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ISCR Case 08-05387.h1 — CASE

ISCR Case 08-05387.h1denied

Case Headnote

ISCR Case No. 08-05387.h1

deniedDec 18, 2008· Hon. Robert Tuidier· hearing

Summary

A 37-year-old electronics technician, employed by a defense contractor, was denied a security clearance under Guideline F, Financial Considerations. The denial stemmed from a history of significant delinquent debts totaling approximately $64,930. Among the specific allegations was a $1,353 judgment in favor of a credit card company.

The applicant admitted to these multiple delinquent debts but failed to provide sufficient documentation of efforts to resolve his financial obligations. The adjudicator noted that the financial problems were recent and not isolated incidents.

Ultimately, the applicant did not provide adequate evidence of financial responsibility or efforts to mitigate the security concerns raised by his financial history, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant admitted to multiple delinquent debts totaling approximately $64,930.
The applicant failed to provide documentation of efforts to resolve his financial obligations.
The applicant's financial problems were recent and not isolated, raising concerns about his reliability and judgment.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)raisedA 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 classified information.”

Procedural Posture

SOR issuedJun 23, 2008
Answer filedJul 16, 2008Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decision based on written record.
Decision dateDec 18, 2008

Cite For

Failure to Mitigate Financial Considerations Under Guideline F
Significant History of Delinquent Debts as a Disqualifying Factor
Lack of Documented Efforts to Resolve Financial Obligations as a Basis for Denial

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 multiple financial concerns under Guideline F, including a significant history of delinquent debts totaling approximately $64,930. While some debts were admitted and one judgment was noted as satisfied, the applicant failed to provide sufficient evidence of financial responsibility or mitigation, leading to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a–1.d	4 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant			—	—	—
1.e	a judgment of $1,353 in favor of a credit card company $1,353	For Applicant	Judgment Against Applicant	Admitted	—	—	—
1.f–1.v	17 sub-charges — specific text not stated in this decision (9 against, 1 for the applicant).	Mixed			—	—	—

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: ) ) XXXXXXXXXX, XXXXX ) ISCR Case No. 08-05387 SSN: XXX-XX-XXXX ) ) Applicant for Security Clearance )

For Government: Eric Borgstrom, Esquire, Department Counsel For Applicant: Pro Se

December 18, 2008 __________

STATEMENT OF CASE

__________

TUIDER, Robert J., Administrative Judge:

Applicant failed to mitigate Guideline F (Financial Considerations) security concerns. Clearance is denied.

Statement of the Case

On January 17, 2008, Applicant submitted an Electronic Questionnaires for Investigations Processing (e-QIP).1 On June 23, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to him, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended, modified and revised.2 The SOR alleges security concerns under Guideline F (Financial Considerations). The SOR detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for him, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

On July 16, 2008, Applicant responded to the SOR allegations, and elected to have his case decided on the written record in lieu of a hearing. A complete copy of the file of relevant material (FORM), dated August 30, 2008, was provided to him, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation.3 Applicant’s submitted a response to the FORM dated October 22, 2008. The case was originally assigned to another administrative judge on November 14, 2008, and due to caseload considerations was reassigned to me on November 18, 2008.

FINDINGS OF FACT

In his responses to the SOR, Applicant admitted all the allegations in SOR ¶¶ 1.a. – 1.e., 1.g. – 1.i., 1.l., 1.q., 1.t. – 1.v., and stated he lacked sufficient information to admit or deny ¶¶ 1.f., 1.j. – 1.k., 1.m. – 1.p., 1.r. – 1.s. His admissions are incorporated herein as findings of fact. After a thorough review of the evidence of record, I make the following additional findings of fact.

Applicant is a 37-year-old electronics technician, who has been employed by a defense contractor since September 1996. He was awarded an associate’s degree in January 1997. Applicant has been legally separated from his wife since September 1996. He has a seven-year-old daughter by another woman. Applicant seeks a security clearance in conjunction with his employment.

Applicant’s background investigation addressed his financial problems and included the review of his June 2008 and January 2008 credit bureau reports.4

Applicant’s response to the FORM failed to address his delinquent debts in a meaningful way. Although he discussed various attempts to address a number of debts, he failed to provide documentation regarding these efforts and any documented success in resolving his debts. He did state that “[n]one of this explanation is meant to be an excuse for the failure to meet all of my financial obligations but I am now fully committed to putting my financial life back in order beginning with my student loan and my income taxes.”5 He spoke of living pay check to pay check and planned to look for a second job. His monthly take home pay reflected a total of $2,172, and total monthly bills of $2,384. This total did not reflect expenses for food, laundry, utilities, gasoline. These additional items bring his monthly debts/living expenses to an amount exceeding $2,600.

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 controlling 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.

In the decision-making process, the Government has the initial burden of establishing controverted facts alleged in the SOR by “substantial evidence,”6 demonstrating, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant’s access to classified information. Once the Government has produced substantial evidence of a disqualifying condition, the burden shifts to Applicant to produce evidence “to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and [applicant] has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15. The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).7 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.

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 Executive Order 12968 (Aug. 2, 1995), Section 3.

ANALYSIS

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the relevant security concern is under Guideline F (Financial Considerations). AG ¶ 18 articulates the security concern relating to financial problems:

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 ¶ 19 provides two Financial Considerations Disqualifying Conditions that could raise a security concern and may be disqualifying in this case, “(a) inability or unwillingness to satisfy debts,” and “(c) a history of not meeting financial obligations.” Applicant’s history of delinquent debt is documented in his credit reports, and his SOR response.

Department Counsel noted in his FORM that despite Applicant’s admission of the debt in SOR ¶ 1.e. of a judgment of $1,353 in favor or a credit card company, his June 2008 credit bureau report lists this judgment as satisfied.8 He further noted that Applicant admitted to the debts listed in SOR ¶¶ 1.l. and 1.q., which are both identical. This creditor in these two allegations is a bank and the debt is in the approximate amount of $1,031. Applicant’s January 2008 credit bureau report lists this account as having been opened in September 2000 and as having a DLA of November 2002.9 Except as noted above, the Government established by Applicant’s admissions or evidence presented all of the debts alleged in the SOR.

Together, Applicant’s 20 delinquent debts excluding SOR ¶¶ 1.e. and 1.q. total approximately $64,930. There is no documentary evidence of any payments or payment arrangements made on these accounts.

Five Financial Considerations Mitigating Conditions under AG ¶¶ 20(a)-(e) 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, 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.

Considering the record evidence as a whole,10 I conclude that none of the mitigating conditions apply. Applicant’s sparse favorable information fails to raise the applicability of any of the mitigating conditions.

Applicant’s evidence is not sufficient to show he has dealt responsibly with his financial obligations before, or especially after receipt of the SOR. Based on his security clearance application, Applicant has continuously worked for his current employer since 1996. He presented no documentary evidence to show paid debts, settlements, documented negotiations, payment plans, budgets, or financial assistance/counseling. Considering the record as a whole, I conclude the debts, except the satisfied debt and the duplicate debts, discussed above, are still valid and delinquent debts, and that Applicant is responsible for them. Applicant’s financial history and lack of favorable evidence preclude a finding that he has established a track record of financial responsibility, or that he has taken control of his financial situation. Based on the available evidence, his financial problems are recent, not isolated, and are likely to be a concern in the future. He has not carried his burden of proving his financial responsibility. His overall financial behavior casts doubt on his current reliability, trustworthiness, and good judgment.

WHOLE PERSON CONCEPT

Under the whole person concept, the Administrative Judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the 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.

The ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole person concept. AG ¶ 2(c).

Applicant’s employment record working for a government contractor weighs in his favor. There is no evidence of any security-related violations. Aside from his delinquent debts (which is a civil, non-criminal issue), he is a law-abiding citizen. These factors show some responsibility and mitigation.

The evidence against mitigating Applicant’s conduct is more substantial. He has a significant history of delinquent debt going back to at least 2002. As an applicant for a security clearance, he was or should have been well aware of his financial responsibilities, and that his failure to be financially responsible would raise security clearance concerns.

He provided little or no documented effort to resolve his delinquent debts prior to or after receipt of the SOR. After weighing the disqualifying and mitigating conditions, and all the facts and circumstances, in the context of the whole person, I conclude he has not mitigated the security concerns pertaining to financial considerations.

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.d. Against Applicant Subparagraph 1.e.: For Applicant Subparagraphs 1.f. – 1.p.: Against Applicant Subparagraph 1.q.: For Applicant Subparagraphs 1.r – 1.v.: Against Applicant

CONCLUSION

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

____________________________ ROBERT J. TUIDER Administrative Judge

FOOTNOTES

1 Item 3.

2 On Aug. 30, 2006, the Under Secretary of Defense (Intelligence) published a memorandum directing application of revised Adjudicative Guideline to all adjudications and other determinations made under the Directive and Department of Defense (DoD) Regulation 5200.2-R, Personnel Security Program (Regulation), dated Jan. 1987, as amended, in which the SOR was issued on or after Sep. 1, 2006. 3 The DOHA transmittal letter is dated September 4, 2008. Applicant signed the receipt for the DOHA transmittal letter on September 12, 2008. The DOHA transmittal letter informed Applicant that he had 30 days after receipt of the FORM to submit information. 4 Items 4 and 5.

5 Item 2. 6 See Directive ¶ E3.1.14. “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.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “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).

7 “The Administrative Judge [considers] the record evidence as a whole, both favorable and unfavorable, evaluate[s] Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and decide[s] whether Applicant ha[s] met his burden of persuasion under Directive ¶ E3.1.15.” ISCR Case No. 04-10340 at 2 (App. Bd. July 6, 2006). 8 Item 4.

9 Item 5. 10 See ISCR Case No. 03- 02374 at 4 (App. Bd. Jan. 26, 2006) (citing ISCR Case No. 02-22173 at 4 (App. Bd. May 26, 2004)). When making a recency analysis for AG ¶ 20(a), all debts are considered as a whole.