KEYWORD: Financial; Personal Conduct DIGEST: Applicant is a 38-year-old senior engineer employed by a defense contractor. He had numerous delinquent debts created by frequent trips to visit a dying parent. He sought financial counseling, entered into payment agreements, paid off several debts, and has made a good-faith effort to resolve indebtedness. He also gave incorrect answers on two security clearance applications and gave an investigator a low estimate of the amount actually owed on a former employer’s credit card. He disclosed the complete background of why he owed this debt. One security clearance application was 11 years ago and because it was not recent, was not counted against him. The mistake on the latest security clearance application was attributable to government mistake. He successfully mitigated the security concerns about financial considerations and personal conduct. Clearance is granted. CASENO: 06-18942.h1 DATE: 09/28/2007 DATE: September 28, 2007 In re: --------------------- SSN: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-18942 DECISION OF ADMINISTRATIVE JUDGE CHRISTOPHER GRAHAM APPEARANCES FOR GOVERNMENT Eric H. Borgstrom, Esq., Department Counsel FOR APPLICANT Pro Se 2 SYNOPSIS Applicant is a 38-year-old senior engineer employed by a defense contractor. He had numerous delinquent debts created by frequent trips to visit a dying parent. He sought financial counseling, entered into payment agreements, paid off several debts, and has made a good-faith effort to resolve indebtedness. He also gave incorrect answers on two security clearance applications and gave an investigator a low estimate of the amount actually owed on a former employer’s credit card. He disclosed the complete background of why he owed this debt. One security clearance application was 11 years ago and because it was not recent, was not counted against him. The mistake on the latest security clearance application was attributable to government mistake. He successfully mitigated the security concerns about financial considerations and personal conduct. Clearance is granted. Government Exhibit 1 (Security Clearance Application (SF 86), dated December 6, 2006).1 Tr. at 5.2 Id. at 10, 17.3 3 STATEMENT OF THE CASE On December 6, 2006, Applicant submitted a Security Clearance Application (SF 86). The1 Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. As required by Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended, DOHA issued a Statement of Reasons (SOR) on January 16, 2007, detailing the basis for its decision – security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of the Directive. The President issued revised adjudicative guidelines (Guidelines) on December 30, 2005. DoD implemented them on September 1, 2006. Pending official amendment/reissue of DoD Directive 5220.6, the Guidelines are to be used in all cases when the SOR is dated on or after September 1, 2006. Because the SOR was issued after September 1, 2006, DoD policy requires that this case proceed under the revised guidelines. Applicant answered the SOR in writing on February 19, 2007, and elected to have a hearing before an administrative judge. DOHA assigned the case to me on August 3, 2007, and issued a Notice of Hearing on August 28, 2007. I convened a hearing on September 12, 2007, to consider whether it is clearly consistent with the national interest to grant or continue Applicant's security clearance. Applicant made a knowing and voluntary waiver of the rule requiring15-days notice of the hearing, because he had actual notice more than 15 days prior to the hearing. The government2 offered twelve exhibits, marked as Exhibits 1-12. Applicant offered eleven exhibits, marked as Exhibits A-K. All exhibits were admitted without objection. DOHA received the transcript (Tr.) on September 20, 2007. FINDINGS OF FACT Financial Considerations Applicant denied the allegations contained in SOR subparagraphs 1.f., 1.g., 2.a., 2.b., 2.c., and 2.d. He admitted all other allegations in the SOR. The admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact: Applicant is a 38-year-old senior engineer employed by a defense contractor. He is married3 and has two children. He has a bachelor’s degree in mathematics, and is currently a second year evening law student. He served in the U. S. Marine Corps (USMC) from February 1991 until February 1994, when he left the service due to herniated lumbar discs. His official discharge form Answer to the SOR, dated February 16, 2007, at 11.4 Id. at 18-27.5 Applicant has a payment plan agreement with the creditors denoted in the table..6 See also Applicant’s Exhibit L (Release of Title Lien, dated February 27, 2007).7 Tr. at 46-47.8 4 DD 214 indicates an honorable discharge. In April 2005, he joined the Army National Guard. He4 attended officer candidate school (OCS). However, the National Guard was told he could not be promoted to an officer upon completion of OCS training because he had received an other than honorable (OTH) discharge from the USMC. The matter is currently under review. He is waiting for his commissioning to second lieutenant (2LT) pending the outcome of this review. He has held a security clearance since 1997. 5 Applicant has numerous financial delinquencies best illustrated in the following table: SOR ¶ AMOUNT STATUS # of PAYMENTS TRANSCRIPT PAGE 1.a. $84 paid 39 1.b. $2,823 pay plan 8 at $250/month 406 1.c. $1,436 pay plan* 3 at $100/month 40-41 1.d. $9,093 pay plan* 3 at $187/month 42-43 1.e. $3,033 pay plan* 1 at $100/month 44 1.f. $112 paid 45 1.g. $5,424 paid 45-467 1.h. $56,996 pay plan 3 at $800/month 46-47 1.i. $3,387 pay plan* 3 at $100/month 48-49 1.j. $3,000 same as 1.i. 50 1.m. $2,498 same as 1.d. 42-43 Subparagraphs with an asterisk (*) after the words “pay plan” indicate that the payment plans are currently under abeyance because of the school loans set out in subparagraph 1.h. Applicant has an arrangement with the school loan creditor to pay $800 per month for nine months. He has paid three months so far. At the end of the nine months, the creditor will allow Applicant to refinance his student loans. The creditors in the other pay plans have agreed with this arrangement, and he will resume his payments at that time.8 In 2001, Applicant used his company credit card for personal expenses and was terminated from employment. This matter is the subject of subparagraphs 1.d., 1.l., and 1.m. Applicant’s Id. at 53-56; Government Exhibit 12 (Personal Subject Interview, OPM Report, dated March 27, 2006) at 1-4. 9 Id. at 50-53, 58.10 Id. at 58-63.11 Government Exhibit 2 (Questionnaire for National Security Positions, Standard Form 86, dated June 6, 1996) at 9.12 Government Exhibit 12, note 7, supra, at 1-4; Tr.at 62.13 Government Exhibit 11 (Personal Subject Interview, OPM Report, dated November 1, 2005) at 1-3. 14 Tr.at 11.15 Id. at17.16 Id. at18.17 5 mother lived half way across the country, and was dying of cancer. Applicant used the credit card to purchase airline tickets for he and his family to fly to visit his mother six or seven times prior to her death in November 2001.9 From and after October 2003, Applicant was late with his rent payments on 29 occasions. SOR subparagraph 1.k. The rent is now current, and he has an arrangement with the landlord to pay the rent in two monthly payments, which avoids late payment status.10 Applicant and his wife received credit counseling which has taught them how to budget and to communicate better with each other about finances.11 Personal Conduct The SOR subparagraph 2.a. alleges that the delinquent finances set out in subparagraph 1 are disqualifying conditions under Guideline ¶ 16. Applicant falsified material facts on a standard form 86, executed by him on June 6, 1996, in response to “Section 28. Your financial delinquencies a. In the last 7 years, have you ever been over 180 days delinquent on any debt(s)?; b. Are you currently over 90 days delinquent on any debt(s)?” He failed to list seven debts that had become delinquent between 1992 and 1994. He12 did not know about the first six and did not remember the seventh. 13 During an interview with a Special Agent of the Office of Personnel Management (OPM) on November 1, 2005, he stated that he had only charged $500 on his corporate credit card, whereas in truth, he charged nearly $2,000 to $3,000 in personal expenses, and he was at least 120 days overdue on paying the account when he was terminated by his employer. He admitted he owed the14 debt, he wasn’t sure what the amount was, so he “low-balled” it. He wasn’t concerned about the15 effect on his security clearance , “but [it gave me] grave embarrassment and immediately following the interview I regretted the statement.” He did not bring it to the interviewer’s attention, but at16 the second interview in March 2006, he did give the agent documents with the correct figures.17 Government Exhibit 1, supra, note 1, at 5.18 Answer to the SOR, note 4, supra..19 Applicant’s Exhibits A-E (Various Letters from the National Guard Requesting an Upgraded Discharge, various dates20 from July 20, 2006 to September 16, 2006. 6 On a security clearance application dated December 6, 2006, in response to “Question 17. Your Military Record - have you ever received other than an honorable discharge from the Military?”, Applicant failed to disclose that he had been discharged under other than honorable conditions. Applicant believed that he had an honorable discharge from the Marine Corps. He had18 sustained two herniated lumbar discs, and his doctors recommended he be discharged. He apparently left the Marine Corps without making sure that all of his paperwork was in order. Every time he has requested a copy of his form DD 214 from military personnel records, the form states he received an honorable discharge. To clarify matters, his National Guard unit has requested that the19 discharge be given an upgrade to a general discharge.20 POLICIES In an evaluation of an applicant’s security suitability, an administrative judge must consider the “Adjudicative Guidelines for Determining Eligibility For Access to Classified Information” (Guidelines). In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into Disqualifying Conditions (DC) and Mitigating Conditions (MC), which are used to determine an applicant’s eligibility for access to classified information. These guidelines are not inflexible ironclad rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. Guideline ¶ 2. An administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. Because the entire process is a conscientious scrutiny of a number of variables known as the “whole person concept,” an administrative judge considers all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. Guideline ¶ 2(c). Specifically, an administrative judge should consider the nine adjudicative process factors listed at Guideline ¶ 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) 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.” Since the protection of the national security is the paramount consideration, the final decision in each case is arrived at by applying the standard that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” Guideline ¶ 2(b). 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. “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion21 in light of all the contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [a Judge’s] finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4 Cir. 1994).th See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “The Administrative Judge [considers] the record22 evidence as a whole, both favorable and unfavorable, evaluates Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and decides whether Applicant has met his burden of persuasion under Directive ¶ E3.1.15.” ISCR Case No. 04-10340 at 2 (App. Bd. July 6, 2006). Executive Order 10865, § 7.23 7 In the decision-making process, facts must be established by “substantial evidence.” The21 Government initially has the burden of producing evidence to establish a case which demonstrates, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant’s access to classified information. Once the Government has produced substantial evidence of a disqualifying condition, the burden shifts to Applicant to present “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and [applicant] has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15. The burden of disproving a mitigating condition never shifts to the Government.22 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 under this Directive include, by necessity, consideration of the possible risk an 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. The scope of an administrative judge’s decision is limited. Nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism.23 CONCLUSIONS Guideline F—Financial Considerations Guideline ¶ 18 articulates the Government’s concern concerning financial problems. “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 8 information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.” The government established its case under Guideline ¶ 19. Three Financial Considerations Disqualifying Conditions (FC DC) could raise a trustworthiness concern and may be disqualifying in this case: Guideline ¶ 19(a) “inability or unwillingness to satisfy debts,” Guideline ¶ 19(c) “a history of not meeting financial obligations,” and Guideline ¶ 19(d) deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, and other intentional financial breaches of trust. Applicant has a history of not meeting debts, as set forth in the SOR and government exhibits. He also misused his employer’s credit card for personal expenses. Five Financial Considerations Mitigating Conditions (FC MC) under Guidelines ¶ 20(a)-(e) are potentially applicable: (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; (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; (d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; and (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. Based on my evaluation of the record evidence as a whole, I conclude Guidelines ¶ 20(a) and (e) do not apply. The debts continued to be delinquent until recently and there is no basis to dispute most of the indebtedness. However, Guidelines ¶ 20 (b), (c), and (d) are at issue. Applicant did seek financial counseling, which proved most helpful. It taught Applicant and his wife how to budget and how to communicate about finances. His efforts at debt reduction only became serious in 2007. He was on notice in 2005 that the government had concerns about his financial situation. He did pay off the judgment for rent, his car, and two other small bills. He established payment plans with six creditors. One, for his student loans, in the summer of 2007 required him to commence monthly payments of $800. He is still paying the debt on his former employer’s credit card and the new student loan amount, but has had to put the other four debt payments in abeyance. In 2001, his mother was dying of cancer, and during that summer. He took his entire family on five or six trips to see her. These expenses are what caused him to use his company credit card. In hindsight, it was not responsible of him to make the number of trips and to use his company credit card for personal expenses. His mother’s death is an unforeseen event, and I will not second-guess his motives and reasons for wanting to visit his mother under the circumstances. People do not always act 9 responsibly in times of stress, and he did what he thought was right, and I find no fault with his motives. Using his employer’s credit card without getting permission is bad conduct. Letting one’s children have time with a dying grandparent is responsible conduct. While he still has substantial debt, I believe he has taken sufficient steps and initiated a good-faith effort to repay overdue creditors or otherwise resolve the debts. This is a very close case. I find that Guideline ¶ 20 (b), (c), and (d) apply, and I conclude Guideline F for Applicant. Guideline E—Personal Conduct Paragraph 15 of the new adjudicative guidelines sets out the security concerns covered by the Personal Conduct 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. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. The old adjudicative guidelines for Personal Conduct included as a potentially disqualifying condition any “reliable, unfavorable information” involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations. That general language duplicated other guidelines, such as those for Criminal Conduct or Financial Considerations. The new adjudicative guideline for Personal Conduct has more limited language, however. Under paragraph 16(c), a disqualifying condition may arise where there is “credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline . . . .” Paragraph 16(d) applies where there is “credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination. . . .” (Emphasis added.) In this case, SOR subparagraph 2.a. is the basis for part of the allegations under the guideline for Personal Conduct, which was the evidence of misuse of his employer’s credit card, and financial indebtedness. However, each of these possibly could support a basis for disqualification under Guideline F (Financial Considerations). Thus, none of the evidence raises separate security concerns under the guideline for Personal Conduct. Under Guideline ¶ 15, of special interest is any failure to provide truthful and candid answers during the security clearance process. One personal conduct disqualifying condition is particularly relevant and may be disqualifying in this case. Guideline ¶ 16. Conditions that could raise a security concern and may be disqualifying include: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, 10 determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; and (b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative. Applicant’s SF 86 in 1996 had incorrect answers to Section 28 about delinquent debts. He also did not provide the entire amount of the debt owed to his former employer’s credit card, and he did not list an other than honorable discharge on his 2006 SF 86. Applicant knew he owed a higher amount, but he could not remember the exact amount so he gave an intentionally low figure. He had an interview with the investigating agents twice, and knew their concerns were about his financial delinquencies. Yet he did not disclose the true amount to them orally, but did give the agent the true amount on a document at the second interview in March 2006. The government established its case under Guideline ¶ 16 (a) and (b). Guideline ¶ 17. Conditions that could mitigate security concerns include: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; or (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur. Guideline ¶ 17 (a-b) do not apply. Applicant did not make a timely or voluntary disclosure of his true amount owed his former employer’s credit card company. He did provide the amount in a document given to the DSS agent. What is important is that he disclosed his improper use of the credit card, that he was fired by his employer, even though the use was in an unusual and stressful situation. The fact is he did not remember the exact amount. He guessed at it. It was too low but he did disclose the series of incidents that caused the debt. He is paying it off. On the 1996 SF 86, he did not remember six debts and forgot about one. It also has been 11 years since he filled out the form. With respect to Question 17 on the 2006 SF 86, he thought he had an honorable discharge. When he received several copies of documents from official record keepers and each one states “honorable discharge,” it is the government’s error and not his. His National Guard unit has requested the discharge be upgraded to a general discharge. Guideline ¶ 17 (c) and (d) are applicable. The credit card issue was disclosed. The amount was in error. I consider it a minor error Honore de Balzac, French novelist (1799-1850).24 11 compared to disclosing the improper use and termination by his employer. I conclude Guideline E for Applicant. Whole Person Analysis In addition to the enumerated disqualifying and mitigating conditions, I have considered the general adjudicative guidelines related to the whole person concept under Guideline ¶ 2(a). Applicant has made substantial progress in getting his finances under control. He is 38 years old, sufficiently mature to be fully responsible for his obligations. I considered his age, his education, his employment, and what might motivate him to be less than truthful. Applicant supplied false answers on a security clearance applications. This is problematic because candor with the government about a person’s negatives is the crux of a trustworthiness determination. If a person discloses the adverse information about himself, then he may be trusted with confidential or classified information. Applicant admitted to financial problems spanning from 2001 until the present. He has resolved three of the debts. The remaining delinquent debts are substantial but he has payment plans in place, and he has kept in contact with his creditors. His credit counseling worked. When most men are approaching middle age, he successfully completed OCS training. He was twice as old as some of his fellow trainees. He has acted responsibly to arrange debt repayment. He has expressed remorse for his actions and mistakes. The issue that started his financial exigency was the travel to visit a dying parent. A mistake, but it was not done with any ulterior motives. He was being a good child and parent, providing his children a good role model for them to emulate. “In intimate family life, there comes a moment when children, willingly or not, become the judges of their parents.”24 The United States has a duty to protect itself from unauthorized disclosures of sensitive information and place the utmost trust in those persons to whom it grant access to sensitive information. Applicant has had his share of problems, but I believe that he has matured, and shown that he can persevere. The totality of the record raises no reasonable and persistent doubts about Applicant's ability to protect classified information and to exercise the requisite good judgment and discretion expected of one in whom the government entrusts its interests. I conclude it is clearly consistent with the national interest to grant Applicant access to classified information. FORMAL FINDINGS Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1. Guideline F: FOR APPLICANT Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant 12 Subparagraph 1.e: For Applicant Subparagraph 1.f: For Applicant Subparagraph 1.g: For Applicant Subparagraph 1.h: For Applicant Subparagraph 1.i: For Applicant Subparagraph 1.j: For Applicant Subparagraph 1.k: For Applicant Subparagraph 1.l: For Applicant Subparagraph 1.m: For Applicant Paragraph 2. Guideline E: FOR APPLICANT Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant Subparagraph 2.c: For Applicant Subparagraph 2.d: For Applicant DECISION In light of all of the circumstances in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted. Christopher Graham Administrative Judge