KEYWORD: Guideline F; Guideline E
DIGEST: The Judge’s application of financial considerations mitigating condition 3 is not
supported by the record evidence in that Applicant’s financial problems are longstanding and
began before the illness in question.  There is a relative paucity of evidence to support the
application of Financial Considerations Mitigating Condition 6.  There are several reasons not to
sustain the Judge’s finding that Applicant had no intention to deceive.  Favorable decision
reversed.
CASENO: 06-19856.a1
DATE: 11/28/2007
DATE: November 28, 2007
In Re:
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Applicant for Trustworthiness Designation
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ADP Case No. 06-19856
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Fahryn Hoffman, Esq., Department Counsel
FOR APPLICANT
Pro Se
Although Applicant submitted a Public Trust Position Application (SF 85P), the SOR designated the case1
number with an “ISCR” prefix.  The Judge properly concluded that this was an administrative error.  Tr. at 7-8.  She
treated the case as an application for a trustworthiness designation, and her decision styles the case number with an ADP
prefix. 
 
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a
trustworthiness designation.   On August 29, 2006, DOHA issued a statement of reasons (SOR)1
advising Applicant of the basis for that decision–trustworthiness concerns raised under Guideline
F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense
Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On May
31, 2007, after the hearing, Administrative Judge Jacqueline T. Williams granted Applicant’s request
for a trustworthiness designation.  Department Counsel filed a timely appeal pursuant to Directive
¶¶ E3.1.28 and E3.1.30.
Department Counsel raises the following issues on appeal: whether the Judge’s application
of the Financial Consideration Mitigating Conditions (FCMC) is error; whether the Judge’s
conclusion that the government had not met its burden of production under Guideline E is arbitrary,
capricious, or contrary to law; and whether the Judge’s whole person-analysis is supported by record
evidence.  Finding error we reverse.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
Applicant is a budget analyst for a defense contractor.  She currently holds a secret clearance.
In 1996 Applicant filed for Chapter 7 bankruptcy protection, being discharged later that year.  Since
that time she has amassed $48,039.00 in delinquent debts, of which $33,263 remained unpaid as of
the date of the decision.  
Applicant married in 1989, but divorced in 1993.  Her ex-husband did not make child support
payments.  She remarried in 2004, but shortly thereafter her husband suffered a stroke, with resulting
kidney failure, requiring a transplant.  He is now on disability.  Additionally, Applicant was
unemployed between September and November 2006.  Her net income from her job is $4,100 a
month, and her husband’s disability pay is $1,300 a month. 
 
Question 20 on the Public Trust Position Application asks if Applicant has any debts over
180 days old.  Applicant replied no to this question.  In fact, she failed to list 11 debts which were
over 180 days in age.  The Judge stated that Applicant contended she had rushed through the
application and had misunderstood the question.
  
B.  Discussion
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The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–such relevant evidence as a reasonable mind might accept as
adequate to support such a conclusion in light of all the contrary evidence in the record.  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 an administrative agency’s findings
from being supported by substantial evidence.”  Consolo v. Federal Maritime Comm’n, 383 U.S.
607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give deference to the
Judge’s credibility determinations.  Directive  ¶  E3.1.32.1.
In the course of arguing the issues raised on appeal, Department Counsel has challenged
some of the Judge’s findings of fact.  The Board will address these challenges below. 
Whether the Record Supports the Judge’s Ultimate Conclusions
The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a
trustworthiness determination if it is arbitrary, capricious, or contrary to law.  See Directive ¶¶
E3.1.32.3 and E3.1.33.3.  Once the government presents evidence raising trustworthiness concerns,
the burden shifts to the applicant to establish any appropriate mitigating conditions.  See Directive
¶ E3.1.15.  “The application of disqualifying and mitigating conditions and whole person factors
does not turn simply on a finding that one or more of them apply to the particular facts of a case.
Rather, their application requires the exercise of sound discretion in light of the record evidence as
a whole.”  See ADP Case No. 05-12037 at 3 (App. Bd. May 10, 2007).  A trustworthiness
determination must be guided by common sense in light of the record as a whole.  See Directive ¶
E2.2.3.  
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ADP Case No. 06-12901 at 4 (App. Bd. Jul. 31,
2007).
On appeal, Department Counsel takes issue with a finding of the Judge to the effect that, of
Applicant’s $48,039 of post-bankruptcy debt, “approximately $14,737 has either been paid or deleted
from the 2007 credit report.  The unpaid delinquent debts now total $33,263.”  Decision at 4.
Department Counsel argues that the absence of certain debts from Applicant’s credit report is
See 15 U.S.C. 1681(c).2
  
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attributable to their age rather than to their having been paid off.   We have examined the record.2
We note that at least some of the debts which the Judge identified as not being on the credit report
were nevertheless acknowledged by Applicant during the hearing as being both legitimate and
unsatisfied, thereby undermining the Judge’s conclusion.  On the other hand, we also note that
Applicant testified that some of the debts, including two substantial ones, were listed on the SOR
twice.  We find nothing in the record that necessarily discredits that testimony.  Therefore, we are
not able to say that the Judge’s conclusion as to the amount of Applicant’s unpaid debt is error.  In
evaluating the Judge’s analysis, therefore, we will assume that the amount of debt at issue here is
$33,263.
In deciding the case favorably to Applicant, the Judge applied two mitigating conditions,
FCMC 3 and FCMC 6.  The former mitigates bad debt trustworthiness concerns when an applicant’s
financial problems result from “conditions that . . . were largely beyond the person’s control (e.g.
loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or
separation).”  The Judge noted that Applicant had divorced in 1993 and her former husband
subsequently failed to pay child support.  She also noted that Applicant remarried in 2004, but that
her new husband suffered medical problems for which he currently receives disability payments.
While such matters can result in financial difficulties, there appears to be no correlation between
these life-altering events and the financial problems alleged in the SOR.  For example, few of the
alleged debts concern medical bills and those that do are in relatively small amounts.  Indeed,
Applicant’s bad debts appear to be long standing and ongoing, with many of the larger debts pre-
dating her second husband’s illness.  Viewed in its entirety, the record does not support the
conclusion that Applicant has met her burden of persuasion under this mitigating condition.
FCMC 6 mitigates security concerns when “[t]he individual initiated a good-faith effort to
repay overdue creditors or otherwise resolve debts.” Applicant provided receipts and other
documentation to corroborate her testimony that she had paid off certain of her debts, or was in the
process of doing so.  However, most of these payments occurred after the issuance of the SOR, many
only within weeks of the hearing.  The debts for which Applicant has provided corroborating
evidence comprise a small fraction of her total amount of unpaid debt.  Furthermore, Applicant has
claimed to have paid off certain debts for which she supplied no corroboration, despite the Judge
having given her an opportunity to do so following the close of the hearing.  Tr. at 117.  Given the
extent of Applicant’s debt problem, and the relative paucity of evidence corroborating her having
made good faith efforts to pay them, the record does not support a conclusion that Applicant has met
her burden of persuasion under this mitigating condition.
Department Counsel has challenged the Judge’s finding that Applicant did not intend to
deceive when she denied having any debts over 180 days old.  Applicant contends that she filled out
her application in haste and did not understand the question, an explanation which the Judge found
to be plausible.  After examining the record, however, the Board notes significant evidence
inconsistent with this finding.  Aside from the fact that the question is clear on its face, we note that
Applicant attended college for a year, a level of education which would make it less likely that she
would misunderstand the question at issue.  Similarly, her position as a budget analyst suggests a
See Response to SOR: “Not taking time to read the question how it was presented, I rushed through the3
question causing me to read the question wrong and answer incorrectly.”  Compare with Gov. Ex. 2, Response to
Interrogatories, at 6: “I did not receive any paperwork that would allow me to list debt.  My clearance was supposed to
transfer from my last employer who had a list of all debt.”  Compare also with Tr. at 99: “. . . I had no idea of days at
the time, but at the time looking at 180 days, I’m thinking to myself there’s no way I can have anything that high, as far
as the days are concerned.  And I was thinking I’m sure at the time I’m thinking 120 days at the most, a couple of months,
because I knew before I had had debt.”
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level of sophistication at odds with her claim of having not understood the matters which the
question sought to elicit.  Furthermore, she has previously filled out a security clearance application,
thereby demonstrating general familiarity with the kind of matters covered in adjudications of this
sort.  Additionally, in her response to the SOR, her answer to interrogatories, and in her testimony
at the hearing, Applicant provided inconsistent explanations for her having given an incorrect
response to this question.   Applicant’s testimony under cross examination failed to resolve these3
inconsistencies, and the Judge did not address them.  See Tr. at 94-100; Decision at 7.  When
combined with her apparent awareness of her lengthy debt problems, we conclude that the Judge did
not evaluate Applicant’s explanation in light of all the contrary record evidence and that her finding
that the Government failed to meet its burden of production is error.  Furthermore, the Board’s
examination of the record evidence provides no basis to conclude that Applicant had met her burden
of persuasion as to mitigating the Guideline E trustworthiness concerns.
The Board has examined the Judge’s whole person analysis.  The Judge stated that Applicant
is “eager to resolve her financial problems” and could benefit from financial counseling.  Decision
at 7.  She also noted Applicant’s husband’s medical problems.  Although these are matters which
can properly be taken into account in a whole person analysis, the Board concludes that, read  in light
of the contrary record evidence, they are insufficient to sustain the Judge’s favorable decision.  Given
the extent of Applicant’s bad debt, the relative lack of corroboration for those debts she claims to
have paid off, her failure seriously to pursue financial counseling, and her inconsistent statements
concerning the Guideline E trustworthiness concern, we hold that the Judge’s application of the
mitigating conditions and her whole person analysis are arbitrary and capricious.
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Order
The Judge’s favorable trustworthiness determination is REVERSED.  
   
Signed: Jean E. Smallin              
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields            
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody              
James E. Moody
Administrative Judge
Member, Appeal Board