DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 07-02123
SSN:------------------ )
)
Applicant for Security Clearance )
Appearances
For Government: Candace Le’i, Department Counsel
For Applicant: Alexandra Kaan, Esquire
April 28, 2008
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Decision
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LOKEY-ANDERSON, Darlene D., Administrative Judge:
The Applicant submitted his Electronic Questionnaire for Investigative Processing
(e-QUIP) on April 21, 2006.  On June 27, 2007, the Defense Office of Hearings and
Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and Department of
Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of
Reasons (SOR) to the Applicant, which detailed the 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 the Applicant and
recommended referral to an Administrative Judge to determine whether a clearance
should be denied or revoked.  
The Applicant responded to the SOR on August 3, 3007, and he requested a
hearing before a DOHA Administrative Judge.  This case was assigned to the
undersigned on October 11, 2007.  A notice of hearing was issued on January 29, 2008,
and the hearing was scheduled for February 29, 2008.  At the hearing the Government
submitted presented eight exhibits, referred to as Government Exhibits 1 through 8.
The Applicant presented twelve exhibits, referred to as Applicant’s Exhibits A through L,
and testified on his own behalf.  Applicant submitted his First Amended Response to the
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SOR that was admitted into evidence without objection.  (See Applicant’s Exhibit D).
The official transcript (Tr.) was received on March 19, 2008.
FINDINGS OF FACT
The following Findings of Fact are based on the Applicant’s Answer to the SOR,
the testimony and the exhibits.  The Applicant is 53 years old and is currently married to
a Thai national.  He is employed by a defense contractor as a Chief Steward and is
seeking to obtain a security clearance in connection with his employment.  
The Government opposes the Applicant's request for a security clearance, on the
basis of allegations set forth in the Statement of Reasons (SOR).  After a complete and
thorough review of the evidence in the record, and upon due consideration of the same,
the following findings of fact are entered as to each paragraph and guideline in the
SOR:
Paragraph 1 (Guideline F - Financial Considerations)  The Government alleges that the
Applicant is ineligible for a security clearance because he is financially overextended
and at risk to engage in illegal acts to generate funds. 
The Applicant explained that he and his first wife were both merchant mariners
and jointly earned approximately $140,000.00 annually.  (Tr. p. 64).  They paid their bills
on time and their credit was excellent.  In mid-summer 2000, the Applicant’s wife was
diagnosed with lung cancer and was unable to work from that point on.  The Applicant
became the sole supporter of the household.  The Applicant’s indebtedness became
overwhelming and they subsequently lost everything.  He tried to work with their
creditors but was offered no relief.  
Due to her illness, related depression and marital discord, the Applicant and his
wife separated in June 2001.  He last communicated with her in May or June 2002.  In
December 2004, the Applicant’s wife died.  (See Applicant’s Exhibit J).  It was not until
March 2005, that the Applicant learned of his wife’s death from a union officer, since
they were both members of the same maritime union, and there were questions
regarding whether the Applicant’s signature had been forged on some particular
document.     
The SOR alleges eighteen delinquent creditors that total indebtedness in excess
of $70,000.00.  In his First Amended Response to the SOR, the Applicant admits in part
and denies in part the delinquent debts set forth in allegations 1(a), 1(d), 1(e), 1(g), 1(k),
1(m), 1(n), 1(o), 1(p), 1(q) and 1(r) of the SOR.  He admits that the debts were at one
time owing, that they were his wife’s debts, and that his wife discharged the debts on
March 17, 2003, by way of a Chapter 7 Bankruptcy.  (See Applicant’s Exhibit D).  Credit
reports of the Applicant dated June 12, 2006; December 5, 2006; and October 11, 2007,
reflect each of the delinquent debts listed in the SOR.  (See Government Exhibits 2, 3
and 8).  
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In his First Amended Response to the SOR, he admits, without reservation, that
the delinquent debts set forth in allegations 1(b), 1(g), 1(h), and 1(k) are his debts.  (See
Applicant’s Exhibit D).  The Applicant admits the debts owed to Asset Acceptance in the
amount of $ 4,119.00, which he claims may be the same debt as Providian, but he is
not sure; Macy’s in the amount of $574; a debt owed to MCDF/CBSD in the amount of
$3,410.00; and a debt owed to GEMB/J.C. Penneys in the amount of $852.00.  They
total in excess of $8,0000.00.  
The Applicant’s testimony at the hearing varied dramatically from his written
response to the SOR.  The Applicant testified equivocally with regard to many of the
debts stating that he is not sure whether they are his debts or his wife’s debts.  He avers
that the debt to Asset Acceptance in the amount of $4,119.00 could be his wife’s.  (Tr.
p. 51).  He does not know if the debt to Macy’s in the amount of $574.00 is his debt or
not, but that he did have a Macy’s credit card.  (Tr. p. 53).  The J.C Penney debt in the
amount of $852.00 may also be his debt, but he is not sure.  The debt to Greentree
Financial Corp. in the amount of $7,718.00 was a debt on the family residence, although
he thought it was paid.  He is not sure whether the debt in the amount of $359.00 owed
to JJ MacIntyr is his or his wife’s.  (Tr. 54).  He does not recall the debt to MCDF/CBSD
in the amount of $3,410.00 or the debt to NCO Financial in the amount of $1,624.00.
He does not know whether the debt to MBNA in the amount of $4,031.00 is his, his
wife’s, or is a joint debt.  (Tr. p. 58).   
The Applicant avered with more certainty that the following debts are not his
debts, but are his wife’s debts, since he did not have these accounts; four American
Express Accounts in the total amount of $28,207.00; a debt to Discover card in the
amount of $10,839.00; a debt to Exxon Mobil in the amount of $269.00; and a debt to
Portfolio RC in the amount of $269.00 (Tr. p. 57).
In May 2007, over a year ago, realizing that his finances were in disarray, the
Applicant hired a law firm to help him with his delinquent debt.  (See Applicant’s Exhibit
K).  He indicates that their job was to verify the debts listed on his credit report.  Once
the debts were verified and determined to be his, he would pay them.  The Applicant
has not received any verification as of yet.  (Tr. p. 67).
The Applicant states that he has recently paid off a debt to Westridge Financial in
the amount of $414.00, (Tr. p. 59); a debt to Credit Bur Cen in the amount of $519.00,
even though he admits that it was his wife’s debt (Tr. p. 52); and a debt to Providian
Bank in the amount of $3,456.00  (Tr. p. 58).  He presented no documentation to
substantiate these payments.  
A copy of a credit card debit on January 16, 2008, shows that a payment of
$2,500.00 was made to Nelson Watson Pinnacle, which the Applicant believes might be
representing Midland credit management.  The Applicant states that this payment
settled the debt.  (See, Applicant’s Exhibit I).  There was also some testimony that the
debt to MCDF/CBSD may be the same as the Midland credit management debt, but the
Applicant presented no documentary evidence to substantiate this.     
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Recently, the Applicant learned that his wife, prior to her death, filed Chapter 7
Bankruptcy, and her debts from the marriage were discharged on March 17, 2003.  The
Applicant submitted a copy of the Bankruptcy matrix to prove that the debts listed in the 
SOR were discharged.  (See Applicant’s Exhibit E).  The Applicant was not named as a
petitioner in her Bankruptcy and has not filed Bankruptcy on his own behalf.  (Tr. p. 66). 
Although the credit reports presented by the Government reflect each of the
delinquent debts listed in the SOR, these credit reports pre-date the credit report offered
by the Applicant.  The Applicant’s most recent credit report dated January 28, 2008,
from one of the reporting agencies reflects four of the delinquent debts set forth in the
SOR.  A debt to Asset Acceptance in the amount of $4,273.00; a debt to Midland Credit
in the amount of $6,704.00; a debt to Verizon in the amount of $1,727.00; and a debt to
Macy’s in the amount of $573.00.  At least three of the four debts remain delinquent and
owing and total in excess of $6,000.00.  (See Applicant’s Exhibit L).  When asked what
his intention is concerning his delinquent debts, the Applicant stated, 
 “I will pay them, or I will enter into an agreement.  I am --I am trying to
rebuild a life, that’s all.  I can’t do it all -- I couldn’t do it all at once.  Now, if
this is presented to me in a format that I can deal with, that’s what I have
been trying to do to the best of my ability.  I will pay any debt that is
brought to me that is valid.”  (Tr. p. 118).  
The Applicant has recently tried to make contact with some of these creditors.
The Applicant through his present attorney, recently sent a letter to one of the credit
agency’s disputing his debt to Verizon in the amount of $1,700.00. (See Applicant’s
Exhibit B).  Applicant believes that because he only had the phone two days before
going out to sea and had no service while out to sea, his bill should not be $1,700.00.
Performance evaluations of the Applicant reflect “excellent ratings” on the job for
the periods January 2006 through April 2006, May 2007 through July 2007 and
December 2007 through February 2008.  (See Applicant’s Exhibit A).
Letters of recommendation from the Applicant’s supervisor, the project manager,
and the facility security officer of the vessel, collectively indicate that the Applicant is a
true professional, with outstanding work performance.  His work ethic, maturity and
positive attitude make him a valuable asset.  He has been responsible for a large
consumable budget, direct interaction with vendors, produce usage and handling which
all have direct impact on overall project budget and expenditures.  He is highly
motivated, and a team member with the highest level of integrity and ability.  He is
highly recommended for a position of trust.  (See Applicant’s Exhibit C).   
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POLICIES
Enclosure 2 of the Directive sets forth adjudication policies divided into "Disqualifying
Factors" and "Mitigating Factors."  The following Disqualifying Factors and Mitigating
Factors are found to be applicable in this case:
Guideline F (Financial Considerations)
18.  The Concern.  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.  Compulsive gambling is a concern as it may lead to financial crimes including
espionage.  Affluence that cannot be explained by known sources of income is also a
security concern.  It may indicate proceeds from financially profitable criminal acts.
Conditions that could raise a security concern:
19.(a)  inability or unwillingness to satisfy debts;
19.(c)  a history of not meeting financial obligations.
Conditions that could mitigate security concerns:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 16-17,  in evaluating the
relevance of an individual’s conduct, the Administrative Judge should consider the
following general factors:
a.  The nature and seriousness of the conduct and surrounding circumstances
b.  The circumstances surrounding the conduct, to include knowledgeable
participation
c.  The frequency and recency of the conduct
d.  The individual’s age and maturity at the time of the conduct
e.  The voluntariness of participation
f.  The presence or absence of rehabilitation and other pertinent behavior
changes
g.  The motivation for the conduct 
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h. The potential for pressure, coercion, exploitation or duress
 i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal characteristics
and conduct which are reasonably related to the ultimate question, posed in Section 2
of Executive Order 10865, of whether it is “clearly consistent with the national interest”
to grant an Applicant’s request for access to classified information.
The DoD Directive states, “The adjudicative process is an examination of a sufficient
period of a person’s life to make an affirmative determination that the person is an
acceptable security risk.  Eligibility for access to classified information is predicted upon
the individual meeting these personnel security guidelines.  The adjudicative process is
the careful weighing of a number of variables known as the whole person concept.
Available, reliable information about the person, past and present, favorable and
unfavorable should be considered in reaching a determination.” The Administrative
Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record.  The Judge cannot draw inferences or conclusions
based on evidence which is speculative or conjectural in nature.  Finally, as emphasized
by President Eisenhower in Executive Order 10865, “Any determination under this order
. . . shall be a determination in terms of the national interest and shall in no sense be a
determination as to the loyalty of the Applicant concerned.”
CONCLUSIONS
In the defense industry, a security clearance is entrusted to civilian workers who
must be counted upon to safeguard such sensitive information twenty-four hours per
day, seven days per week.  The Government is therefore appropriately concerned when
available information indicates that an Applicant for such access may be involved in
instances of financial irresponsibility which demonstrates poor judgment or unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s conduct and the
holding of a security clearance.  If such a case has been established, the burden then
shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation
which is sufficient to overcome or outweigh the Government’s case.  The Applicant
bears the ultimate burden of persuasion in proving that it is clearly consistent with the
national interest to grant him a security clearance.
In this case the Government has met its initial burden of proving that the
Applicant has been financially irresponsible (Guideline F).  This evidence indicates poor
judgment, unreliability and untrustworthiness on the part of the Applicant.  Because of
the scope and nature of the Applicant's conduct, I conclude there is a nexus or
connection with his security clearance eligibility.
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The evidence shows that circumstances beyond the Applicant’s control initially
caused his financial hardships.  Namely, when he became the sole supporter of the
household, following his wife’s lung cancer diagnosis, their separation, and her eventual
death.  The question now is whether he has acted responsibly since then.  He has not.  
Before her death, the Applicant’s wife filed Chapter 7 Bankruptcy and discharged
her debts.  Any joint debts incurred during the marriage would continue to be the
Applicant’s legal and moral responsibility to pay.  On the one hand, the Applicant is
uncertain about many of the debts listed in the SOR, and contends that he does not
know whether they are his or his wife’s  debts.  On the other hand, he asserts that they
were his wife’s debts and he mistakenly relies on the Bankruptcy matrix to show that the
debts were discharged.  The Bankruptcy matrix lists a number of the creditors including
many of the debts listed in the SOR.  However, the matrix simply verifies that those
creditors listed were provided notice of the bankruptcy and that the debts may have
been discharged.  It does not in any way prove that the debts are no longer owed by the
Applicant.  Despite this, giving the Applicant the benefit of the doubt, I find for the
Applicant regarding the delinquent debts set forth in allegations 1(a), 1(c), 1(d), 1(f), 1(i),
1(j), 1(l), 1(m), 1(n), and 1(o).     
Based upon the evidence, the Applicant clearly owes the delinquent debts listed
in the SOR set forth in allegations 1(b), 1(g), 1(h), and 1(k), and he is disputing the
amount of the debt owed in 1(q).  As to the delinquent debts, set forth in allegations
1(e), 1(p), and 1(r), the evidence is mixed.  He contends that he has paid them, but has
submitted no documentary evidence to substantiate the payoffs.  It is his burden to
show me that he no longer owes these debts, and he has not done it.  The Applicant
has had sufficient time since his wife’s death in December 2004, to get his finances in
order and resolve his indebtedness.  He has failed to do so.      
The Applicant’s finances are still in disarray.  Despite the fact that in March 2007,
he hired a law firm to assist him in determining which debts were his, the evidence
shows that very little, if anything, has been resolved since then.  I have considered the
fact that his present attorney has recently sent letters to the credit agencies concerning
his debts.  However, at the present time, he does not know what he owes.              
Upon review of his financial report, it appears that he has some disposable
income at the end of the month to pay his delinquent bills, but he has not used it in any
significant way to resolve his indebtedness.  His most recent payment made was by
debit card.  Under Guideline F (Financial Considerations), Disqualifying Conditions
19(a) inability or unwillingness to satisfy debts, and 19(c) a history of not meeting
financial obligations are applicable.  None of the mitigating factors apply.  His financial
problems remain current, they are not isolated, and the Applicant has not initiated a
prompt, good faith effort to repay his overdue creditors or otherwise resolve his debts. 
I have also considered the “whole person concept” in evaluating the Applicant’s
eligibility for access to classified information.  I have considered among other things, his
favorable performance evaluations and letters of recommendation.  However, under the
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particular facts of this case, the totality of the conduct set forth under all of the
guidelines viewed as a whole, support a whole person assessment of questionable
judgement, untrustworthiness, unreliability, lack of candor, unwillingness to comply with
rules and regulations, or other characteristics indicating that the person may not
properly safeguard classified information.  The Applicant remains excessively indebted.
He has only begun the process of financial rehabilitation, and he has a long way to go
before his financial affairs are in order.      
This Applicant has not demonstrated that he is trustworthy, and does not meet
the eligibility requirements for access to classified information.  Accordingly, I find
against the Applicant under Guideline F (Financial Considerations).  
On balance, it is concluded that the Applicant has failed to overcome the
Government's case opposing his request for a security clearance.  Accordingly, the
evidence supports a finding against the Applicant as to the factual and conclusionary
allegations expressed in Paragraph 1 of the Government's Statement of Reasons.     
FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
    Subpara.  1.a.: For the Applicant.
    Subpara.  1.b.: Against the Applicant.
    Subpara.  1.c.: For the Applicant.
    Subpara.  1.d.: For the Applicant.
    Subpara.  1.e.: Against the Applicant.
    Subpara.  1.f.: For the Applicant.
    Subpara.  1.g.: Against the Applicant.
    Subpara.  1.h.: Against the Applicant.
    Subpara.  1.i.: For the Applicant.
    Subpara.  1.j.: For the Applicant.
    Subpara.  1.k.: Against the Applicant.
    Subpara.  1.l.: For the Applicant.
    Subpara.  1.m.: For the Applicant.
    Subpara.  1.n.: For the Applicant.
    Subpara.  1.o.: For the Applicant.
    Subpara.  1.p.: Against the Applicant.
    Subpara.  1.q.: Against the Applicant.
    Subpara.  1.r.: Against the Applicant.
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DECISION
In light of the circumstances presented by the record in this case, it is not clearly
consistent with the national interests to grant or continue a security clearance for the
Applicant.
  Darlene Lokey Anderson
Administrative Judge