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ISCR 14-02138.h1: Guideline E security clearance hearing, denied (2015) · CASE

ISCR Case 14-02138.h1denied

Case headnote

ISCR Case No. 14-02138.h1

deniedOct 30, 2015· Hon. Marc E. Curry· hearing

Summary

A 27-year-old single man with a high school diploma and some college credits was denied a security clearance due to concerns under Guideline F (Financial Considerations). Initial allegations also included Guideline E (Personal Conduct) regarding a firearm incident during basic training and termination from a cell phone store manager position for violating company policy.

The applicant was disciplined for negligently mishandling his weapon during Army National Guard firearms training. He also incurred approximately $3,100 in delinquent debt between 2010 and 2011, as detailed in multiple allegations.

While the judge found no unmitigated personal conduct issues, the applicant failed to adequately address or mitigate his financial concerns. He did not provide sufficient evidence of having paid or making payments on his debts, leading to the denial of his security clearance.

Why the applicant prevailed

The applicant's mishandling of a firearm during basic training was not deemed a significant personal conduct issue as he completed training satisfactorily afterward.
The applicant's termination from a cell phone company was ruled not to be misconduct-related by the state labor department.

Conditions referenced

Disqualifying

AG ¶ 19(a)appliedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)appliedA History of Not Meeting Financial Obligations

Mitigating

AG ¶ 20(b)rejectedConditions That Resulted in the Financial Problem Were Largely Beyond the Person's ControlThe applicant's debts were incurred prior to his job loss and he did not specify when medical issues arose.
AG ¶ 20(c)rejectedReceived or Receiving Counseling for the ProblemThe applicant did not provide evidence of counseling or resolution of debts.
AG ¶ 20(d)rejectedGood-faith Effort to Repay Overdue CreditorsThe applicant's assertions regarding debt payments lacked corroborating evidence.

Key rule quoted

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

Procedural posture

SOR issuedNov 12, 2014
Answer filedFeb 26, 2015Applicant admitted allegations and requested a hearing.
Hearing heldAug 10, 2015
Decision dateOct 30, 2015

Cite for

Evaluation of Personal Conduct Under Guideline E
Assessment of Financial Considerations Under Guideline F
Importance of Corroborating Evidence in Mitigating Financial Concerns

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 27: “Applicant is a 27-year-old single man.”
Tenure: ~3 years: “Since August 2012, he has worked for a defense contractor as a service desk analyst.”
Delinquent debt cited: $3,010 (on a payment plan): “The SOR alleges four delinquent debts totalling $3,010.”

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found no personal conduct issues that generate a security concern for the applicant. The applicant's mishandling of a weapon during basic training and his termination from a job were not deemed to raise personal conduct concerns. Therefore, the allegations under Guideline E were ruled in favor of the applicant.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant incurred approximately $3,100 of delinquent debt between 2010 and 2011, which he failed to mitigate. The applicant's claims of having paid some debts were not supported by sufficient evidence, leading to a denial of his security clearance.

The sub-allegation breakdown is part of the Professional plan. See what it includes.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 14-02138 ) Applicant for Security Clearance )

For Government: Andrea Corrales, Esq., Department Counsel For Applicant: Pro se

10/30/2015 ______________

STATEMENT OF CASE

______________

CURRY, Marc E., Administrative Judge:

Applicant had just begun receiving firearms instruction when he mishandled his M-16 during basic training. His termination from his job with a cell phone company was not misconduct-related. Under these circumstances, I conclude that there are no personal conduct issues that generate a security concern. Conversely, Applicant’s failure to pay his delinquent debts generates a financial considerations security concern that he failed to mitigate. Clearance is denied.

Statement of the Case

On November 12, 2014, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued an SOR to Applicant detailing security concerns under Guideline E, personal conduct, and Guideline F, financial considerations. 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) implemented by the DOD on September 1, 2006. On February 26, 2015, Applicant answered the SOR, admitting the allegations and requesting a hearing. The case was assigned to me on June 8, 2015. DOHA issued a notice of hearing on July 21, 2015 scheduling the hearing for August 10, 2015. The hearing was held as scheduled. At the hearing, I received six Government exhibits (GE 1 through GE 3), and two Applicant exhibits (AE A and AE B). Also, I considered Applicant’s testimony. At the close of the hearing, I left the record open through August 24, 2015 to allow Applicant the opportunity to submit additional exhibits. (Tr. 56) He did not submit any exhibits, whereupon, the record closed. DOHA received the transcript (Tr.) on August 20, 2015.

FINDINGS OF FACT

Applicant is a 27-year-old single man. He has a high school diploma and has earned some college credits. Since August 2012, he has worked for a defense contractor as a service desk analyst. (GE 1 at 10)

In August 2010, Applicant joined the U.S. Army National Guard. (GE 1 at 16) During basic training, he was awarded non-judicial punishment for mishandling his M-16 rifle during shooting instruction. (Tr. 16) Specifically, he failed to keep it pointed down when he was not using it. He was fined $316 and ordered to perform 14 days of extra duty. (Tr. 17)

This incident occurred on the first day Applicant received firearms training. (Tr. 15) Subsequently, he completed basic training satisfactorily without any additional incidents. After completing basic training, however, Applicant decided that “the Army was not for [him].” (Tr. 16) Consequently, he quit before beginning his advanced individual training, and received an uncharacterized discharged. (GE 1 at 16)

In February 2012, Applicant was terminated from his job as the manager of a cell phone store for violating company policy governing the customer exchange of cell phones. (GE 1 at 12) Applicant filed a claim for unemployment security benefits, and his ex-employer denied the claim, asserting that his conduct was fraudulent. (AE B at 2) Applicant contended that he followed standard procedure when facilitating the cell phone exchange, consistent with how the previous manager had trained him. (AE B at 1) After conducting a hearing, the state labor department ruled that there was insufficient evidence to conclude that Applicant’s actions constituted misconduct in connection with work. (AE B at 4)

The SOR alleges four delinquent debts totalling $3,010. Subparagraphs 2.a, 2.b, and 2.d, are student loans. Subparagraph 1.cis a delinquent phone account. Applicant attributes the debts to a six-month period of unemployment between February and August of 2012. (Tr. 17-18) The SOR debts became delinquent between 2010 and 2011. (GE 8-10) Applicant also attributes the debts to medical bills triggered by a car accident in which he was involved. (Tr. 17-18) He did not specify the date that the car accident occurred.

Applicant contends that he paid the debts alleged in subparagraphs 1.a through 1.cand was making payments on the debt alleged in subparagraph 1.d. (Tr. 32) In support thereof, he provided a credit report dated June 4, 2015. Subparagraphs 1.a through 1.cwere not listed. The debt alleged in subparagraph 1.dwas listed with an outstanding balance of $408, the amount alleged in the SOR. He provided no additional evidence of debt payment.

Applicant earns approximately $4,000 monthly after taxes. This includes income from a part-time job. (Tr. 26) He has $4,000 in savings and between $800 and $1,200 in discretionary income. (Tr. 28)

POLICIES

The adjudicative guidelines list potentially disqualifying conditions and mitigating conditions. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, they are applied together with the factors listed in the adjudicative process. According to AG ¶ 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 ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ 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 for obtaining a favorable security decision.

ANALYSIS

Guideline E, Personal Conduct

Under this guideline, “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.” (AG ¶ 15)

Applicant was disciplined for negligently mishandling his weapon during his first day of firearms training while in the Army National Guard. He subsequently completed the weapons training course satisfactorily, and his basic training. He received an uncharacterized discharge only after deciding he no longer wanted to be in the military; a decision unrelated to the non-judicial punishment he received for mishandling his firearm during basic training. Under these circumstances, subparagraph 1.a does not generate a security concern.

Applicant appealed his termination from his job with a cell phone store. The state insurance board conducted a hearing and ruled in his favor, concluding that there was insufficient evidence to conclude that his actions leading to his termination constituted misconduct. I conclude that subparagraph 1.bdoes not generate a security concern.

There are no personal conduct security concerns.

Guideline F, Financial Considerations

Under this guideline, “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.” (AG ¶ 18) Between 2010 and 2011, Applicant incurred approximately $3,100 of delinquent debt. AG ¶ 19(a), “inability or unwillingness to satisfy debts,” and AG ¶ 19(c), “a history of not meeting financial obligations,” apply.

The following mitigating conditions under AG ¶ 20 are potentially applicable:

(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; and

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

Applicant incurred his debts before he lost his job with the cell phone company. Moreover, he testified that medical expenses related to a car accident contributed to his inability to pay these debts, but he did not specify when the car accident occurred. AG ¶ 20(b) does not apply.

In support of Applicant’s contention that he paid the debts listed in subparagraphs 1.a through 1.c, he submitted a credit report. Although subparagraphs 1.a through 1.cwere not listed on the credit report, it did not indicate whether Applicant had satisfied them. The absence of a debt from a credit report, alone, does not establish that the debt was paid. Absent supporting documentary evidence, assertions that a debt was paid based on its omission from a credit report has limited probative value. Similarly, Applicant’s contention that he is making payments toward the satisfaction of the debt listed in subparagraph 1.d, absent corroborating evidence, has limited probative value. Under these circumstances, neither AG ¶ 20(c), nor AG ¶ 20(d) are applicable.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a). They are as follows:

(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.

In order to mitigate the financial considerations security concern, Applicant has the burden of proof to establish payment of his delinquent debts. The minimal amount of the delinquencies does not obviate his responsibility to prove that he has paid them. Applicant did not submit sufficient corroborating evidence at the hearing, and did not submit any additional corroborating evidence when I afforded him that opportunity to do so, by leaving the record open for an additional two weeks. Under these circumstances, I conclude that Applicant has failed to mitigate the security concern.

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 E: FOR APPLICANT

Subparagraphs 1.a-1.b: For Applicant

Paragraph 2, Guideline F: AGAINST APPLICANT

Subparagraphs 1.a-1.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.

MARC E. CURRY Administrative Judge