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ISCR 02-27047.h1: Guideline C security clearance hearing, denied (2004) · CASE

ISCR Case 02-27047.h1denied

Case headnote

ISCR Case No. 02-27047.h1

deniedOct 27, 2004· Hon. Charles D. Ablard· hearing

Summary

A 32-year-old administrative assistant for a defense contractor was denied a security clearance due to concerns under Guideline C (Foreign Preference), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The applicant had a 1995 conviction for credit card theft, resulting in a suspended five-year confinement, three years of probation, and a $350 fine.

Additionally, the applicant was indebted to four creditors for over $7,000. While she claimed intent to pay one debt, was paying on two others, and disputed a fourth, her credit report still showed over $4,000 in remaining debts. The applicant also held a foreign passport from her birth country, which she stated she would relinquish if found, claiming no intent to use it.

The denial was based on the credit card theft conviction, significant outstanding debts, and a lack of sufficient evidence demonstrating good faith efforts to resolve these financial obligations. The judge found her assertions of intent to pay some debts unsupported, leading to the denial of her security clearance.

Why the applicant was denied

The applicant was convicted of credit card theft, which raised disqualifying conditions under Guideline J.
The applicant has significant outstanding debts, which raised concerns under Guideline F regarding financial responsibility.
The applicant failed to provide evidence of good faith efforts to resolve her debts.

Conditions referenced

Disqualifying

E2.A10.1.2.1raisedCriminal Conduct
E2.A6.1.2.1raisedFinancial Considerations - History of Not Meeting Financial Obligations
E2.A6.1.2.3raisedFinancial Considerations - Evidence of Inability or Unwillingness to Satisfy Debts

Mitigating

E2.A6.1.3.6rejectedFinancial Considerations - Good Faith Effort to Repay Overdue CreditorsThe applicant failed to provide evidence of good faith efforts to resolve her debts.

Key rule quoted

“"[N]o one has a 'right' to a security clearance."”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedJan 26, 2003
Answer filedFeb 12, 2004Applicant elected to have the case decided on the written record.
Hearing held—No hearing was held.
Decision dateOct 27, 2004

Cite for

Disqualifying Conditions Related to Criminal Conduct Under Guideline J
Disqualifying Conditions Related to Financial Considerations Under Guideline F
Rejection of Mitigating Conditions Due to Lack of Evidence of Debt Resolution Efforts.

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: 32: “Applicant is a 32-year-old administrative assistant employed by a defense contractor.”
Delinquent debt cited: $7,000 (on a payment plan): “Applicant is indebted to four creditors for a total amount of over $7,000.00.”

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found in favor of the applicant regarding the foreign preference concerns, specifically noting that the applicant holds a foreign passport but has no intent to use it and would relinquish it if found. The judge ruled that the applicant's foreign preference did not disqualify her from obtaining a security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The applicant has outstanding debts totaling over $7,000, which she admits are unpaid. The judge found that the applicant failed to provide sufficient evidence to mitigate the financial concerns, leading to a decision against her under Guideline F.

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

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on allegations of criminal conduct under Guideline J, specifically regarding a conviction for credit card theft. The applicant's claims of mitigating circumstances were not substantiated with evidence, leading to a denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	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

DATE: October 27, 2004

In Re:

---------------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 02-27047

DECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

SYNOPSIS

Applicant is a 32-year-old administrative assistant employed by a defense contractor. She was arrested in 1995 and charged with credit card theft, pled guilty, and was sentenced to five years confinement suspended with three years supervised probation and a fine of $350. Applicant is indebted to four creditors for a total amount of over $7,000.00. She admits that these debts are outstanding but avers that she intends to pay one, is paying on two others, and disputes the fourth. No evidence was offered to prove those assertions but even assuming that the one disputed debt is not owed and that some payments have been made, the remaining debts exceed $4,000.00 according to her credit report. Clearance is denied.

STATEMENT OF CASE

On January 26, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn written statement dated February 12, 2004, Applicant responded to the allegations set forth in the SOR, and elected to have her case decided on the written record in lieu of a hearing. Department Counsel submitted the Government's written case on May 25, 2004. A complete copy of the file of relevant material (FORM) was provided to the Applicant, and she was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant did not respond and the case was assigned to me on July 29, 2004.

FINDINGS OF FACT

After a complete and thorough review of the information in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 32-year-old administrative assistant employed by a defense contractor. She was arrested in 1995 and charged with credit card theft and pled guilty. She was sentenced to five years confinement suspended with three years supervised probation and a fine of $350. These facts were admitted but she offered some exculpatory explanations but without proof.

Applicant is also indebted to four creditors for a total amount of over $7,000.00. She admits that these debts are outstanding but avers that she intends to pay one, is paying on two others and disputes the fourth one. No evidence was offered to prove those assertions but even assuming the disputed debt is not owed and some payments have been made, the remaining debts still exceed $4,000.00 according to her credit report.

Applicant holds a passport for a foreign country where she was born but cannot locate it and claims she would relinquish it if it could be found and has no intent to use it. The FORM concedes that issue and asks for a finding in favor of the Applicant on that allegation.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position that will give that person access to such information." Id. at 527.

An evaluation of whether the applicant meets the security guidelines includes consideration of the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other 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. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Executive Order No. 10865 § 2. See Executive Order No. 12968 § 3.1(b).

Initially, the Government must establish, by something less than a preponderance of the evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information See Egan, 484 U.S. at 531. The applicant then bears the burden of demonstrating that it is clearly consistent with the national interest to grant or continue the applicant's clearance. "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive, ¶ E2.2.2. "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531. See Executive Order No. 12968 § 3.1(b).

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions above, I conclude the following with respect to all allegations set forth in the SOR.

Allegations of criminal conduct raise a number of Disqualifying Conditions (DC) under Guideline J relating to a single serious crime or multiple lesser offenses (E2.A10.1.2.2.) and allegations or admissions of criminal conduct, regardless of whether the person was formally charged (E2.A10.1.2.1.). While several mitigating factors might be applicable if adequate evidence had been offered, the provisions of 10 U.S.C. 986 and the implementing regulations are unequivocal that an applicant is disqualified from holding a security clearance if convicted of a crime and sentenced to more than one year of imprisonment absent a waiver from the Secretary of Defense. However, in view of my finding regarding financial considerations, no recommendation regarding a waiver is necessary.

Applicant's delinquent debts prompted the allegation in the SOR of violation of Guideline F in that an individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. (E2.A6.1.1.) Conditions that could raise a security concern and may be disqualifying include a history of not meeting financial obligations (E2.A6.1.2.1.) and evidence of

inability or unwillingness to satisfy debts. (E2.A6.1.2.3.) Mitigating Conditions (MC) include the

fact that the person has initiated a good faith effort to repay overdue creditors or otherwise resolve debts. (E2.A6.1.3.6.)

Based on the evidence of record, including Applicant's admissions, the Government has established reasons to deny her a security clearance because of criminal conduct. Having established such reasons, the Applicant has the burden to establish security suitability through evidence which refutes, mitigates, or extenuates the disqualification and demonstrates that it is clearly consistent with the national interest to grant a security clearance. ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001).

As the policy prescribes, the burden shifted to the Applicant to show that the mitigating conditions are applicable to her. She has failed to meet that burden.

I concur in the recommendation of Department Counsel in the FORM that the allegation relating to Guideline C be in favor of Applicant.

In all adjudications the protection of our national security is of paramount concern. Persons who have access to classified information have an overriding responsibility for the security concerns of the nation. The objective of the security clearance process is the fair-minded, commonsense assessment of a person's trustworthiness and fitness for access to classified information.

After considering all the evidence in its totality and as an integrated whole to focus on the whole person of Applicant, I conclude that it is not clearly consistent with the national interest to grant clearance to Applicant.

FORMAL FINDINGS

Formal findings as required by the Directive (Par. E3.1.25) are as follows:

Paragraph 1. Guideline J: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

Subparagraph 1.b.: Against Applicant

Paragraph 2.Guideline F AGAINST APPLICANT

Subparagraph 2.a.: Against Applicant

Subparagraph 2.b.: Against Applicant

Subparagraph 2.c.: Against Applicant

Paragraph 3. Guideline C FOR APPLICANT

Subparagraph 3.a.: For Applicant

DECISION

After full consideration of all the facts and documents presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

Charles D. Ablard Administrative Judge

FOOTNOTES

02-27047.h1 FOR GOVERNMENT Braden M. Murphy, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-27047.h1.html[6/24/2021 11:10:14 AM] 02-27047.h1