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ISCR Case 08-05530.h1 — CASE

ISCR Case 08-05530.h1denied

Case Headnote

ISCR Case No. 08-05530.h1

deniedAug 19, 2009· Hon. Arthur E. Marshall, Jr.· hearing

Summary

A 43-year-old senior technician was denied a security clearance under Guideline F, Financial Considerations, primarily due to approximately $30,800 in delinquent debts and a poor to fair credit rating. Disqualifying conditions included a history of not meeting financial obligations and an inability to satisfy debts.

Specifically, the applicant admitted to a delinquent child support debt exceeding $1,100. While the applicant claimed to dispute the majority of other debts, he failed to provide sufficient documentary evidence to substantiate these claims. Furthermore, he did not demonstrate efforts to resolve his financial issues or seek financial counseling.

Although mitigating conditions such as the debts not being recent, the applicant not being responsible for the circumstances, or the applicant having initiated a good-faith effort to resolve the debts were considered, they were not found to apply. Consequently, the applicant's security clearance was denied.

Why the Applicant Was Denied

The applicant admitted to a delinquent debt of over $1,100 for child support.
The applicant failed to provide documentary evidence to substantiate his claims of disputing the majority of debts.
The applicant did not demonstrate efforts to resolve his financial issues or seek financial counseling.

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(a)rejectedThe Behavior Happened so Long Ago, Was so Infrequent, or Occurred Under Such Circumstances That It Is Unlikely to Recur
AG ¶ 20(b)rejectedThe Conditions That Resulted in the Behavior Were Largely Beyond the Person’s Control
AG ¶ 20(c)rejectedThe Person Has Received or Is Receiving Counseling for the Problem
AG ¶ 20(d)rejectedThe Individual Initiated a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve Debts

Key Rule Quoted

“The ultimate burden of persuasion is on the applicant seeking a security clearance.”

Procedural Posture

SOR issuedDec 5, 2008
Answer filedDec 18, 2008Applicant declined a hearing.
Hearing held—Applicant requested an administrative determination.
Decision dateAug 19, 2009

Cite For

Failure to Provide Evidence to Mitigate Financial Concerns Under Guideline F
Importance of Documentary Evidence in Financial Disputes
Burden of Proof Rests with the Applicant 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 F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found multiple financial concerns under Guideline F, including significant delinquent debts totaling approximately $30,800. The applicant admitted to one debt related to child support but failed to provide sufficient evidence to mitigate the concerns raised, resulting in a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a–1.j	10 sub-charges — specific text not stated in this decision (8 against, 2 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: ) ) ------------------- ) ISCR Case No. 08-05530 SSN: ----------- ) ) Applicant for Security Clearance )

For Government: Robert E. Coacher, Esq., Department Counsel For Applicant: Pro Se

August 19, 2009 ______________

STATEMENT OF CASE

______________

MARSHALL, Jr., Arthur E., Administrative Judge:

Applicant completed an Electronic Questionnaire for Investigations Processing (e-QIP) on August 27, 2007. On December 5, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) enumerating security concerns arising under Guideline F (Financial Considerations). The action 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 for SORs issued after September 1, 2006.

In a response notarized on December 18, 2008, Applicant admitted one of the nine allegations set forth in the SOR. He declined to request a hearing on the record in his response. When contacted by DOHA regarding whether he wished to have a hearing, Applicant stated he preferred an administrative determination. Department Counsel submitted a File of Relevant Materials (FORM), dated April 28, 2009, that included nine attached items. Applicant received the FORM on May 8, 2009. He did not respond to the FORM within the 30 days provided. On August 4, 2009, the Director, DOHA, forwarded the case for assignment to an administrative judge for administrative determination. I was assigned the case on that same day. Based upon a review of the case file, submissions, and exhibits, I find Applicant failed to meet his burden regarding the security concerns raised. Security clearance is denied.

FINDINGS OF FACT

Applicant is a 43-year-old senior technician. He has worked for the same defense contractor since 2003. He has a post-secondary degree in electronic engineering. Applicant is divorced. He has five children, ranging in age from 9 to 19 years old. His credit rating is “poor to fair.” Although Applicant has not received credit counseling, he states he is working to improve his credit rating and satisfy his debts.3

The SOR sets forth 10 allegations. Each allegation represents a delinquent debt identified either in Applicant’s answers to Interrogatories, dated July 15, 2008, a credit report dated May 30, 2008, or a credit report dated October 5, 2007. In responding to the SOR, Applicant only responded to the allegations by writing either “I deny” or “I admit” with no further elaboration.

In his Interrogatories, Applicant maintained that he disputed the nine delinquent debts cited in SOR allegations ¶¶ 1.a – 1.i. He produced no documentary evidence to substantiate this claim. Those allegations represent approximately $30,800 in delinquent debt. The credit reports dated April 28, 2009, and May 30, 2008, however, indicate that Applicant disputed the two delinquent accounts noted at SOR allegations ¶ 1.b (approximately $411) and ¶ 1.c (approximately $857). Applicant admitted to allegation ¶ 1.j (approximately $1,123), regarding a child support arrearage, in his SOR response.

POLICIES

When evaluating an applicant’s suitability for a security clearance, an 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. 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. An administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables known as the “whole person concept.” An 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.

The U. S. Government must present evidence to establish controverted facts alleged in the SOR. An 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 burden of proof is something less than a preponderance of evidence. The ultimate burden of persuasion is on the applicant.

A person seeking access to classified information enters into a fiduciary relationship with the U.S. Government based on trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The U.S. 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 EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). “The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.” Any reasonable doubt about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such information. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of an applicant. Nor does it reflect badly on that person’s character. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Based upon consideration of the evidence, I find Guideline F (Financial Considerations) to be the most pertinent to the case. Conditions pertaining to this adjudicative guideline that could raise a security concern and may be disqualifying, as well as those which would mitigate such concerns, are set forth and discussed below.

ANALYSIS

Guideline F – Financial Considerations

Under Guideline F, failure or an inability to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or an 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.12 The Directive sets out several potentially disqualifying conditions under this guideline.

Applicant admitted he has a delinquent debt of over $1,100 involving child support. As for the remainder of the delinquent debts at issue, although the record shows two of those nine accounts were formally disputed, Applicant failed to show he disputed any of the other credit report entries. Those entries represent almost $30,000 in delinquent debt. Such facts are sufficient to raise security concerns under financial considerations disqualifying condition (FC DC) AG ¶ 19(a) (“inability or unwillingness to satisfy debts”) and FC DC AG ¶ 19(c) (“a history of not meeting financial obligations”). With such conditions raised, the burden shifts to Applicant to overcome the case against him and mitigate security concerns.

In relying on an administrative determination after failing to provide documentary evidence or more information, Applicant presented insufficient facts to review his finances in light of the allegations. Moreover, there are insufficient facts to determine what led Applicant to become delinquent on any debt and no corroborating evidence showing how or whether he tried to dispute the alleged debts. Consequently, neither financial considerations mitigating condition (FC MC) AG ¶ 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”) nor FC MC AG ¶ 20(b) (“the conditions that resulted in the behavior 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”) applies. Further, Applicant has not received financial counseling and there is little evidence he has worked toward honoring his debts or disputing the majority of delinquent accounts noted on his credit reports, obviating the applicability of FC MC 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 FC MC AG ¶ 20(d) (“the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts”). The only evidence of Applicant-initiated efforts toward correcting his credit report is regarding SOR allegations ¶¶ 1.b - 1.c, amounting to about $1,270 of alleged debt which Applicant disputes. No other FC MCs apply.

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 an 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.

Under AG ¶ 2(c), 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. As noted above, the ultimate burden of persuasion is on the applicant seeking a security clearance.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, as well as the “whole person” factors. Applicant is a mature, educated man. In requesting an administrative determination, however, he chose to carry his burden regarding the allegations by presenting unelaborated facts and no supporting documentation. Applicant’s best advocate regarding his claim that he disputed nine of the 10 accounts at issue is Department Counsel, whose FORM includes documentary evidence that two of the more minor debts at issue were formally disputed. Otherwise, there is no corroborating documentation showing that the other accounts Applicant denies were formally disputed and no indication as to whether any progress has been made on his child support arrearage. Consequently, the 10 alleged delinquent debts at issue remain unrefuted. In light of the fact that the ultimate burden is on Applicant, financial considerations security concerns remain unmitigated. Therefore, it is not clearly consistent with national security to grant Applicant a security clearance. Clearance is denied.

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: Against Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: Against Applicant Subparagraph 1.e: Against Applicant Subparagraph 1.f: Against Applicant Subparagraph 1.g: Against Applicant Subparagraph 1.h: Against Applicant Subparagraph 1.i: Against Applicant Subparagraph 1.j: 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 a security clearance. Clearance is denied.

ARTHUR E. MARSHALL, JR. Administrative Judge

FOOTNOTES

Item 2, Transmittal Letter and Receipts at 9 (Memorandum for the Record, dated Mar. 31, 2009). Department Counsel later requested Applicant to submit a written request for an administrative determination, but no additional materials were forthcoming. FORM at 2, footnote 2. Item 6, Interrogatories, at 4. Id. See Items 5-6 (Interrogatories), Item 8 (May 2008 credit report), and Item 9 (Oct. 2007 credit report), respectively. See Items 7-8 (Apr. 2009 and May 2008 credit reports), respectively. See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995). Department of the Navy v. Egan, 484 U.S. 518, 531 (1988). ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). Id. Id. Executive Order 10865 § 7. Revised Adjudicative Guideline (AG) ¶ 18.