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ISCR Case 12-02213.h1 — CASE

ISCR Case 12-02213.h1granted

Case Headnote

ISCR Case No. 12-02213.h1

grantedDec 17, 2014· Hon. Mark W. Harvey· hearing

Summary

A 35-year-old customer service representative was granted a public trust position despite allegations under Guideline F (Financial Considerations) concerning 20 delinquent medical debts totaling $21,725. The Statement of Reasons specifically cited these collection or charged-off debts or judgments.

The decision to grant the clearance was based on several mitigating factors. The judge determined that the applicant's financial difficulties stemmed primarily from circumstances beyond her control, specifically unemployment and medical issues.

Furthermore, the applicant demonstrated a current ability to manage her expenses responsibly and a consistent track record of paying her current debts. She also expressed a clear commitment to repay her outstanding delinquent debts once her financial situation improves. Based on her demonstrated reliability and responsible financial behavior, the applicant's eligibility for the public trust position was granted.

Why the Applicant Prevailed

The applicant's financial difficulties were largely due to circumstances beyond her control, including unemployment and medical issues.
She has a track record of paying current debts and managing her expenses responsibly.
The applicant expressed a commitment to repay her delinquent debts when her financial situation improves.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)raisedHistory of Not Meeting Financial Obligations

Mitigating

AG ¶ 20(a)appliedBehavior Happened so Long Ago or Occurred Under Circumstances Unlikely to Recur
AG ¶ 20(b)appliedConditions That Resulted in Financial Problems Were Largely Beyond the Person's Control
AG ¶ 20(d)appliedGood-faith Effort to Repay Overdue Creditors

Key Rule Quoted

“The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, the person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to sensitive duties is clearly consistent with the interests of national security.”
— Regulation ¶ C6.1.1.1.

Procedural Posture

SOR issuedMay 7, 2014
Answer filedJun 7, 2014
Hearing heldNov 20, 2014Applicant waived her right to 15 days of notice.
Decision dateDec 17, 2014

Cite For

Mitigating Conditions Under Guideline F for Financial Considerations
Impact of Medical Issues on Financial Stability
Consideration of Current Financial Management in Security Clearance Decisions

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: granted

The applicant faced financial concerns due to 20 delinquent collection or charged-off medical debts totaling $21,725, primarily resulting from unemployment and medical issues. The judge found that the applicant's financial difficulties were largely beyond her control and that she had a track record of managing her current expenses, leading to a decision in her favor regarding eligibility for a public trust position.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	20 delinquent collection or charged-off medical debts or judgments totaling $21,725. $21,725	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(b) conditions largely beyond the person’s control; acted responsibly	Claimed Financial Event Outside Control Claimed Other

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: ) ) ------------------- ) ADP Case No. 12-02213 ) ) Applicant for Public Trust Position

For Government: Daniel F. Crowley, Esq., Department Counsel For Applicant: Pro se

12/17/2014 __________

STATEMENT OF CASE

__________

Harvey, Mark, Administrative Judge:

Applicant’s statement of reasons (SOR) alleges 20 delinquent collection or charged-off medical debts or judgments totaling $21,725. Her debts resulted from unemployment, underemployment, and medical problems. Her pay is low, and she does not work full time. She was unable to pay any of her SOR debts; however, she is able to pay her current expenses. She promised to pay her SOR debts when her financial circumstances improve. She has a track record of paying her current debts and expenses. Financial considerations concerns are mitigated. Eligibility for a public trust position is granted.

Statement of the Case

On October 20, 2011, Applicant signed an Electronic Questionnaires for Investigations Processing (e-QIP) (SF 86). (GE 1) On May 7, 2014, the Department of Defense (DOD) issued an SOR to Applicant, pursuant to Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended, and modified; DOD Regulation 5200.2- R, Personnel Security Program, dated January 1987, as amended (Regulation); and the adjudicative guidelines (AG) as revised by the Under Secretary of Defense for Intelligence on August 30, 2006, which became effective on September 1, 2006. The SOR alleges trustworthiness concerns under Guideline F (financial considerations). (HE 2) The SOR detailed reasons why DOD Consolidated Adjudications Facility (CAF) was unable to find that it is clearly consistent with the national interest to grant or continue Applicant’s eligibility to occupy a public trust position, which entails access to sensitive information. (HE 2) the DOD CAF recommended referral to an administrative judge to determine whether such access to sensitive information should be granted, continued, denied, or revoked.

On June 7, 2014, Applicant provided a response to the SOR allegations. (HE 3) On October 3, 2014, Department Counsel was ready to proceed. On October 9, 2014, the case was assigned to me. On November 7, 2014, Defense Office of Hearings and Appeals (DOHA) issued a hearing notice, setting the hearing for November 20, 2014. The hearing was held as scheduled. Applicant waived her right to 15 days of notice of the date, time, and place of the hearing and asked to proceed with her hearing without delay. (Tr. 15-16) At the hearing, Department Counsel offered five exhibits. (Tr. 19) Applicant did not object to GE 1, 3-5; however, she objected to consideration of Applicant’s 2011 credit report because it included debts from 2001, which she believed were irrelevant. (Tr. 19; GE 2) I overruled her objection and indicated it was admitted to show a history of delinquent debt, but would give it limited weight because of the staleness of some of the debts. (Tr. 20-21) Applicant provided 11 exhibits, which were admitted without objection. (Tr. 21-23; AE A-K) On December 4, 2014, I received the transcript of the hearing.

Findings of Fact1

In her Answer to the SOR, Applicant admitted that she had multiple medical debts arising from emergency medical treatment. She did not specifically address each of the SOR allegations. Her admissions are accepted as findings of fact.

Applicant is a 35-year-old customer service representative employed by a defense contractor to assist with medical records for military personnel. (Tr. 5, 7, 24) She has worked for the defense contractor for one year as a temporary worker and for two years as a part-time employee. (Tr. 8, 25) She is currently working 32 hours a week. (Tr. 25) She currently receives $13 an hour. (Tr. 33) In 2013, her pay was $12.67 an hour; her monthly income was $1,520; and her net monthly pay after deductions was $1,140. (Tr. 33; GE 3)2

In 1998, Applicant graduated from high school. (Tr. 5-6) She attended a technical college for one semester. (Tr. 6) She has not served in the military. (Tr. 5) She married in November 2014, and she has a four-year-old-child. (Tr. 7) There is no evidence of reportable criminal offenses, alcohol or drug abuse, or violations of her employment rules. Her husband is a “stay-at-home dad,” and he watches her daughter while Applicant is at work. (Tr. 26)

Financial Considerations

Applicant’s history of delinquent debt is documented in her October 14, 2011 SF 86, and three credit reports, SOR response, and hearing transcript. (GE 1-5, HE 2, 3) Her SOR alleges 20 delinquent collection or charged-off medical debts or judgments totaling $21,725.

Applicant’s October 19, 2011 credit report alleges one school loan related judgment for $4,349 from her attendance at a beauty school, a second judgment for $1,784 for the same debt, and two medical debts referred to a collection attorney for $3,360 and $1,087. (Tr. 35-36; GE 2) It also shows four accounts designated as “pays as agreed” and 16 medical debts being collected by the same company, totaling $10,872. (GE 2)

Applicant’s June 5, 2013 credit report alleges the same two judgments as in the 2011 credit report for $4,349 and $1,784, but not the two medical debts referred to a collection attorney for $3,360 and $1,087. (GE 3) It describes 11 medical debts being collected by the same company, totaling $10,059. (GE 3)

Applicant’s September 16, 2014 credit report alleges the same two judgments as in the 2011 and 2013 credit reports for $4,349 and $1,784, but not the two medical debts referred to a collection attorney for $3,360 and $1,087 in the 2011 credit report. (GE 5) It depicts six medical debts being collected by the same company totaling $5,357. (GE 5)

Applicant was diagnosed with Graves disease in 2004. (Tr. 18, 27) She was unemployed from 2005 to 2007 because she was unable to work. (Tr. 28-29) Aside from the two judgments, the debts on her 2014 credit report were the result of medical treatments she received from 2007 to 2009. (Tr. 29) After 2009, she had medical insurance from Medicaid. (Tr. 30) She went to the emergency room on several occasions. (Tr. 27) In March 2011, she was surgically treated with a thyroidectomy. (Tr. 27-28; AE A) She is currently hypothyroid and is receiving medication to manage her symptoms. (AE A) Her symptoms include heart palpitations, tremors, frequent bowel movements, loss of muscle mass, and weakness. (Tr. 27-28; AE K)

Applicant has one credit card, which is current and not in arrears. (Tr. 30-31) Her September 16, 2014 credit report indicates this credit card is in pays as agreed status. (Tr. 32; GE 5)

Applicant was a debt collector several years ago, and she understands budgeting and credit reports. (Tr. 34) She has not had formal credit counseling. (Tr. 34) She had insufficient income to make payments to address her SOR debts. (Tr. 36) She is receiving food stamps. (Tr. 36) She had substantial dental bills, which consumed most of her discretionary funds. (Tr. 37) Her mother gave her a car, but it often needs repairs. (Tr. 35, 39) Her husband is also going to require some dental work, which will delay resolution of her SOR debts. (Tr. 37) She paid some non-SOR debts and plans to pay her SOR debts when able to do so. (Tr. 34-37)

Applicant explained her financial situation as follows:

I’ve not incurred any new debts and I live within my means. I do not live lavishly. I do admit I am poor because I work part-time but I do live within a budget. I am the sole provider for my daughter of [four years] and my husband. . . . Most of my debt is from 2007-2009 and those debts will be resolved . . . . (Tr. 18)

Character Evidence

Applicant’s supervisor, friends, a retired Army lieutenant colonel, and coworkers, provided nine statements supporting her continued access to sensitive information. (AE B-J) They describe her as diligent, professional, positive, compassionate, deeply caring for her family, handles stress well, patient, helpful, trustworthy, and responsible. (AE B- J)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a [public trust position].” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Government’s authority to restrict access to classified information applies similarly in the protection of sensitive, unclassified information. As Commander in Chief, the President has the authority to control access to information bearing on national security or other sensitive information and to determine whether an individual is sufficiently trustworthy to have access to such information. See Id. at 527.

Positions designated as ADP I and ADP II are classified as “sensitive positions.” Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3. “The standard that must be met for . . . assignment to sensitive duties is that, based on all available information, the person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to sensitive duties is clearly consistent with the interests of national security.” Regulation ¶ C6.1.1.1. Department of Defense contractor personnel are afforded the right to the procedures contained in the Directive before any final unfavorable access determination may be made. See Regulation ¶ C8.2.1.

When evaluating an applicant’s suitability for a public trust position, an administrative judge must consider the disqualifying and mitigating conditions in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

A person who seeks access to sensitive 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 sensitive information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of sensitive information.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant which may disqualify the applicant from being eligible for access to sensitive information. See Egan, 484 U.S. at 531. “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). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s suitability for a public trust position. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her access to sensitive information].” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 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). “[S]ecurity clearance [or trustworthiness] determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

The protection of the national security and sensitive records is of paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to [sensitive] information will be resolved in favor of national security.” Section 7 of Executive Order (EO) 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.”

ANALYSIS

Financial Considerations

AG ¶ 18 articulates the trustworthiness 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 [sensitive] information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.

AG ¶ 19 provides two disqualifying conditions that could raise a trustworthiness concern and may be disqualifying in this case: “(a) inability or unwillingness to satisfy debts;” and “(c) a history of not meeting financial obligations.” In ISCR Case No. 08- 12184 at 7 (App. Bd. Jan. 7, 2010), the Appeal Board explained:

It is well-settled that adverse information from a credit report can normally meet the substantial evidence standard and the government’s obligations under [Directive] ¶ E3.1.14 for pertinent allegations. At that point, the burden shifts to applicant to establish either that [he or] she is not responsible for the debt or that matters in mitigation apply.

(internal citation omitted). Applicant’s history of delinquent debt is documented in her credit reports and hearing record. Applicant’s SOR alleges 20 delinquent collection or charged-off medical debts or judgments totaling $21,725. The Government established the disqualifying conditions in AG ¶¶ 19(a) and 19(c), requiring additional inquiry about the possible applicability of mitigating conditions.

Five mitigating conditions under AG ¶ 20 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;3 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.

The Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s eligibility [for a public trust position], there is a strong presumption against the grant or maintenance of a [public trust position]. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising [trustworthiness] concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in [public trust position] decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to [sensitive] information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

AG ¶¶ 20(a) to 20(c) are applicable. Applicant’s debts the result of unemployment, underemployment, dental, and medical problems. Some of the debts listed on her 2011 SOR were generated in 2001 and by 2014 were taken off of her credit report. Her two judgments are duplications of each other. According to her 2014 credit report, she owes six delinquent medical debts totaling $5,357 and a judgment for $4,349, for a delinquent debt total of $9,706. She paid some non-SOR debts. Applicant provided evidence that she established and maintained contact with some of her creditors.4

A recent Appeal Board decision illustrates the analysis for applying AG ¶¶ 20(a) and 20(b). In ISCR Case No. 09-08533 (App. Bd. Oct. 6, 2010), the applicant had $41,000 in delinquent credit card debt and defaulted on a home loan generating a $162,000 delinquent debt. Id. at 2. That applicant filed for bankruptcy the same month the Administrative Judge issued her decision. Id. at 1-2. The applicant in ISCR Case No. 09-08533 was recently divorced, had been unemployed for 10 months, and had childcare responsibilities. Her former husband was inconsistent in his payment of child support to her. The Appeal Board determined that AG ¶ 20(a) was “clearly applicable (debt occurred under such circumstances that it is unlikely to recur and [the debt] does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment)” even though that applicant’s debts were unresolved at the time the Administrative Judge’s decision was issued. Id. at 3. The Appeal Board also decided that the record evidence raised the applicability of AG ¶ 20(b) because of the absence of evidence5 of irresponsible behavior, poor judgment, unreliability, or lack of trustworthiness. Id. at 4.

Similarly, in ISCR Case No. 08-06567 at 3 (App. Bd. Oct. 29, 2009) the Appeal Board addressed a situation where an applicant, who had been sporadically unemployed and lacked the ability to pay his creditors, noting that “it will be a long time at best before he has paid” all of his creditors. The applicant was living on unemployment compensation at the time of his hearing. The Appeal Board explained that such a circumstance was not necessarily a bar to having access to classified information stating:

However, the Board has previously noted that an applicant is not required to be debt-free nor to develop a plan for paying off all debts immediately or simultaneously. All that is required is that an applicant act responsibly given his [or her] circumstances and develop a reasonable plan for repayment, accompanied by “concomitant conduct,” that is, actions which evidence a serious intent to effectuate the plan. See ISCR Case No. 07- 06482 at 3 (App. Bd. May 21, 2008).

ISCR Case No. 08-06567 at 3 (App. Bd. Oct. 29, 2009). The applicant in ISCR Case No. 08-06567 used his limited resources to (1) resolve some of his debts; (2) had a repayment plan for the remaining debts; and (3) took “reasonable actions to effectuate that plan.” Id. The Appeal Board remanded the Administrative Judge’s decision because it did not “articulate a satisfactory explanation for his conclusions,” emphasizing the Administrative Judge did “not explain[] what he believes that applicant could or should have done under the circumstances that he has not already done to rectify his poor financial condition, or why the approach taken by applicant was not ‘responsible’ in light of his limited circumstances.” Id.

Applicant has not accrued any new delinquent debt since obtaining her present employment in 2011. There is no evidence of irresponsible behavior, poor judgment, unreliability, or lack of trustworthiness. Her illness, loss of employment, and underemployment are circumstances largely beyond her control. She understands what she must do to establish and maintain her financial responsibility.6

Applicant admitted responsibility for and took reasonable and responsible actions to resolve as much of her debts as was possible based on her circumstances. There are clear indications the problem is being resolved and is under control. Her efforts are sufficient to fully mitigate financial considerations trustworthiness concerns.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a public trust position 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 public trust position must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. AG ¶ 2(c). I have incorporated my comments under Guideline F in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment.

Applicant is a 35-year-old customer service representative employed by a defense contractor to assist with medical records for military personnel. She is currently working 32 hours a week. She receives $13 an hour and her gross monthly pay is about $1,500. She married in November 2014, and she has a four-year-old-child. Her husband is a “stay-at-home dad,” and he watches her daughter while Applicant is at work.

Nine character references provided statements supporting her continued access to sensitive information. They lauded her as an exceptional employee, who is diligent, professional, positive, compassionate, deeply caring for her family, handles stress well, patient, helpful, trustworthy, and responsible. There is no evidence of reportable criminal offenses, alcohol or drug abuse, or violations of her employment rules. She is sufficiently mature to understand and comply with her public trust responsibilities. There is every indication that she is loyal to the United States, the DOD, and her employer.

Applicant is credited with admitting responsibility for her delinquent debts on her SF 86. Her illness, loss of employment, and underemployment caused her to have financial problems. These are all circumstances largely beyond her control. The Appeal Board has addressed a key element in the whole-person analysis in financial cases stating:

In evaluating Guideline F cases, the Board has previously noted that the concept of meaningful track record necessarily includes evidence of actual debt reduction through payment of debts. However, an applicant is not required, as a matter of law, to establish that he has paid off each and every debt listed in the SOR. All that is required is that an applicant demonstrate that he has . . . established a plan to resolve his financial problems and taken significant actions to implement that plan. The Judge can reasonably consider the entirety of an applicant’s financial situation and his actions in evaluating the extent to which that applicant’s plan for the reduction of his outstanding indebtedness is credible and realistic. See Directive ¶ E2.2(a) (Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination). There is no requirement that a plan provide for payments on all outstanding debts simultaneously. Rather, a reasonable plan (and concomitant conduct) may provide for the payment of such debts one at a time. Likewise, there is no requirement that the first debts actually paid in furtherance of a reasonable debt plan be the ones listed in the SOR.

ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008) (internal citations and quotation marks omitted).

Applicant understands what she needs to do to establish and maintain her financial responsibility. She has paid all of the debts that have occurred while she has been employed. She took reasonable actions under her particular financial circumstances to address her delinquent debts. Her overall history shows a “meaningful track record” of debt repayment. I am confident she will continue her establishment and maintenance of her financial responsibility, and pay her delinquent SOR debts when she is able to do so.7 I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude financial considerations concerns are mitigated. Eligibility for a public trust position is granted.

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: FOR APPLICANT

Subparagraphs 1.a to 1.t: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a public trust position. Eligibility for access to sensitive information is granted.

_________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 Some details have been excluded in order to protect Applicant’s right to privacy. Specific information is available in the cited exhibits. 2 Applicant’s annual pay is about $19,000, and the federal poverty level for a family of three is $19,530. See Federal Poverty Guidelines, http://familiesusa.org/product/federal-poverty-guidelines. 3The Appeal Board has previously explained what constitutes a “good faith” effort to repay overdue creditors or otherwise resolve debts: In order to qualify for application of [the “good faith” mitigating condition], an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term “good-faith.” However, the Board has indicated that the concept of good-faith “requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.” Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy) in order to claim the benefit of [the “good faith” mitigating condition]. (internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)).

4 “Even if Applicant’s financial difficulties initially arose, in whole or in part, due to circumstances outside his [or her] control, the Judge could still consider whether Applicant has since acted in a reasonable manner when dealing with those financial difficulties.” ISCR Case No. 05-11366 at 4 n.9 (App. Bd. Jan. 12, 2007) (citing ISCR Case No. 99-0462 at 4 (App. Bd. May 25, 2000); ISCR Case No. 99-0012 at 4 (App. Bd. Dec. 1, 1999); ISCR Case No. 03-13096 at 4 (App. Bd. Nov. 29, 2005)). A component is whether he or she maintained contact with creditors and attempted to negotiate partial payments to keep debts current. 5 Applicant has the burden of proving the applicability of any mitigating conditions, and the burden to disprove a mitigating condition never shifts to the Government. 6The Appeal Board has indicated that promises to pay off delinquent debts in the future are not a substitute for a track record of paying debts in a timely manner and otherwise acting in a financially responsible manner. ISCR Case No. 07-13041 at 4 (App. Bd. Sept. 19, 2008) (citing ISCR Case No. 99- 0012 at 3 (App. Bd. Dec. 1, 1999)). 7Of course, the Government can re-validate Applicant’s financial status at any time through credit reports, investigation, and additional interrogatories. Approval of access to sensitive information now does not bar the Government from subsequently revoking it, if warranted. “The Government has the right to reconsider [trustworthiness] significance of past conduct or circumstances in light of more recent conduct having negative [trustworthiness] significance.” ISCR Case No. 10-06943 at 4 (App. Bd. Feb. 17, 2012). Violation of a promise made in a [trustworthiness] context to pay legitimate debts also raises judgment concerns under Guideline E, and may support future revocation of a public trust position. An administrative judge does not have “authority to grant an interim, conditional, or probationary clearance.” ISCR Case No. 10-06943 at 4 (App. Bd. Feb. 17, 2012) (citing ISCR Case No. 10-03646 at 2 (App. Bd. Dec. 28, 2011)). See also ISCR Case No. 04-03907 at 2 (App. Bd. Sep. 18, 2006) (stating, “The Board has no authority to grant [a]pplicant a conditional or probationary [public trust position] to allow her the opportunity to have a [public trust position] while she works on her financial problems.”). This footnote does not imply that this Applicant’s public trust position is conditional.