ISCR Case No. 10-10997.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) XXXXXXX, Xxxxxxx Xxxxxx (Xxxxxx)) ISCR Case No. 10–10997 ) Applicant for Security Clearance )

For Government: Braden M. Murphy, Esquire, Department Counsel For Applicant: Pro se

06/11/2012 ______________

______________

METZ, John Grattan, Jr., Administrative Judge:

Based on the record in this case, I grant Applicant’s clearance.

On 20 August 2011, the Defense Office of Hearings and Appeals (DOHA) sent Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline F, Financial Considerations. Applicant timely answered the SOR, requesting a hearing. DOHA assigned the case to me 4 November 2011, and I convened a hearing 5 December 2011. DOHA received the transcript 13 December 2011.

Applicant denied the SOR allegations, except for SOR 1.a and 1.c-1.h. She is a 39-year-old lead test engineer employed by a defense contractor since June 2006. She is the recently divorced mother of two daughters, ages 15 and 17.

Applicant has effectively been a single parent for many years. Her husband has a drug problem and worked only sporadically during their marriage, contributing negligible amounts to the family budget. He would also steal from family funds. They were separated for many years before he finally agreed to a divorce on the condition that he pay no alimony or child support. He has reneged on his agreement to shoulder his share of the marital debt.

The SOR alleges, and Government exhibits (GE 3-4) substantiate, 15 delinquent debts totaling nearly $31,000. Applicant admits six debts (1.c-1.h) totaling nearly $21,000. She also admitted filing for Chapter 7 bankruptcy protection in April 2002, and being discharged in bankruptcy in February 2003.

Applicant attributes her financial problems to periods of unemployment and underemployment she experienced from June 2002 until she obtained her current job, as well as the lack of financial support from her neer-do-well husband during the marriage and after their separation and divorce.

Applicant was employed full time from March 1999 to April 2001, but lost that job when the company lost its federal contract. She obtained another full-time job in April 2001, only to have the company go out of business in June 2002. She was unemployed from June 2002 to April 2003, when she moved to a different state to do mission work (AE C). When the mission ended, she was unemployed from October 2005 to May 2006, when she obtained a part-time job that she held until she got her current job in August 2006.

Applicant has been unable to locate the judgment creditor at SOR 1.b (GE 4). Applicant was unaware of the creditor at SOR 1.c until she did some research and discovered that it was for an unpaid medical bill. She plans to pay the bill soon. Applicant documented a repayment plan for the creditor for SOR 1.d and 1.e to pay $222 monthly for six months. She corroborated her October and November 2011 payments (AE A). The debt will be paid in full by March 2012 (Tr. 44). She confirmed that the creditor at SOR 1.f had closed the account and would not accept payment (Answer). Applicant is working with the creditors for SOR 1.g and 1.h to resolve the debts. Both debts are for automobile repossessions on cars driven by her ex-husband. He had agreed to make the payments on the cars but did not.

Record evidence (GE 2, 3, 7; Answer) shows that Applicant began repaying the education loans at SOR 1.i and 1.j before the SOR was issued, and paid them off by June 2011. The total amount of the loans was over $30,000, although the delinquent amounts alleged in the SOR were just $4,000. Applicant’s Answer also documented full payment of SOR 1.k, 1.l, and 1.m in May 2011. Debt 1.n appears to be part of debt 1.m. SOR 1.o is for a more recent education expense. The collection agent charges 18% interest for a repayment plan, so Applicant is saving money to make a lump-sum payoff. Applicant has never had insurance with the creditor for SOR 1.p, and the creditor can find no record of Applicant in their files, so Applicant is trying to get the entry removed from her credit report.

Applicant has been recognized by her employer for the quality of her work (AE B). In addition, she runs her own non-profit organization that takes young adults on mission trips (AE C). Her annual salary is about $100,000. She has a budget that reflects the payments she is currently making on her delinquent debts.

The adjudicative guidelines (AG) list factors for evaluating a person’s suitability for access to classified information. Administrative judges must assess disqualifying and mitigating conditions under each issue fairly raised by the facts and situation presented. Each decision must also reflect a fair, impartial, and commonsense consideration of the factors listed in AG ¶ 2(a). Any one disqualifying or mitigating condition is not, by itself, conclusive. However, specific adjudicative guidelines should be followed where a case can be measured against them, as they represent policy guidance governing access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant adjudicative guideline is Guideline F (Financial Considerations).

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to applicant to refute, extenuate, or mitigate the Government’s case. Because no one has a right to a security clearance, the applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Therefore, the Government has a compelling interest in ensuring each applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government.3

The Government established a case for disqualification under Guideline F. However, Applicant mitigated the security concerns. Applicant has a history of financial difficulties going back several years. Although she still has significant debts to address, she has made substantial progress on her delinquent accounts and appears well on her way to resolving her remaining debts.

The mitigating factors for financial considerations provide significant help to Applicant. While her financial difficulties are both recent and multiple, they are much less likely to recur now that Applicant is divorced. The problems are largely due to circumstances beyond her control (unemployment, underemployment, neer-do-well husband), and she has been working for some time to improve her financial situation.6

Applicant’s efforts to address her debts have been significant. While debt 1.c remains to be paid, debts 1.d-1.f will be paid by March 2012, freeing up additional funds to address her remaining debt. Satisfying the education debt at SOR 1.g and 1.h is really more significant than resolving the remaining $4,000 alleged in the SOR because the original debt was over $30,000. Debts 1.k-1.m have been paid. Applicant is saving to make a lump-sum payment on debt 1.o, and debt 1.p appears to not be her debt.

The only three debts not addressed are the judgment at SOR 1.b that Applicant has been unable to locate—or to confirm with the court that the judgment is still valid—and the two automobile repossessions that Applicant is working to resolve now that her ex-husband has reneged on his agreement to address these debts. Those two debts are likely to settle for figures that Applicant can manage on her current salary.

Although Applicant does not appear to have received any financial counseling, she has made great progress on her own and she has resolved, or is in the process of resolving, all her delinquent debt. The payments that she made were largely in a timely, good-faith manner, and she can be expected to address her remaining debt equally well. Accordingly, I resolve Guideline F for Applicant. Consideration of the whole-person factors yields no different result.

Paragraph 1. Guideline F: FOR APPLICANT

Subparagraphs a-p: For Applicant

Under the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance granted.

JOHN GRATTAN METZ, JR Administrative Judge

Consisting of the transcript (Tr.), Government’s exhibits (GE) 1-7, and Applicant’s exhibits (AE) A-C.

DOHA acted under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of Defense (DoD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DoD on 1 September 2006. See, Department of the Navy v. Egan, 484 U.S. 518 (1988). ¶ 19(a) inability or unwillingness to satisfy debts; ( c) a history of not meeting financial obligations;

¶ 20(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur . . .

¶ 20(b) the conditions that resulted in the financial problem were largely beyond the person’s control . . . and the individual acted responsibly under the circumstances;

¶ 20(c) the person has received or is receiving counseling for the problem and there are clear indications that the problem is being resolved or is under control;

¶ 20(d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.