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ISCR Case 09-00847.h1 — CASE

ISCR Case 09-00847.h1denied

Case Headnote

ISCR Case No. 09-00847.h1

deniedNov 13, 2009· Hon. Philip S. Howe· hearing

Summary

A 52-year-old defense contractor was denied a security clearance under Guidelines E (Personal Conduct) and F (Financial Considerations). The denial stemmed from undisclosed financial delinquencies totaling $24,955 and a lack of candor in his security clearance application.

The applicant admitted to not disclosing his financial delinquencies on the SF-86, attributing it to an oversight, a claim the judge found unpersuasive. While several of the applicant's debts, including a credit card, mortgage, two loans to the same creditor, a bank debt, a department store debt, and a military credit, were current, the applicant failed to provide objective evidence to verify the current status of all his debts.

The judge determined that the applicant did not offer sufficient evidence to mitigate the financial concerns and demonstrated a pattern of non-disclosure. This raised questions about his reliability and trustworthiness, ultimately leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant admitted to having multiple delinquent debts totaling $24,955.
He failed to provide objective evidence to verify the current status of his debts.
The applicant did not disclose his financial delinquencies on the SF 86, claiming it was an oversight, which the judge found unpersuasive.

Conditions Referenced

Disqualifying

F.1.araisedInability or Unwillingness to Satisfy Debts
F.1.craisedA History of Not Meeting Financial Obligations
E.2.araisedDeliberate Omission, Concealment, or Falsification of Relevant Facts

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedJun 12, 2009
Answer filedJul 12, 2009Applicant requested decision on written record.
Hearing held—
Decision dateNov 13, 2009

Cite For

Failure to Disclose Financial Delinquencies Under Guideline E
Lack of Candor in Security Clearance Applications Under Guideline F
Insufficient Evidence to Mitigate Financial Concerns 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 the personal conduct concerns related to the failure to disclose delinquent debts on the security clearance application. The applicant admitted to the omission but claimed it was an oversight, which the judge did not find credible, leading to a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant did not disclose his financial delinquencies. Applicant admitted the allegations as set forth in subparagraph 2.a of the SOR. Then, in his Answer he claims it was a mere oversight on his part when he did not make the requested disclosure.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Financial	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—

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 against the applicant on all financial allegations under Guideline F, citing a total of eight delinquent debts amounting to $24,955. The applicant's claims of having resolved these debts were not substantiated with documentation, leading to a conclusion that the financial concerns were not mitigated.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant's credit card debt of $1,644 is current $1,644	Against Applicant	Credit Card Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	Applicant's mortgage payment of $1,000 is current $1,000	Against Applicant	Mortgage or Home Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.c	Applicant's two loan debts to the same creditor of $4,015 and $5,201 are current $4,015	Against Applicant	Personal Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.d	Applicant's two loan debts to the same creditor of $4,015 and $5,201 are current $5,201	Against Applicant	Personal Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.e	Applicant's bank debt payment of $48 is paid and the account is repaid $48	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.f	Applicant's bank debt of $5,927 is current $5,927	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.g	Applicant's debt to a large department store chain of $2,100 is current $2,100	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.h	Applicant's $5,000 debt on a military credit is current $5,000	Against Applicant	Unspecified Financial	Admitted	(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.

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. 09-00847 SSN: ------------------ ) ) Applicant for Security Clearance )

For Government: Ray T. Blank, Jr., Esquire, Department Counsel For Applicant: Pro Se

November 13, 2009 ______________

STATEMENT OF CASE

______________

HOWE, Philip S., Administrative Judge:

On September 22, 2008, Applicant submitted his electronic version of the Security Clearance Application (SF 86) (e-QIP). On June 12, 2009, the Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines F and E. 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 within the Department of Defense for SORs issued after September 1, 2006.

Applicant answered the SOR in writing on July 12, 2009. Applicant requested his case be decided on the written record in lieu of a hearing. On August 3, 2009, Department Counsel submitted the Department's written case. A complete copy of the file of relevant material (FORM) was provided to the Applicant on August 3, 2009. He was given the opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant received the FORM on August 11, 2009. Applicant did not file a Response to the FORM within the 30-day time allowed that would have expired on September 10, 2009. I received the case assignment on October 9, 2009. Based upon a review of the complete case file, pleadings, and exhibits, eligibility for access to classified information is denied

FINDINGS OF FACT

Applicant admitted all of the allegations in the SOR. He explained that his delinquent debts listed in Paragraph 1 were current or paid, and the failure to disclose his financial delinquencies in the SF 86, as alleged in Paragraph 2, was an “oversight.”

Applicant is 52 years old and married. He works for a defense contractor. He has worked for this employer since June 2008. (Items 2 and 4)

The SOR lists eight delinquent debts. These debts total $24,955. The earliest delinquency date is 2003. Applicant’s Answer states his credit card debt of $1,644 is current (subparagraph 1.a);his mortgage payment of $1,000 is current (subparagraph 1.b); his two loan debts to the same creditor of $4,015 and $5,201 are current (subparagraphs 1.cand 1.d); his bank debt payment of $48 is paid and the account is repaid (subparagraph 1.e); his bank debt of $5,927 is current (subparagraph 1.f); his debt to a large department store chain of $2,100 is current (subparagraph 1.g); and his $5,000 debt on a military credit is current (subparagraph 1.h). Applicant did not submit any documents to verify that his Answers were supported by objective financial evidence. The credit reports from October 11, 2008, and May 28, 2009, list all these delinquent debts as due and owing. (Items 6-9)

Applicant was sent two sets of interrogatories asking for further information on his delinquent debts. The March 18, 2009, interrogatories requested information about a debt consolidation loan Applicant stated he obtained six years ago. Applicant did not disclose the requested information about the debts included in the loan or proof that his payments were current on that loan. Applicant also failed to provide copies of canceled checks paying these delinquent debts, recent statements from creditors, verification of all sources of income, and other items requested in the interrogatories. Applicant did provide a personal financial statement. This statement showed Applicant has a net remainder income monthly of $1,051.16, and owned two late model expensive automobiles. It did not list the individual delinquent debts as set forth in the SOR or their current status. The personal financial statement did refer to an attachment concerning a “debt consolidation” debt in the amount of $11,265.52. However, there was no attachment to Applicant’s personal financial statement which explained the “debt consolidation” debt. Applicant has not provided any documents verifying the current status of his delinquent debts. (Items 6-9) Applicant answered the SF 86 Question 28, subsections (a) and (b), with “No” responses on September 22, 2008. Question 28.a asked Applicant if he had been more than 180 days delinquent on any debt in the past seven years. Question 28.binquired if Applicant currently was delinquent more than 90 days on any debt. Applicant admitted the allegations in subparagraph 2.a of the SOR, but claimed it was a mere “oversight” that he did not answer the questions with full disclosure of his delinquent debts. Applicant certified at the end of the SF 86 that his answers to all questions, including Question 28, are “true, complete, and correct to the best of” his knowledge. His answers were not true and correct as they pertain to his delinquent debts. (Items 2, 4)

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, the administrative judge applies the guidelines 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(c), the entire process is a conscientious scrutiny of a number of variables known as the Awhole-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[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.

According to Directive & E3.1.14, the government must present evidence to establish controverted facts alleged in the SOR. Under Directive & E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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.

Section 7 of Executive Order 10865 provides that decisions shall be Ain 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).

ANALYSIS

Guideline F, Financial Considerations

The security concern relating to the guideline for Financial Considerations is set out in AG ¶ 18:

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.

The guideline at AG ¶ 19 contains nine disqualifying conditions that could raise security concerns. From these nine conditions, two conditions are applicable to the facts found in this case:

(a) inability or unwillingness to satisfy debts; and

From 2003 to the present, Applicant accumulated eight delinquent debts totaling $24,955 that are unpaid or unresolved.

The guideline in AG ¶ 20 contains six conditions that could mitigate security concerns arising from financial difficulties. None of the mitigating conditions have any applicability because Applicant continuously and deliberately failed to provide any requested documentation except his personal financial statement. That document did not show that he resolved by any means the specific debts set forth in the SOR. He did not meet his burden of proof to show he resolved his delinquent debts. Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern pertaining to 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 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.

The following will normally result in an unfavorable clearance action or administrative termination of further processing for clearance eligibility:

(a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, and cooperation with medical or psychological evaluation; and,

(b) refusal to provide full, frank and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination.

AG ¶ 16 describes seven disqualifying conditions under the Personal Conduct guideline. One of them could raise a security concern and be disqualifying in this case:

(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.

Applicant did not disclose his financial delinquencies. Applicant admitted the allegations as set forth in subparagraph 2.a of the SOR. Then, in his Answer he claims it was a mere oversight on his part when he did not make the requested disclosure. When compared to his lack of disclosure in the interrogatories, his explanation is not persuasive or believable.

In AG ¶ 17 seven mitigating conditions are listed. After a careful review of the facts, I conclude none of them apply to Applicant’s case. Reviewing those conditions, I compared them to the facts in this case. I concluded Applicant did not make a prompt and good-faith effort to disclose he debts. His lack of disclosure was not done on the advice of counsel. These omissions are not minor or infrequent. Applicant has not taken steps to reduce vulnerability to coercion, nor obtained counseling to relieve stress or change his behavior on this issue. The information about his delinquent debts is substantiated. There is no relevance to the mitigating condition about association with persons involved in criminal activities. Therefore, none of the seven mitigating conditions have any relevance or applicability to Applicant’s case.

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 relevant 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.

I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. Applicant was an adult when he incurred the debts. He was an adult when asked to disclose information about the debts. He has not disclosed any persuasive objective documentary evidence to address each of the delinquent debts specifically listed in the SOR. He ignored repeated requests in the interrogatories submitted to him to supply such proof. Furthermore, he failed to disclose his delinquent debts in answering Question 28 on the SF 86. Applicant shows a pattern of refusing to disclose his delinquent debts in the SF 86 and in his uninformative responses to the two interrogatories sent to him. He seeks a security clearance from the government, but will not cooperate and provide requested information.

What action, if any, Applicant has taken to resolve his delinquent debt is not known from the available evidence. His refusal to answer questions about these matters leaves him vulnerable to pressure, coercion, exploitation, or duress based on the magnitude of his financial obligations and his desire for secrecy. His lack of action continues to this day, and is obviously voluntary. His inaction will continue based on his past performance. Applicant displayed a lack of good judgment incurring the debts while purchasing two expensive late-model cars. Applicant now compounds his predicament by willfully refusing to disclose financial information the government needs to make an informed decision on his security clearance request. The burden of proof is on Applicant to show why the mitigating conditions under both guidelines should apply to him. He failed in that effort. Any doubt is resolved against him and in favor of national security, in accordance with the Directive ¶ E2.2.2.

Overall, the record evidence leaves me with questions and substantial doubts as to Applicant's eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant did not mitigate the security concerns arising under the guideline for Financial Considerations. He did not mitigate the security concerns under the guideline for Personal Conduct. I conclude the “whole- person” concept against Applicant.

FORMAL FINDINGS

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 to 1.h: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

CONCLUSION

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

_________________ PHILIP S. HOWE Administrative Judge