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ISCR Case 09-03233.h1 — CASE

ISCR Case 09-03233.h1denied

Case Headnote

ISCR Case No. 09-03233.h1

deniedApr 23, 2010· Hon. Darlene Lokey Anderson· hearing

Summary

A 56-year-old Quality Assurance Inspector, who had held a Top Secret clearance since 1984, was denied a security clearance due to financial considerations and a history of criminal conduct. The denial was based on Guideline F (Financial Considerations), with the Statement of Reasons detailing multiple unpaid debts.

These debts included amounts of $6.00, $12.00, $158.00, $2,803.00, $4,056.00, and $3,953.00 owed to various creditors, a medical facility, a bank, and a department store. The most substantial debt was $64,328.00 owed to a lender for a home foreclosure, bringing the total unpaid debts to over $75,000.

The denial was based on the applicant's significant unpaid debts, which indicated financial irresponsibility, and a lack of sufficient evidence demonstrating efforts to resolve these debts or achieve financial rehabilitation. Additionally, the applicant's history of criminal conduct involving the sexual molestation of his daughter raised serious concerns about his judgment and trustworthiness, ultimately leading to the conclusion that he posed a security risk.

Why the Applicant Was Denied

The applicant has significant unpaid debts totaling over $75,000, indicating financial irresponsibility.
The applicant failed to provide sufficient evidence of efforts to resolve his debts or demonstrate financial rehabilitation.
The applicant's history of criminal conduct raises serious concerns about his judgment and trustworthiness.

Conditions Referenced

Disqualifying

19(a)raisedInability or Unwillingness to Satisfy Debts
19(c)raisedA History of Not Meeting Financial Obligations
31(a)raisedA Single Serious Crime or Multiple Lesser Offenses
31(c)raisedAllegation or Admission of Criminal Conduct

Key Rule Quoted

“The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk.”

Procedural Posture

SOR issuedSep 9, 2009
Answer filedSep 25, 2009Applicant elected to proceed without a hearing.
Hearing held—Determined on written record.
Decision dateApr 23, 2010

Cite For

Financial Irresponsibility as a Disqualifying Factor Under Guideline F
Criminal Conduct Raising Security Concerns Under Guideline J
Insufficient Evidence of Financial Rehabilitation Leading to Denial of Clearance

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 that the applicant was financially overextended, with multiple unpaid debts totaling over $75,000, which raised significant security concerns under Guideline F. Despite the applicant's claims of filing for Chapter 7 bankruptcy, the judge determined that there was insufficient evidence to demonstrate financial responsibility or rehabilitation, leading to a decision against the applicant.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	A debt owed to a creditor in the amount of $6.00 remains unpaid. $6	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	A debt owed to a creditor in the amount of $12.00 remains unpaid. $12	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.c	A debt owed to a medical facility in the amount of $158.00 remains unpaid. $158	Against Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.d	A debt owed to a bank for a credit card in the amount of $2,803.00 remains unpaid. $2,803	Against Applicant	Credit Card Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.e	A debt owed to a department store in the amount of $4,056.00 remains unpaid. $4,056	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.f	A debt owed to a creditor in the amount of $3,953.00 remains unpaid. $3,953	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.g	The most significant debt, a debt owed to a lender in the amount of $64,328.00 remains unpaid. This debt is for a home foreclosure. $64,328	Against Applicant	Mortgage or Home Loan Debt	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. 09-03233 SSN: ------------------------ ) ) Applicant for Security Clearance )

For Government: Alison O’Connell, Department Counsel For Applicant: Pro se

April 23, 2010

______________

STATEMENT OF CASE

______________

LOKEY ANDERSON, Darlene D., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on October 15, 2008. (Government Exhibit 5.) On September 9, 2009, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as amended) issued a Statement of Reasons (SOR) to the Applicant, which 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 the Applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

The Applicant responded to the SOR in writing on September 25, 2009, and he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) to the Applicant on November 13, 2009. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on November 25, 2009, and submitted a reply dated December 16, 2009, with attachments. The case was assigned to the undersigned for resolution on February 5, 2010. Based upon a review of the case file, pleadings and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

The Applicant is 56 years old and married. He is employed by a defense contractor as an Quality Assurance Inspector and is seeking to obtain a security clearance in connection with his employment.

The Government opposes the Applicant's request for a security clearance, on the basis of allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR:

Paragraph 1 (Guideline F - Financial Considerations) The Government alleges that the Applicant is ineligible for clearance because he is financially overextended and at risk of having to engage in illegal acts to generate funds.

The Applicant indicates that he has held a Top Secret security clearance since 1984. The Applicant admits that he is indebted to seven separate creditors totaling more than $75,000.00. (Government Exhibit 4.) All of the debts remain unpaid. Applicant states that he has retained an attorney to file a Chapter 7 Bankruptcy petition on his behalf that will include all of the debts set forth in the SOR. (Government Exhibits 4 and 6.) Applicant attributes his excessive indebtedness to two periods of unemployment from between May 2002 to October 2002, and November 1999 to June 2000. However, credit reports of the Applicant dated November 4, 2008, and August 2, 2009, reflect that the debts in the SOR did not become delinquent until 2003 or thereafter. Applicant has been steadily employed since October 2002. (Government Exhibits 5 and 12.)

The following debts remain owing. A debt owed to a creditor in the amount of $6.00 remains unpaid. A debt owed to a creditor in the amount of $12.00 remains unpaid. A debt owed to a medical facility in the amount of $158.00 remains unpaid. A debt owed to a bank for a credit card in the amount of $2,803.00 remains unpaid. A debt owed to a department store in the amount of $4,056.00 remains unpaid. A debt owed to a creditor in the amount of $3,953.00 remains unpaid. The most significant debt, a debt owed to a lender in the amount of $64,328.00 remains unpaid. This debt is for a home foreclosure. (Government Exhibit 7). Applicant contends that he had entered into a lease option agreement with tenants who were to make the house payments directly to the lender for three years, and then pay the Applicant the remaining principal owed on the property. Applicant states that the tenants reneged on the contract. Applicant has failed to provide the court will a copy of this documentation. Applicant also claims that when he learned of the default, he contacted the bank and tried to resolve the matter but was unsuccessful. There is no supporting documentary evidence of this. There is no evidence of any efforts to pay or other wise resolve the debts. Applicant also contends that he long ago destroyed all of his existing credit cards to alleviate any further accumulation of debt. Applicant claims that the debts set forth in the SOR will be included in his Chapter 7 bankruptcy petition, and will be discharged. He submits no documentary evidence to support his assertions. Applicant submits a copy of a letter from his attorneys dated December 9, 2009, notifying him of an upcoming 341 meeting. There is also a Notice of Chapter 7 Bankruptcy Case, meeting of the Creditors and Deadlines, from a United States Bankruptcy Court. This documentation, however, does not show that the debts listed in the SOR were included in the Applicant’s Bankruptcy petition nor does it show that the debts in the SOR were discharged.

Applicant received the FORM on November 25, 2009, and was given the opportunity to respond to the FORM concerning the present status of his bankruptcy case, which is critical in this case. (See file). He submitted two letters, one from his attorney, the other from the court, notifying him of a creditors meeting. (Applicant’s Reply to the FORM). There is insufficient evidence in the record to demonstrate that he has resolved his current indebtedness. There is no documentary evidence that supports the fact that he has included the debts listed in the SOR in his bankruptcy petition, nor is there evidence that the debt have been discharged. There is no track record of systematic payments on any of his accounts, thus, his delinquent debts remain outstanding. Furthermore, there is no evidence in the record as to whether he has sufficient income at this time, even if the debts are considered discharged, to pay his current monthly expenses in a timely manner.

Paragraph 2 (Guideline J - Criminal Conduct) The Government alleges that the Applicant is ineligible for clearance because he has engaged in criminal activity that creates doubt about a person’s judgment, reliability, and trustworthiness.

In June 1984, the Applicant sexually molested his, then, ten year old daughter. The details of the incidents described by the Applicant are inconsistent. Applicant stated that he and his daughter were home alone together when his daughter initiated sexual conduct with him. According to the Applicant in his personal subject interview dated January 14, 2009, and certified by the Applicant on July 2, 2009, his daughter touched and maturbated his penis without provocation. Applicant could not explain why his daughter touched his penis or why he allowed her to touch and masturbate his penis. He did admit, however, that he allowed her to do it again on two further occasions. Applicant claims that all three of these incidents occurred within a one month period. (Government Exhibits 4 and 7).

Applicant provides a different account of the situation in his sworn statement dated December 2003. He stated that he molested a twelve year old girl by touching her inappropriately. He did not disclose that the girl he molested was his daughter, and that she was only ten years old at the time of the molestation, not twelve. (Government Exhibit 12).

Four years later, in 1988, when his daughter became angry with him, she reported her father’s sexual abuse to the local authorities. The Applicant was subsequently arrested, booked, and charged with Lewd and Lascivious Acts with a Child Under 14. He was found guilty, sentenced to counseling, placed on home detention for one year and given five years probation. He is obligated to register as a Sex Offender on a quarterly basis with the state. (Government Exhibit 11 and 13.) Applicant states that the only other persons aware of his sexual offense are his wife and his son. His employer, friends and other family members are unaware that he sexually abused his daughter.

Following these incidents, the Applicant’s entire immediate family attended counseling for one year. The Applicant received extensive counseling and rehabilitation in order to effectively deal with his problems. He had three years of individual counseling on an average of once a month, and attended support group meetings to help himself understand why it occurred in the first place. He has confronted his demons, is remorseful and ashamed, and committed to never engaging in any sexual misconduct again.

POLICIES

Enclosure 2 of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case:

Guideline F (Financial Considerations)

18. The Concern. 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.

Conditions that could raise a security concern:

19.(a) inability or unwillingness to satisfy debts;

19.(c) a history of not meeting financial obligations.

Conditions that could mitigate security concerns:

None.

Guideline J (Criminal Conduct)

30. The Concern. 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. Conditions that could raise a security concern:

31.(a) a single serious crime or multiple lesser offenses;

31.(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.

Condition that could mitigate security concerns:

32(a) so much time has elasped since the criminal behavior happened, or it happened under such usual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.

In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in evaluating the relevance of an individual’s conduct, the Administrative Judge should consider the following general factors:

a. The nature, extent, and seriousness of the conduct;

b. The circumstances surrounding the conduct, to include knowledgeable participation;

c. The frequency and recency of the conduct;

d. The individual’s age and maturity at the time of the conduct;

e. The extent to which participation is voluntary;

f. The presence or absence of rehabilitation and other permanent behavioral changes;

g. The motivation for the conduct;

h. The potential for pressure, coercion, exploitation or duress; and

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the national interest” to grant an Applicant’s request for access to classified information.

The DoD Directive states, “The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole-person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination.” The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, “Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned.”

CONCLUSION

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in instances of financial irresponsibility and criminal conduct which demonstrates poor judgment or unreliability.

It is the Government’s responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant’s conduct and the holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation, which is sufficient to overcome or outweigh the Government’s case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him a security clearance.

In this case the Government has met its initial burden of proving that the Applicant has been financially irresponsible (Guideline F), and has engaged in criminal conduct (Guideline J). This evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility.

In regard to the Applicant’s criminal conduct, I find for the Applicant. Although repulsive, egregious, detestable, and of a heinous nature, and his recollections of the events were not identical, the misconduct occurred in the distance past, over twenty years ago, and there is no evidence of recurrence. In addition, the fact that he must register in the state as a Sexual Offender on a quarterly basis, publishes this fact to all, and therefore, it is not a basis for coercion, exploitation or duress. Mitigating Condition 32(a) so much time has elasped since the criminal behavior happened, or it happened under such usual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment clearly applies. Considering all of the evidence, however, the Applicant has failed to introduce persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case. Under the circumstances, he has failed to make a good faith effort to resolve his indebtedness. He has submitted insufficient documentary evidence to support the fact that he has listed any of the debts in the SOR in his bankruptcy petition, or that they have been discharged. He did not submit a copy of the actual bankruptcy petition, nor did he respond to the FORM and provide documentation concerning the status of his delinquent debts. Other than two letters notifying him of a creditors meeting, he failed to provided relevant documentary evidence. Without more, it is impossible to determine that the Applicant has resolved his indebtedness or that he is sufficiently financially responsible for access to classified information. He has failed to demonstrate that he can properly handle his financial affairs.

Under Guideline F (Financial Considerations), Disqualifying Conditions 19.(a) inability or unwillingness to satisfy debts; and, 19.(c) a history of not meeting financial obligations apply. None of the mitigating conditions are applicable. Based upon the large amount of debt owed by the Applicant, his failure to provide sufficient documentary evidence as to why he became indebted in the first place, what he has done to resolve it, and how he has changed or reformed his past spending habits, the Applicant has failed to provide sufficient evidence of financial rehabilitation. Accordingly, I find against the Applicant under Guideline F (Financial Considerations).

The evidence in the record is void concerning the status of the delinquent debts set forth in the SOR. Furthermore, the Applicant has no favorable recommendations or sufficient documentation to support his allegations. Accordingly, I have no choice than to find that he is not sufficiently trustworthy to have access to classified information.

I have also considered the “whole-person concept” in evaluating the Applicant’s eligibility for access to classified information. Under the particular facts of this case, the totality of the conduct set forth under all of the guidelines viewed as a whole, support a whole-person assessment of poor judgement, untrustworthiness, unreliability, a lack a candor, and an unwillingness to comply with rules and regulations, and/or other characteristics indicating that the person may not properly safeguard classified information.

I have considered all of the evidence presented and it does not sufficiently mitigate the adverse information brought against him. On balance, it is concluded that the Applicant has failed to overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraph 1 of the SOR. As stated above, Paragraph 2 is found for the Applicant.

FORMAL FINDINGS

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: Against the Applicant. Subpara. 1.a.: Against the Applicant. Subpara. 1.b.: Against the Applicant. Subpara. 1.c.: Against the Applicant. Subpara. 1.d.: Against the Applicant. Subpara. 1.e.: Against the Applicant. Subpara. 1.f.: Against the Applicant. Subpara. 1.g.: Against the Applicant.

Paragraph 2: For the Applicant. Subpara. 2.a.: For the Applicant. Subpara. 2.b.: For the Applicant.

DECISION

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 a security clearance for the Applicant.

Darlene Lokey Anderson Administrative Judge