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ISCR Case 14-00450.h1 — CASE

ISCR Case 14-00450.h1denied

Case Headnote

ISCR Case No. 14-00450.h1

deniedAug 1, 2014· Hon. Richard A. Cefola· hearing

Summary

A 44-year-old applicant, employed by a non-government entity, was denied a security clearance under Guidelines E (Personal Conduct) and F (Financial Considerations). The denial stemmed from significant financial indebtedness and a history of personal conduct issues involving felony charges and dishonesty.

The applicant was indebted to 15 creditors for over $49,000 in past-due debts, with approximately $1,131 of this amount being disputed. Beyond financial concerns, the applicant had a record of legal issues, including a 2002 felony charge for "Shoot . . . at Occupied Vehicles," which resulted in a conviction for "Misdemeanor Brandishing a Firearm." In 2004, he faced two felony and two misdemeanor charges, pleading guilty to "Sexual Battery" and "Indecent Exposure."

Further concerns arose from a pattern of falsification. In a 2003 interview, the applicant denied actions that could be misconstrued as a sexual advance. Later, in August 2013, he twice falsified his e-QIP by failing to disclose the 2002 felony charge, the 2004 felony charges, and the 2002 firearms-related offense. The judge concluded that the applicant's failure to resolve debts and consistent pattern of falsification, with the last willful falsification occurring less than a year prior to the decision, raised serious doubts about his reliability and trustworthiness.

Why the Applicant Was Denied

Applicant has over $50,000 in past-due debts that he has not addressed.
Applicant demonstrated a pattern of dishonesty and rule violations, including falsifying information on his e-QIP and during interviews.
The applicant's last willful falsification occurred less than a year prior to the decision.

Conditions Referenced

Disqualifying

F.19.araisedInability or Unwillingness to Satisfy Debts
F.19.craisedHistory of Not Meeting Financial Obligations
E.16.araisedDeliberate Omissions, Concealment, or Falsification of Relevant Facts
E.16.braisedDeliberately Providing False or Misleading Information
E.16.draisedPattern of Dishonesty or Rule Violations

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedMar 14, 2014
Answer filedApr 15, 2014Supplemented on May 5, 2014
Hearing held—
Decision dateAug 1, 2014

Cite For

Denial Based on Significant Financial Indebtedness Under Guideline F
Pattern of Dishonesty Impacting Security Clearance Eligibility Under Guideline E
Importance of Full Candor in Security Clearance Applications

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 all allegations under Guideline E, citing a lack of candor regarding past criminal conduct and a pattern of dishonesty. The applicant's failure to disclose relevant information on his e-QIP and during interviews raised significant security concerns, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	In 2002, Applicant admits that he was charged with a felony, “Shoot . . . at Occupied Vehicles,” and was found guilty of “Misdemeanor Brandishing a Firearm.	Against Applicant	Questionable Judgment General	—	Admitted	—	—	—
2.b	In October of 2004, Applicant was charged with two felonies and two misdemeanors. He pled guilty to the two misdemeanors: “Sexual Battery” and “Indecent Exposure.”	Against Applicant	Questionable Judgment General	—	Admitted	—	—	—
2.c.1	In an October 2003 interview, related to Paragraph 2.b. above, Applicant falsified material facts in that he stated he did not do anything which might have been misconstrued by the complaining victim as a sexual advance.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	—	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.c.2	In August 2013, Applicant falsified material facts in response to “Section 22 - Police Record” on his e-QIP. He failed to disclose that he was charged with a felony in 2002, and with two felonies in 2004.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.d	In August 2013, Applicant again falsified material facts in response to “Section 22 - Police Record” on his e-QIP. He failed to disclose that he was charged with an offense related to firearms in 2002.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(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 significant financial concerns under Guideline F, noting that the applicant had approximately $49,000 in outstanding debts to 15 different creditors. Despite the applicant's claims of working to pay off these debts, the judge concluded that the applicant had not mitigated the security concerns, resulting in a decision against the applicant.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant is indebted to 15 different creditors for past due debts totaling about $49,000. $49,000	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b–1.k	10 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant			—	—	—
1.l	Applicant denies these two debts, totaling about $1,131. $1,131	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.m–1.t	8 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant			—	—	—

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. 14-00450 ) ) Applicant for Security Clearance )

For Government: Julie R. Mendez, Esquire, Department Counsel For Applicant: Pro se

August 1, 2014

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on August 12, 2013. On March 14, 2014, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines F and E 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 answered the SOR in writing on April 15, 2014, supplementing that answer on May 5, 2014, and requested an Administrative Determination by an administrative judge. Department Counsel issued a File of Relevant Material (FORM) on May 29, 2014. Applicant failed to respond to the FORM. The case was assigned to me on July 21, 2014. Based upon a review of the pleadings and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

In his Answer and Supplemental Answer to the SOR, Applicant admitted the factual allegations in Paragraphs 1.a.~ 1.k., 1.m.~1.o, 1.q.~1.t., 2.a., and 2.b. of the SOR, with explanations. He denied the factual allegations in Paragraphs 1.l., 1.p., and 2.c.1. of the SOR. Applicant failed to answer Paragraphs 2.c.2 and 2.d.; and as such, I consider them denied.

Applicant is 44 years of age, and is employed by a “Non-government” employer. (Item 5 at pages 5 and 10.)

Guideline F - Financial Considerations

1.a.~1.k., 1.m.~1.o., and 1.q.~1.t. In his Supplemental Answer to the SOR, Applicant admits he is indebted to 15 different creditors for past due debts totaling about $49,000. He offers little further in this regard, except to say “I am working to pay off all my debts, I will not stop until they are paid in full.” I find these debts to be outstanding.

1.l. and 1.p. In his Supplemental Answer to the SOR, Applicant denies these two debts, totaling about $1,131. These allegations are supported by a fairly recent September 13, 2013 credit report. (Item 9 at pages 9 and 10.) He offers little further in this regard, except to say, “I am currently disputing” these debts. I find these debts to be outstanding.

Guideline E - Personal Conduct

2.a. In 2002, Applicant admits that he was charged with a felony, “Shoot . . . at Occupied Vehicles,” and was found guilty of “Misdemeanor Brandishing a Firearm.” (Item 10 at page 1.)

2.b. In October of 2004, Applicant was charged with two felonies and two misdemeanors. (Item 10 at pages 1–2.) He pled guilty to the two misdemeanors: “Sexual Battery” and “Indecent Exposure.” (Id.)

2.c.1. In an October 2003 interview, related to Paragraph 2.b. above, Applicant falsified material facts in that he stated he did not do anything which might have been misconstrued by the complaining victim as a sexual advance. In an October 28, 2013, interview he admitted hugging the complaining victim and slipping his hand down her pants. (Item 7 at page 5.)

2.c.2. In August 2013, Applicant falsified material facts in response to “Section 22 - Police Record” on his e-QIP. He failed to disclose that he was charged with a felony in 2002, and with two felonies in 2004. (Item 5 at page 24.)

There are two separate Paragraphs 2.c.’s alleged; and as such, I ave designated the first one as 2.c.1 and the second one as 2.c.2. 2.d. In August 2013, Applicant again falsified material facts in response to “Section 22 - Police Record” on his e-QIP. He failed to disclose that he was charged with an offense related to firearms in 2002. (Item 5 at page 24.)

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. (AG Paragraph 2.) 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. AG Paragraph 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of the 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(c), “a history of not meeting financial obligations@ may raise security concerns. Applicant has significant past-due debts, which he has not yet resolved. I can find no countervailing Mitigating Condition that is applicable here.

Guideline E - Personal Conduct

The security concern for Personal Conduct is set out in AG Paragraph 15:

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.

The guideline notes several conditions that could raise security concerns. Under Subparagraph 16(a), “deliberate omissions, concealment, or falsification of relevant facts from any personnel security questionnaire . . . or similar form” may raise security concerns. Here, Applicant was not candid about his past criminal conduct on his August 2013 e-QIP. Under Subparagraph 16(b), “deliberately providing false or misleading information concerning relevant facts to an . . . investigator, security official . . . or other official government representative” may also raise security concerns. Here, Applicant was not candid about his past criminal conduct during his October 2003 interview. Again, I find no countervailing mitigating condition that is applicable here. Applicant’s last willful falsification was less than a year ago. I also find “a pattern of dishonesty or rule violations” under Subparagraph 16(d)(2), when his falsifications are coupled with his 2002 and 2004 misdemeanor convictions.

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 the circumstances. Under AG 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. The record evidence leaves me with questions and doubts as to his eligibility and suitability for a security clearance. Applicant has over $50,000 in past-due indebtedness that he has yet to address. He was also not candid with the government, and has demonstrated a pattern of rule violations. For these reasons, I conclude Applicant has not mitigated the security concerns under the whole-person concept arising from his Financial Considerations and Personal Conduct.

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: AGAINST APPLICANT

Subparagraphs 1.a.~1.t. Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a.~2.d. 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.

Richard A. Cefola Administrative Judge