the Administrative Judge must evaluate an applicant’s security eligibility by considering the totality of the applicant’s conduct and all the circumstances. An 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) 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 a security clearance must be an overall common sense 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 considered that Applicant has served in the active or Reserve Navy for almost twenty years. Applicant has paid some of his delinquent debts but not all of them. He does not have a concrete plan for paying his remaining delinquent debts. He has acted irresponsibly towards his finances by not inquiring about all of his debts and by not following through on attempts to reach creditors for account information and payment plans. This indicates that he may be irresponsible towards the obligation to safeguard classified information. Applicant's lack of concrete management of his finances indicates poor self control, lack of judgment, and responsible action. He deliberately provided false and misleading information to a security adjudicator with the intent to deceive her into believing that his debts had been paid in full. Deliberately providing of false and misleading information to the government is a violation of federal criminal law. Overall, on balance the record evidence leaves me with serious questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the security concerns arising from financial considerations, personal conduct, and criminal conduct.

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

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c Against Applicant Subparagraph 1.d For Applicant Subparagraph 1.e For Applicant Subparagraph 1.f For Applicant Subparagraph 1.g Against Applicant Subparagraph 1.h Against Applicant Subparagraph 1.i: Against Applicant Subparagraph 1.j For Applicant Subparagraph 1.k Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant Subparagraph 2.b: Against Applicant Subparagraph 2.c: Against Applicant Subparagraph 2.d: Against Applicant Subparagraph 2.e: Against Applicant Subparagraph 2.f: Against Applicant Subparagraph 2.g: Against Applicant Subparagraph 2.h: Against Applicant Subparagraph 2.i: Against Applicant Subparagraph 2.j: Against Applicant

Paragraph 3, Guideline J: AGAINST APPLICANT

Subparagraph 3.a: Against Applicant

CONCLUSION

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

_________________ THOMAS M. CREAN Administrative Judge