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ISCR Case 12-10137.h1 — CASE

ISCR Case 12-10137.h1granted

Case Headnote

ISCR Case No. 12-10137.h1

grantedJan 6, 2016· Hon. Richard A. Cefola· hearing

Summary

A 57-year-old long-distance truck driver was granted a security clearance despite initial concerns under Guideline F (Financial Considerations). The Statement of Reasons cited two allegations related to unpaid state tax liens, totaling approximately $15,461, which had been paid in January 2010. These issues raised disqualifying conditions F.19.a and F.19.g.

The applicant successfully mitigated these concerns by demonstrating that the financial difficulties were largely attributable to the death of his wife and a subsequent period of unemployment. He had resolved the state tax liens more than five years prior to the clearance decision.

Furthermore, the applicant demonstrated good character and was well-respected in his community, satisfying mitigating conditions F.20.b and F.20.d. Based on the resolution of the debts and the contextual factors, the security clearance was granted.

Why the Applicant Prevailed

The applicant resolved his state tax liens totaling about $15,461 more than five years ago.
The financial issues were largely due to the death of his wife and a subsequent period of unemployment.
The applicant demonstrated good character and was well-respected in his community.

Conditions Referenced

Disqualifying

F.19.araisedInability or Unwillingness to Satisfy Debts
F.19.graisedFailure to File Annual State Income Tax Returns as Required

Mitigating

F.20.bappliedConditions That Resulted in the Financial Problem Were Largely Beyond the Person's Control
F.20.dappliedIndividual Initiated a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve Debts

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedMay 29, 2015
Answer filedJun 15, 2015
Hearing heldDec 2, 2015
Decision dateJan 6, 2016

Cite For

Mitigating Conditions Under Guideline F Related to Financial Considerations
Whole-person Concept in Security Clearance Determinations
Impact of Personal Circumstances on Financial Issues

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 judge found that the applicant had resolved his financial issues related to state tax liens, which were attributed to circumstances beyond his control, including the death of his wife and a period of unemployment. As a result, the judge ruled in favor of the applicant on all allegations under Guideline F, granting him eligibility for a security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant paid the alleged state tax liens totaling about $15,461 in January of 2010, more than five years ago. $15,461	For Applicant	Tax Unpaid	Denied	—	(b) conditions largely beyond the person’s control; acted responsibly (d) good-faith effort to repay or otherwise resolve debts	—
1.b	Applicant paid the alleged state tax liens totaling about $15,461 in January of 2010, more than five years ago. $15,461	For Applicant	Tax Unpaid	Denied	—	(b) conditions largely beyond the person’s control; acted responsibly (d) good-faith effort to repay or otherwise resolve debts	—

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. 12-10137 ) ) Applicant for Security Clearance )

For Government: Jeff Nagel, Esquire, Department Counsel For Applicant: Pro se

January 6, 2016

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on April 25, 2012. On May 29, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline F for Applicant. 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 adjudicative guidelines (AG), effective within the Department of Defense after September 1, 2006.

Applicant acknowledged receipt of the SOR on June 9, 2015. He answered the SOR in writing on June 15, 2015, and requested a hearing before an Administrative Judge. The Defense Office of Hearings and Appeals (DOHA) received the request soon thereafter, and I received the case assignment on October 29, 2015. DOHA issued a notice of hearing on November 4, 2015, and I convened the hearing as scheduled on December 2, 2015. The Government offered Exhibits (GXs) 1 through 5, which were received without objection. Applicant testified on his own behalf and submitted Exhibit (AppXs) A and B, which were received without objection. DOHA received the transcript of the hearing (TR) on December 10, 2015. The record was initially closed on December 2, 2015. Despite the record being closed, on December 18, 2015, Applicant submitted four letters of recommendation, to which Department Counsel had no objection; and as such, they were admitted into evidence as AppX C. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

FINDINGS OF FACT

In his Answer to the SOR, Applicant denied the factual allegations in Subparagraphs 1.a. and 1.b. of the SOR. He also provided additional information to support his request for eligibility for a security clearance.

Guideline F - Financial Considerations

Applicant is a 57 years old long-distance truck driver, who’s employment requires a security clearance. (TR at page 17 line 14 to page 19 line 10.) Applicant and his wife also owned a bar, but she passed away in November of 1991. (TR at page 27 line 5 to page 28 line 25 and GX 1 at page 17.) His grieving process lasted for years; and as a result, he failed to pay state taxes related to their bar. (Id.) This, coupled with a period of unemployment for a year and a half in 2008–2009, caused the alleged financial shortcomings.

1.a. and 1.b. Applicant paid the alleged state tax liens totaling about $15,461 in January of 2010, more than five years ago. (TR at page 21 line 16 to page 25 line 11, at page 26 line 19 to page 27 line 3, and at page 29 lines 1–14.) This is evidenced by documentation from his business tax representative. (AppX A.) I find for Applicant vis- a-vis these alleged state tax liens.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG Paragraph 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-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. Paragraph 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.

Under Directive Paragraph E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive Paragraph E3.1.15, the 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 applicant has the ultimate burden of persuasion as to obtaining a favorable security 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 “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).

ANALYSIS

Guideline F - Financial Considerations

The security concern relating to the guideline for Financial Considerations is set out in Paragraph 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 notes several conditions that could raise security concerns. Under Subparagraph 19(a), an “inability or unwillingness to satisfy debts@ is potentially disqualifying. Similarly under Subparagraph 19(g), “failure to file annual . . . state . . . income tax returns as required@ may raise security concerns. Applicant had significant state tax liens. However, I find two countervailing Mitigating Conditions that are applicable here. Under Subparagraph 20(b), it may be mitigating where “the conditions that resulted in the financial problem were largely beyond the person’s control (e.g. Loss of employment, . . . or a death . . . ), and the individual acted responsibly under the circumstances.” Applicant’s state tax problems were directly related to his wife’s death, and exacerbated by a lengthy period of unemployment. Under Subparagraph 20(d), it may also be mitigating where “the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.” Applicant addressed the state’s alleged tax liens more than five years ago.

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of Applicant’s conduct and all the circumstances. Under Paragraph 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.

The administrative judge should also consider the nine adjudicative process factors listed at AG Paragraph 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.

I considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. Applicant is well respected in the workplace and in the community. (AppXs B and C.) The record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For this reason, I conclude Applicant has mitigated the security concerns arising from his Financial Considerations, under the whole-person concept.

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

Subparagraph 1.a. For Applicant

Subparagraph 1.b. 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 security clearance. Eligibility for access to classified information is granted.

Richard A. Cefola Administrative Judge