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ISCR Case 14-02159.h1 — CASE

ISCR Case 14-02159.h1denied

Case Headnote

ISCR Case No. 14-02159.h1

deniedDec 17, 2014· Hon. LeRoy F. Foreman· hearing

Summary

A 29-year-old federal contractor employee was denied eligibility for a public trust position due to significant financial concerns under Guideline F. The applicant faced trustworthiness issues stemming from 29 delinquent debts, which collectively exceeded $30,000. These debts included medical expenses, a judgment for early lease termination, an automobile repossession, and multiple unpaid cable and cell phone bills.

The Statement of Reasons specifically cited the judgment for lease termination, the vehicle repossession, and several instances of unpaid utility bills. Disqualifying conditions under Guideline F, paragraphs 19(a) and 19(c), were raised, indicating a pattern of financial irresponsibility and an inability or unwillingness to meet financial obligations.

The denial was based on the applicant's numerous delinquent debts, which demonstrated a lack of financial responsibility. Furthermore, the applicant had not sought financial counseling or taken substantial steps to resolve these debts. The decision concluded that the applicant's general intentions to address the debts did not constitute a credible plan for achieving financial responsibility.

Why the Applicant Was Denied

Applicant has numerous delinquent debts totaling over $30,000, indicating financial irresponsibility.
Applicant has not sought financial counseling or taken significant steps to resolve his debts.
Applicant's vague intentions to address his debts do not constitute a credible plan for financial responsibility.

Conditions Referenced

Disqualifying

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

Key Rule Quoted

“A person who seeks access to sensitive information enters into a fiduciary relationship with the Government predicated upon trust and confidence.”

Procedural Posture

SOR issuedJun 11, 2014
Answer filedAug 28, 2014
Hearing held—Applicant requested a decision on the record without a hearing.
Decision dateDec 17, 2014

Cite For

Financial Irresponsibility as a Disqualifying Factor Under Guideline F
Failure to Seek Financial Counseling as a Negative Factor in Trustworthiness Determinations
The Importance of Demonstrating a Credible Plan to Resolve Financial Issues for Mitigating Conditions

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: denied

The judge found that the applicant had numerous delinquent debts totaling over $30,000, including medical debts, a judgment for early termination of a lease, and an automobile repossession. The applicant's financial issues were deemed unresolved, and he failed to demonstrate a reasonable plan to address his debts, leading to a denial of eligibility for a public trust position.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	specific text not stated in this decision	Against Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	judgment for early termination of a lease	Against Applicant	Judgment Against Applicant	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.e	automobile repossession	Against Applicant	Auto Loan Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.f	unpaid cable bills	Against Applicant	Utility or Phone Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.n	unpaid cell phone bills	Against Applicant	Utility or Phone Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.p	unpaid cell phone bills	Against Applicant	Utility or Phone Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.r	unpaid cable bills	Against Applicant	Utility or Phone Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.bb	specific text not stated in this decision	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—

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: ) ) [Redacted] ) ADP Case No. 14-02159 ) Applicant for Public Trust Position )

For Government: Tovah A. Minster, Esq., Department Counsel For Applicant: Pro se

12/17/2014 ______________

STATEMENT OF CASE

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves trustworthiness concerns raised under Guideline F (Financial Considerations). Eligibility for a public trust position is denied.

Statement of the Case

Applicant submitted an Electronic Questionnaires for Investigations Processing (e-QIP) on November 26, 2013. On June 11, 2014, the Department of Defense (DOD) sent him a Statement of Reasons (SOR), citing trustworthiness concerns under Guideline F. DOD acted under DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); DOD Regulation 5200.2-R, Personnel Security Program (January 1987), as amended (Regulation); and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006.

Applicant received the SOR on August 11, 2014; answered it on August 28, 2014; and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on September 30, 2014. On October 6, 2014, a complete copy of the file of relevant material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on October 20, 2014, and did not respond. The case was assigned to me on December 5, 2014.

FINDINGS OF FACT

In his answer to the SOR, Applicant admitted all the allegations except SOR ¶ 1.bb, which he denied. His admissions are incorporated in my findings of fact.

Applicant is a 29-year-old employee of a federal contractor. He has worked for his current employer since July 2013. He has never held a security clearance or a public trust position.

Applicant has attended an online university since March 2010 but has not received a degree. During the past ten years, he has held various jobs in the private sector. He was unemployed from February to May 2010, July 2010 to April 2011, and March to April 2012.

Applicant married in May 2003 and divorced in April 2010. Two children were born during the marriage, ages 11 and 9, for whom Applicant is obligated to pay child support.

The SOR alleges 29 delinquent debts totaling more than $30,000. Applicant’s credit bureau report (CBR), dated December 11, 2013, (Item 5) reflects the debts in the SOR. The CBR reflects that 15 of the 29 delinquent debts are medical debts. Of the 15 medical debts, five are for less than $100. In his security clearance application, Applicant stated that he did not have medical insurance when the debts were incurred. The other debts alleged in the SOR include a judgment for early termination of a lease (SOR ¶ 1.b), an automobile repossession (SOR ¶ 1.e), and unpaid cable and cell phone bills (SOR ¶¶ 1.f, 1.n, 1.p, and 1.r).

Applicant has not sought or received financial counseling. He has not negotiated payment agreements, paid, or otherwise resolved any of the debts alleged in the SOR. In his answer to the SOR, he stated that he intended to start catching up with his most recent debts and to pursue a debt management plan to resolve his older debts.

POLICIES

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 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 entitled to the procedural protections in the Directive before any final unfavorable access determination may be made. Regulation ¶ C8.2.1. 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. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard sensitive information.

When evaluating an applicant’s suitability for a public trust position, the 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. The 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.

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 [sensitive] information will be resolved in favor of national security. The Government must present substantial evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. 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 burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). An applicant has the ultimate burden of demonstrating that it is clearly consistent with national security to grant or continue eligibility for a public trust position.

ANALYSIS

Guideline F, Financial Considerations

The concern under this guideline is set out in AG ¶ 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.

This concern is broader than the possibility that an individual might knowingly compromise sensitive information in order to raise money. It encompasses concerns about an individual’s self-control, judgment, and other qualities essential to protecting sensitive information. An individual who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding sensitive information. See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012).

Applicant’s admissions and his CBR establish two disqualifying conditions under this guideline: AG ¶ 19(a) (“inability or unwillingness to satisfy debts”) and AG ¶ 19(c) (“a history of not meeting financial obligations”).

The following mitigating conditions are potentially applicable:

AG ¶ 20(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;

AG ¶ 20(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;

AG ¶ 20(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;

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

AG ¶ 20(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.

AG ¶ 20(a) is not established. Applicant’s delinquent debts are numerous, recent, and were not incurred under circumstances making them unlikely to recur.

AG ¶ 20(b) is not established. Applicant encountered a marital breakup, three periods of unemployment, and numerous medical bills that were not covered by insurance. However, he has not acted reasonably. He has been employed since April 2012 and has worked for his current employer since July 2013. He produced no evidence that he had contacted any of his creditors or taken any significant action to resolve his debts.

AG ¶ 20(c) is not established. Applicant has not sought or received financial counseling, and his financial problems are not under control.

AG ¶ 20(d) is not established. Good faith means acting in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation. ISCR Case No. 99-0201, 1999 WL 1442346 at *4 (App. Bd. Oct. 12, 1999). Although Applicant has promised to start resolving his debts, his promise to pay his delinquent debts in the future is not a substitute for a track record of paying debts in a timely manner. ISCR Case No. 07-13041 at 4 (App. Bd. Sep. 19, 2008). A person is not required to establish resolution of every debt alleged in the SOR. He or she need only establish a plan to resolve financial problems and take significant actions to implement the plan. The adjudicative guidelines do not require that an individual make payments on all delinquent debts simultaneously, nor do they require that the debts alleged in the SOR be paid first. See ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008). Applicant’s vague aspirations to resolve his debts do not constitute a plan, and he has taken no significant steps to pay or otherwise resolve any of the debts alleged in the SOR.

AG ¶ 20(e) is not established. Although Applicant claims that he disputed the debt in SOR ¶ 1.bb, he has not produced any documentary evidence of the basis for the dispute or its resolution.

WHOLE PERSON ANALYSIS

Under AG ¶ 2(c), 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. In applying the whole- person concept, an administrative judge must evaluate an applicant’s eligibility for a public trust position by considering the totality of the applicant’s conduct and all relevant circumstances. An 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.

I have incorporated my comments under Guideline F in my whole-person analysis. Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003).

After weighing the disqualifying and mitigating conditions under Guideline F, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the trustworthiness concerns raised by his delinquent debts. Accordingly, I conclude he has not carried his burden of showing that it is clearly consistent with national security to grant him eligibility for a public trust position.

FORMAL FINDINGS

Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT

Subparagraphs 1.a-1.cc: Against Applicant

CONCLUSION

It is not clearly consistent with national security to grant Applicant eligibility for a public trust position. Eligibility for a public trust position is denied.

LeRoy F. Foreman Administrative Judge