KEYWORD: Personal Conduct; Financial; Criminal Conduct DIGEST: As a teenager and young adult, Applicant mismanaged her finances, which resulted in an arrest for writing a bad check, but no conviction. As she matured, she changed her checking writing and bill paying habits. She paid her overdue small debts. Her largest debt is barred by the statute of limitations and cannot be used as a way to pressure, coerce, or exploit her. She is working to resolve her remaining debts. She has mitigated the government’s concerns under Guidelines F and J. Since she did not intentionally falsify her answers on the SF-85P form, the government did not establish a prima facie case under Guideline E. Eligibility is granted. CASENO: 06-12649.h1 DATE: 05/30/2007 DATE: May 30, 2007 In re: ------------------- SSN: ----------- Applicant for Trustworthiness Determination ) ) ) ) ) ) ) ) ADP Case No. 06-12649 DECISION OF ADMINISTRATIVE JUDGE MARY E. HENRY APPEARANCES FOR GOVERNMENT Richard Stevens, Esq., Department Counsel FOR APPLICANT Pro Se This action was taken under Executive Order 10865, dated February 20, 1960, as amended; and Memorandum1 from the Deputy Under Secretary of Defense Counterintelligence and Security, titled “Adjudication of Trustworthiness Cases,” dated November 19, 2004. Applicant’s response to the SOR, dated September 19, 2006.2 2 SYNOPSIS As a teenager and young adult, Applicant mismanaged her finances, which resulted in an arrest for writing a bad check, but no conviction. As she matured, she changed her checking writing and bill paying habits. She paid her overdue small debts. Her largest debt is barred by the statute of limitations and cannot be used as a way to pressure, coerce, or exploit her. She is working to resolve her remaining debts. She has mitigated the government’s concerns under Guidelines F and J. Since she did not intentionally falsify her answers on the SF-85P form, the government did not establish a prima facie case under Guideline E. Eligibility is granted. STATEMENT OF CASE On August 18, 2004, Applicant submitted an application for a position of public trust, an ADP I/II/III position (SF-85P). The Defense Office of Hearings and Appeals (DOHA) declined to grant the application under Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended (the “Directive”). On August 30,1 2006, DOHA issued Applicant a Statement of Reasons (SOR) detailing the basis for its decision. The SOR, which is in essence the administrative complaint, alleged security concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). In a sworn statement date stamped September 19, 2006, Applicant responded to the SOR allegations. She requested a hearing on February 26, 2007. DOHA assigned this case to me on March 7, 2007, and issued a notice of hearing on March 16, 2007. I conducted the hearing on April 10, 2007. The government submitted seven exhibits (GE), which were marked and admitted into the record as GE 1-7 without objection. Applicant submitted 15 exhibits (App Ex), which were marked and admitted as App Ex A-O without objection. Applicant testified on her own behalf. I held the record open for Applicant to submit addition evidence, which she did. This evidence has been marked and admitted as App Ex P-AA without objection. DOHA received the hearing transcript (Tr.) on April 24, 2007. FINDINGS OF FACT In her SOR response, Applicant admits to subparagraphs 2.b, 2.c, 2.e, 2.f, and 2.i under Guideline F in the SOR. She denies the remaining allegations, including intentional falsification.2 Applicant’s admissions are incorporated herein. In addition, after a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. GE 1 (Applicant’s questionnaire for a position of public trust, dated August 18, 2004) at 1-3.3 Tr. at 27, 64.4 GE 4 (Applicant’s signed sworn statement, dated August 14, 2003 and summary) at 1, 3-4; Tr. at 36-38, 44-47,5 50-53. App Ex J (Warrant and court disposition sheet); App Ex K (Warrant and court disposition sheet); App Ex L6 (Warrant and court disposition sheet); Tr. at 34-37. 3 Applicant, a 37-year-old woman and high school graduate who works as a claims associate for a Department of Defense contractor, seeks a position of public trust. She started working for her employer in April 1990. 3 Applicant married eight years ago. She has a 7-year-old son, a 15-year-old stepson, and a 20- year-old stepdaughter, who is in college. Her husband works as a welder. His work hours vary from week to week, depending upon availability. The variability in his work hours impacts his monthly income.4 Applicant stated that as a young adult, she wrote checks even though she did not know if she had sufficient funds in her bank account. She never kept a record of the checks she wrote or a checkbook. The Federal Bureau of Investigation (FBI) criminal record information sheet reflects a June 7, 1996 incident related to a violation of check law. The report contains a case number and a reference to two counts of check law violation. The report does not state that Applicant was arrested; rather, it reflects either that she was arrested or something was received on June 7, 1996 by the police. The outcome of this incident is not noted in this report. The Applicant had only a vague memory at the hearing about this matter and the facts surrounding it. In her 2003 signed and sworn affidavit, she outlined this incident clearly. In 1996, the police arrived at Applicant’s residence and arrested her on a check law violation. She had written a check, which the payee cashed before her payday. This action resulted in insufficient funds to pay other outstanding checks. She paid all the fees on the warrant and the check. The police released her and she heard nothing more from the police or the courts.5 Although not alleged, Applicant provided documentation which reflects that the court issued three warrants, two for check writing incidents in 1999 and one for a check writing incident in 2002. The prosecutor did not file formal charges against her for fraudulent checks. Rather, she demonstrated to the magistrate court that she paid the checks and the court administrative costs related to two warrants. The magistrate court entered a finding of not guilty as the disposition for these cases. She appeared before a magistrate judge on the third warrant. The complaining party could not produce a copy of the bad check it claimed she wrote; thus, the court found her not guilty and dismissed the charges against her. Applicant has not been involved in any more check writing issues.6 In 2002, Applicant purchased a used car. She made the car payments for over two years, but when she got behind in the payments, the car note holder repossessed the car. She knew the car would be sold and assumed that the funds from the sale of the car would pay her loan in full. She purchased another car shortly thereafter. She made the car payments for several years, but again got behind in the payments and the car was repossessed. She knows that the note holder sold this car. Again, she believed that the sale of the car eliminated her debt. Two month before the hearing, a lawyer contacted her to settle the unpaid balance on her second car loan. At this time, she learned that the Tr. at 39-43, 43-44.7 Applicant indicated that she only spent $150 a month on groceries for four individuals, which I believe to be8 too low. I added an additional estimate of $300 for food into her monthly expenses. App Ex Q (Personal Financial Statement, dated May 3, 2007); App Ex T (2004 Federal Income Tax return); App Ex U (2005 Federal Income Tax return); App Ex V (2006 Federal Income Tax return); App Ex W (2004 State Income Tax return); App Ex X (2005 State Income Tax return); App Ex Y (2006 State Income Tax return); GE 6 (Credit report, dated May 18, 2006); GE 5 (Credit report, dated October 29, 2004); and GE 7 (Credit9 report, dated January 23, 2007). 4 sale of a car after it had been repossessed did not necessarily eliminate her debt. She offered to repay her second car debt on a monthly plan. The lawyer, on behalf of his client, has not accepted her offer.7 Applicant’s gross monthly income totals approximately $2,707. Her net monthly income totals approximately $2,065. Her husband’s net monthly income totals approximately $1,800, giving them a combined net monthly income of $3865.Their monthly expenses approximate $2,400, leaving an estimated $1,400 to pay unexpected expenses and debt.8 A review of Appellant’s credit reports dated October 29, 2004, May 19, 2006, January 23, 2007, and the SOR shows 10 unpaid debts totaling $13,924. The current status of these debts is as follows:9 SOR ¶ TYPE OF DEBT (DATE) AMOUNT CURRENT STATUS 2.a Telephone bill (2002) $ 312.00 Closed, resolved, to be deleted from credit report 2.b Moving bill (2002) $ 118.00 Paid 2.c Telephone bill (2006) $ 42.00 Paid 2.d Telephone bill (October 2004) $1,221.00 Disputes balance 2.e Medical bill (2000) $ 32.00 Paid 2.f Cable bill (2001) $ 164.00 Paid 2.g Returned check (2002) $ 53.00 Criminal court action dismissed on grounds of lack of proof; not guilty 2.h Car repossession (May 2002) $8,935.00 Unpaid 2.I Collection account (April 2002) $ 87.00 Paid 2.j Car repossession (September 2004) $2,960.00 Unpaid, offer for monthly payment plan made App Ex G (Receipt, dated September 18, 2006); App Ex H (Letter, dated February 21, 2007); App Ex I (Copy10 of money orders for three payments on debts); App Ex K, supra note 5, at 2; App Ex M (Letter, dated April 2, 2007); App Ex P (Receipt, dated May 11, 2007); App Ex S (Current telephone bill); GE 2 (Answers to Interrogatories, dated June 27, 2006) at 3; Tr. at 30-34, 43-44, 54-55. Tr. at 28-29, 58, 72.11 Id. at 70; App Ex A (Trustworthiness determination, dated May 13, 2003); App Ex B(Letters, dated April 5,12 2007 and April 9, 2007); App Ex F (Certificates of Recognition, dated January 10, 2006); App Ex AA (Unsigned performance evaluation for the year 2006). Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). 13 5 Applicant’s oldest and smallest debts are resolved. She disputes the large, unpaid telephone bill and has requested information about the basis for the bill, which she has not yet received. She pays her current telephone bill regularly and timely. Her two largest debts relate to car repossessions. She made an offer to repay the smaller car debt on a monthly basis, but it has not yet been accepted. She now pays cash for most items or uses money orders as a means of payment. While she has a checking account, she uses it only for emergencies.10 When Applicant completed her SF-85P on August 18, 2004, she answered “no” to question 22b, which asked if she “was now over 180 days delinquent on any loan or financial obligation?” She denied falsifying her answer at the hearing, even though she did not list any of her delinquent debts identified in her credit reports. When she read the question, she thought only of her current bills, which she knew were not delinquent. She did not think about her old bills. I note that two debts listed in the SOR became delinquent subsequent to the date she completed her application. At the hearing, the government conceded that this question is poorly written.11 In 2003, the Department of Defense granted Applicant a trustworthiness determination. Her co-workers describe her as reliable and honest. Her employer rated her at sometimes exceeds expectations in her most recent performance appraisal. The employer noted her ability to work in the company’s best interest, and in a compliant and ethical manner. A year ago, she received several certificates of recognition from her employer. The record lacks any evidence indicating that she has been disciplined for violation of rules in the workplace. She has learned from her past financial mistakes.12 POLICIES 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.” In Executive Order 10865, Safeguarding13 Classified Information Within Industry (Feb. 20, 1960), the President set out guidelines and procedures for determining trustworthiness within the executive branch. To be eligible for a trustworthiness determination, an applicant must meet the security guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions and mitigating conditions under each guideline. Directive, ¶ E2.2.1.14 Id.15 Id.16 Directive, ¶ E3.1.14.17 Directive, ¶ E3.1.15.18 ISCR Case No. 01-20700 at 3 (App. Bd. December 19, 2002).19 Directive, ¶ E2.2.2.20 6 Conditions that could raise a trustworthiness concern and may be disqualifying, as well as those which could mitigate security concerns pertaining to these adjudicative guidelines, are set forth and discussed in the conclusions below. The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is eligible for a trustworthiness determination. An14 administrative judge must apply the “whole person concept,” and consider and carefully weigh the available, reliable information about the person. An administrative judge should consider the15 following factors: (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 voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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.16 Initially, the Government must present evidence to establish controverted facts in the SOR that disqualify or may disqualify the applicant from being eligible for access to sensitive information.17 Thereafter, the applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts. An applicant “has the ultimate burden of demonstrating that it is clearly consistent18 with the national interest to grant eligibility for a position of public trust.” Any doubt as to whether19 access to classified or sensitive information is clearly consistent with national security will be resolved in favor of the national security. The same rules apply to trustworthiness determinations20 for access to sensitive positions. CONCLUSIONS Upon consideration of all the facts in evidence, and after application of all appropriate adjudicative factors, I conclude the following with respect to the allegations set forth in the SOR: Personal Conduct Personal conduct under Guideline E is always a trustworthiness concern because it asks the central question does a person's past conduct justify confidence the person can be trusted to properly safeguard classified and/or sensitive information. Deliberate omission, concealment, or falsification See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004)(explaining holding in ISCR Case No. 02-2313321 at 5 (App. Bd. Jun. 9, 2004)). 7 of a material fact in any written document or oral statement to the government when applying for a security clearance or in other official matters is a trustworthiness concern. It is deliberate if it is done knowingly and willfully. Under Guideline E, the government established that Applicant omitted material facts from her SF-85P when she answered question 22b. She denies, however, that she deliberately falsified her answer to this question, stating that she only considered her current debts, not debts which were several years old, when answering the question. When a falsification allegation is controverted, the government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant’s intent or state of mind at the time the omission occurred. For Personal21 Conduct Disqualifying Conditions (PC DC) E2.A5.1.2.2 (The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . .) to apply, the government must establish that Applicant’s omission, concealment or falsification in her answer was deliberate. Applicant credibly testified that she only considered the status of her current debts when answering the question. In light of the government’s concession on the poor quality of this question, she did not act unreasonably in interpreting the question to means only current debts,not debts in the past. Thus, Applicant did not deliberately falsify her trustworthiness application. The government has not established its case under Guideline E. Financial Considerations Based on all the evidence, Financial Considerations Disqualifying Conditions (FC DC) E2.A6.1.2.1 (A history of not meeting financial obligations), and FC DC E2.A6.1.2.3 (Inability or unwillingness to satisfy debts) apply to Applicant's case. Applicant had 10 delinquent debts. Although she paid the small debts, the major debts remain unpaid. I considered the Financial Considerations Mitigating Conditions (FC MC). I cannot apply FC MC E2.A6.1.3.1 (The behavior was not recent), and FC MC E2.A6.1.3.2 (The behavior was isolated) because the majority of her debts remain outstanding, and thus, are recent. She incurred these debts over a period of time, not at one point in time. The repossession of one car occurred only a year ago. FC MC E2.A6.1.3.3 (The conditions that resulted in the behavior were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce, or separation)) has some application. Applicant’s husband works as a welder. Since the availability of work various, his work hours vary as does his income. His fluctuating income can impact their ability to pay all their monthly bills from time to time. Applicant has indicated that her husband’s net monthly income is $1800. In light of his variable work hours, I conclude that this is an average, not an amount guaranteed each month. FC MC E2.A6.1.3.4 (The person has received or is receiving counseling for the problem and there are clear indications that the problem is being resolved or under control) does not apply because Applicant has not contacted a credit counseling agency The Board has previously explained what constitutes a “good faith” effort to repay overdue creditors or22 otherwise resolve debts: In order to qualify for application of Financial Considerations Mitigating Condition 6, an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term ‘good-faith.’ However, the Board has indicated that the concept of good-faith ‘requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.’ Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy) in order to claim the benefit of Financial Considerations Mitigating Condition 6. (internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). In ISCR Case No. 99-9020 at 6 (App. Bd. Dec. 1, 1999), the Appeal Board specifically addressed application of the statute of limitations, stating a “person who decides not to honor his or her debts may be able to avoid paying those debts until they are legally uncollectible because the statute of limitations has run. Reliance on the running of a statute of limitations would be a legally permissible course of action. However, it would not demonstrate a good-faith effort to resolve one’s debts that would fall under the meaning of Financial Considerations Mitigating Condition 6.” See ISCR Case No. 03-10880 (App. Bd. June 24, 2005); ISCR Case No. 01-09691 (App. Bd. Mar. 27, 2003) (stating an applicant must do more than merely cite the statute of limitations to obtain the full benefit of FC MC 6). See also ISCR Case No. 01-09691 at 3 (App. Bd. Mar. 27, 2003) (“[E]ven if a delinquent debt is legally unenforceable under state law, the federal government is entitled to consider the facts and circumstances surrounding an applicant’s conduct in incurring and failing to satisfy the debt in a timely manner.”); ISCR Case No. 98-0349 at 2-3 (App. Bd. Feb. 3, 1999) (even though an applicant’s delinquent debts were not legally collectible because of the statute of limitations, that fact did not preclude the Administrative Judge from considering the applicant’s failure to resolve the delinquent debts before the statute of limitations ran). Cf. ISCR Case No. 01-04425 at 3-4 (App. Bd. May 17, 2002) (adverse Guideline F conclusions possible where applicant chose not to pay her delinquent debts, waited until her creditors ceased trying to collect those delinquent debts, and they were eventually dropped from her credit report.). See ISCR Case No. 04-07360 at 2 (App. Bd. Sept. 26, 2006) (stating partial credit was available under FCMC23 6 for debts being resolved through garnishment). 8 FC MC E2.1.3.6 (The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts) has some application. A promise to pay in the future is not sufficient to mitigate the financial considerations concern or evidence of a good faith effort to repay debt. Although Applicant has indicated an intent to pay her large debts, she has not provided evidence that she has taken concrete steps to resolve her three largest bills. She has paid her small outstanding debts, a factor in her favor.22 She also receives some credit in the whole person analysis, infra, for the application of her state’s 3-year statute of limitations, which applies to allegations 2.a, 2.b, and 2.e-2.h of the SOR debts. See State Code. Ann. § 15-3-530. The Court of Appeals succinctly explained the societal and judicial23 value of application of the statute of limitations: Statutes of limitations embody important public policy considerations in that they stimulate activity, punish negligence and promote repose by giving security and stability to human affairs. The cornerstone policy consideration underlying statutes of limitations is the laudable goal of law to promote and achieve finality in litigation. Significantly, statutes of limitations provide potential defendants with certainty that after a set period of time, they will not be ha[led] into court to defend time-barred claims. Moreover, limitations periods discourage plaintiffs from sitting on their rights. Statutes of limitations are, indeed, fundamental to our judicial system. 9 Carolina Marine Handling, Inc. v. Lasch, 609 S.E.2d 548, 552 (Ct. App. 2005) (internal quotation marks and citations omitted). Creditors for Applicant’s five small debts and the first car repossession are barred from collecting these debts under the law. Applicant has paid the five debts despite this fact. Elimination of 62% of her delinquent debt load through the statute of limitations has significantly reduced her potential vulnerability to improper financial inducements to pay these debts because she is no longer “financially overextended,” but it does not completely negate her past conduct in not paying her outstanding debts. Criminal Conduct The government has established its case under Guideline J. Criminal Conduct Disqualifying Condition (CC DC) E2.A10.1.2.1. (Allegations or admission of criminal conduct, regardless of whether the person was formally charged) and CC DC E2.A10.1.2.2. (A single serious crime or multiple lesser offenses) apply. As a teenager and young adult, Applicant wrote checks when she did not have sufficient funds in her checking account, which may be a misdemeanor offense under state law. On one occasion, the police arrested her for violation of the state’s check law. While not arrested again for this conduct, the court issued several warrants related to her check writing. I considered all the Criminal Conduct Mitigating Conditions (CC MC). I conclude that CC MC E2.A10.1.3.1. (The criminal behavior was not recent); CC MC E2.A10.1.3.5. (Acquittal), and CC MC E2.A10.1.3.6. (There is clear evidence of successful rehabilitation) apply. The incident, which forms the basis for the only allegation of criminal conduct in the SOR, occurred more than 10 years ago. The three warrants resulted from conduct which occurred over 7 years ago. In addition, the court found Applicant not guilty of the conduct alleged in the warrants. Applicant has improved her behavior in regards to check writing. No warrants have been issued in over four years. She now pays for most goods with cash or by money order. Whole Person Analysis In all adjudications, the protection of our national security is the paramount concern. The objective of the trustworthy determination process is the fair-minded, commonsense assessment of a person’s life to make an affirmative determination that the person is eligible for assignment to sensitive duties. Indeed, the adjudicative process is a careful weighing of a number of variables in considering the “whole person” concept. It recognizes that we should view a person by the totality of their acts, omissions, motivations and other variables. Each case must be adjudged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis. I have considered all the evidence and the “whole person” in evaluating Applicant's trustworthiness. With the exception of the two car repossessions, Applicant’s unpaid debts totaled less than $2,000. Because she did not manage her money as a young person, she encountered problems with dishonored checks due to insufficient funds in her account. Upon receipt of notice of a problem, she paid the bills in cash and the occasional court administrative cost. As she has grown older, she has learned from her past experiences with money mismanagement. She pays her current bills in cash or by money order, reserving the use of her checking account for emergencies only. She is learning to 10 manage her money better. Her monthly expense and income estimates indicate she has sufficient funds to develop a payment plan for her old car debts. She is attempting to do so for the smaller and more recent car debt. Since the creditor for the older car debt has no legal right to collect this debt, she cannot be coerced, pressured or exploited because this debt is not paid. The fact that the creditor is not pressuring her indicates an understanding of its legal standing. Throughout her 17 years of employment, Applicant has never been disciplined for rules violations. She not only complies with the company rules, she has protected sensitive information as required. At the hearing, she presented as a hard working individual who had no intent to hide her financial problems from the government. She had trouble managing her money in the past and continues to experience some problems now, partially due to the erratic nature of her husband’s work. She paid old debt for which she no longer had legal responsibility. Her assertion that she is working towards resolution of two more bills is credible when considered in light of her acceptance of responsibility for her old debts. I have weighed the mitigating factors, the reasons for her debts and her failure to pay her debts, her recent efforts to assume responsibility for some of the old debts, her payment of small older debts, her past conduct regarding her finances, her change in attitude towards her finances, her compliance with company rules, and her work ethic against her failure to pay her old debts earlier and her remaining unpaid bills. I find that the overwhelming weight of the evidence indicates that she is a person of integrity, who is trustworthy. She has not acted nor would she act in a manner which would harm her employer or the government. There is little likelihood she would suddenly change her behavior and begin violating the privacy rights of her employer’s clientele. 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 Subparagraph 1.a: For Applicant Paragraph 2. Guideline F: FOR APPLICANT Subparagraphs 2.a-2.j: For Applicant Paragraph 3. Guideline J: FOR APPLICANT Subparagraph 3.a: For Applicant DECISION In light of all of the evidence presented in this case, it is clearly consistent with the national interest to grant Applicant eligibility for assignment to sensitive duties. Eligibility is granted. 11 Mary E. Henry Administrative Judge