1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) -------------------------- ) ISCR Case No. 07-06246 SSN: ------------------ ) ) Applicant for Security Clearance ) Appearances For Government: Gina L. Marine, Esquire, Department Counsel For Applicant: Pro Se April 17, 2008 ______________ Decision ______________ MOGUL, Martin H., Administrative Judge: Applicant submitted her Security Clearance Application (SCA) (Item 8), on June 22, 2006. On July 12, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) (Item1) detailing the security concerns under Guidelines F and E for Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006. Applicant responded three times to the SOR (RSOR) in writing, the first two signed but undated (Items 3 and 5), and the third, dated August 28, 2007 (Item 7), in which she requested that her case be decided on the written record in lieu of a hearing. 2 On November 16, 2007, Department Counsel issued the Department's written case. A complete copy of the file of relevant material (FORM) was provided to Applicant, and she was given the opportunity to file objections and submit material in refutation, extenuation, or mitigation. A response was due on February 3, 2008. Applicant did not submit any additional evidence. The case was assigned to this Administrative Judge on March 27, 2008. In the FORM, Department Counsel offered 11 documentary exhibits (Items 1-11). No documents were offered by Applicant. Based upon a review of the case file, pleadings, and exhibits, eligibility for access to classified information is denied. Findings of Fact Paragraph 1 (Guideline F- Financial Considerations) In her RSOR (Items 3,5, and 7) Applicant admitted all of the SOR allegations under Guideline F. The admitted allegations are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, including the FORM, Applicant's RSOR and the other admitted documents, and upon due consideration of that evidence, I make the additional findings of fact: Applicant is 44 years old. She works for a defense contractor, and she seeks a DoD security clearance in connection with her employment in the defense sector. The SOR lists 20 allegations (1.a. through 1.t.) regarding financial difficulties under Adjudicative Guideline F. As reviewed above, Applicant admitted all of these allegations in her RSOR, and no evidence was introduced to modify or dispute these allegations and admissions. All of the allegations will be discussed in the same order as they were listed in the SOR: 1.a. This overdue debt is cited in the SOR in the amount of $2,612. No evidence has been introduced to establish that any of this debt has been paid. 1.b. This overdue debt is cited in the SOR in the amount of $2,121. No evidence has been introduced to establish that any of this debt has been paid. 1.c. This overdue debt is cited in the SOR in the amount of $1,941. No evidence has been introduced to establish that any of this debt has been paid. 1.d. This overdue debt to is cited in the SOR in the amount of $306. No evidence has been introduced to establish that any of this debt has been paid. 1.e. This overdue debt is cited in the SOR in the amount of $333. No evidence has been introduced to establish that any of this debt has been paid. 3 1.f. This overdue debt is cited in the SOR in the amount of $566. No evidence has been introduced to establish that any of this debt has been paid. 1.g. This overdue debt to is cited in the SOR in the amount of $151. No evidence has been introduced to establish that any of this debt has been paid. 1.h. This overdue debt to is cited in the SOR in the amount of $38. No evidence has been introduced to establish that any of this debt has been paid. 1.i. This overdue debt to is cited in the SOR in the amount of $8,343. No evidence has been introduced to establish that any of this debt has been paid. 1.j. This overdue debt to is cited in the SOR in the amount of $17. No evidence has been introduced to establish that any of this debt has been paid. 1.k. This overdue debt to is cited in the SOR in the amount of $168. No evidence has been introduced to establish that any of this debt has been paid. 1.l. This overdue debt to is cited in the SOR in the amount of $252. No evidence has been introduced to establish that any of this debt has been paid. 1.m. Applicant’s wages were garnished in the amount of $2,065.65 on July 2005. This debt was satisfied on December 6, 2006. 1.n. This overdue debt to is cited in the SOR in the amount of $298. No evidence has been introduced to establish that any of this debt has been paid. 1.o. This overdue debt to is cited in the SOR in the amount of $83. No evidence has been introduced to establish that any of this debt has been paid. 1.p. This overdue debt to is cited in the SOR in the amount of $25. No evidence has been introduced to establish that any of this debt has been paid. 1.q. This overdue debt to is cited in the SOR in the amount of $181. No evidence has been introduced to establish that any of this debt has been paid. 1.r. This overdue debt to is cited in the SOR in the amount of $959. No evidence has been introduced to establish that any of this debt has been paid. 1.s. This overdue debt to is cited in the SOR in the amount of $405. No evidence has been introduced to establish that any of this debt has been paid. 1.t. This overdue debt to is cited in the SOR in the amount of $106. No evidence has been introduced to establish that any of this debt has been paid. Applicant’s overdue debts were accumulated over a period from at least July 2002 until as recently as March 2007. There is no indication in the record that Applicant 4 ever received financial counseling, nor is there any explanation for Applicant’s failure to resolve even the smallest of overdue debts. In her RSOR, Applicant stated that she lost her job as a casino dealer on March 3, 2003. As a result of her unemployment her home had to be sold, two days before it was scheduled to be foreclosed, and her vehicle was repossessed. She further indicated that her employment since that time has not compensated her sufficiently for her to become more financially sound. Paragraph 2 (Guideline E - Personal Conduct) 2.a. Applicant executed a signed SCA on June 22, 2006 (Item 8). Question 28.a. asks, “In the last 7 years, have you been over 180 days delinquent on any debt(s)?” Applicant answered “No” to this question, and she listed no debts. The Government alleges that Applicant should have included the debts listed in the SOR as 1.a. through 1.o. Applicant did not respond to this SOR allegation in her RSOR, but clearly all of these debts had been delinquent for more than 180 days when Applicant completed and executed the SCA. She also failed to give any possible explanation for her failure to admit any overdue debts and at least list some of those debts for which she was more than 180 days overdue. 2.a. Question 28.b. of the SCA asks, “Are you currently over 90 days delinquent on any debt(s)?” Applicant answered “No” to this question, and she listed no debts. The Government alleges that Applicant should have included the debts listed in the SOR as 1.a. through 1.o. Applicant also did not respond to this SOR allegation in her RSOR, but there is no dispute that these debts were more than 90 days delinquent when Applicant completed and executed the SCA. Applicant also failed to give an explanation for her failure to admit that, at the time she completed the SCA, she had current debts that were more than 90 days overdue. Policies When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an Applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The Administrative Judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as 5 the “whole person concept.” The Administrative Judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” 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. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security decision. 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 include, by necessity, consideration of the possible risk the 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. Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline F, Financial Considerations The Government has established that Applicant has had a history of financial difficulties and overdue debts. Regarding the Disqualifying Conditions (DC) under Guideline F, I conclude both DC 19. (a) and DC (c) apply, because of Applicant’s inability or unwillingness to satisfy her debts, and her long history of not meeting her financial obligations. I can not find that any Mitigating Condition (MC) applies. While MC 20.(b) could initially be argued to apply since some of Applicants financial problems were as a result of her loss of employment, it has not been established that Applicant has acted 6 responsibly under the circumstances, since she has failed to resolve any of her overdue debts, even those debts for which a minimal amount is owing, and she has failed to seek any financial counseling which could help to resolve financial difficulties now and in the future. I, therefore, hold Guideline F against Applicant. Guideline E, Personal Conduct With respect to Guideline E, the evidence establishes that Applicant provided incorrect material information to the Government on the SCA that she executed on June 22, 2006. Applicant identified no debts that were over 180 days overdue in the last seven years prior to her completing the SCA, nor any current debts that were over 90 days overdue, when clearly she should have identified the debts listed on the SOR. Applicant had no explanation for her failure to put the Government on notice that she had financial difficulties. The Government relies heavily on the honesty and integrity of individuals seeking access to our nation’s secrets. When such an individual intentionally falsifies material facts or fails to furnish relevant information to the Government, it is extremely difficult to conclude that she nevertheless possesses the judgment, and honesty necessary for an individual given a clearance. In this case, based on Applicant’s overall history, my inability to see the Applicant and judge her veracity in person, and the lack of any witness to provide testimony regarding Applicant’s character, I can find no reasonable explanation for Applicant’s failure to provide this very significant information to the Government on the SCA, and I must conclude that Applicant knowingly and willingly failed to give complete, honest information to the Government. In reviewing the DCs under Guideline E, I conclude that DC16. (a) applies because Applicant deliberately provided false and misleading information to the Government in a SCA. No Mitigating Condition applies under this Guideline. As a result of the misinformation that Applicant provided to the Government, her conduct exhibits questionable judgement, unreliability, and a lack of candor. I resolve Guideline E against Applicant. On balance, it is concluded that the Applicant has not overcome the Government's evidence opposing her request for a security clearance. Accordingly, the evidence supports a finding against Applicant as to the allegations expressed in Paragraphs 1 and 2 of the Government's SOR. Whole Person Concept Under the whole person concept, the Administrative Judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the circumstances. The Administrative Judge should consider the nine adjudicative process factors listed at AG ¶ 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 7 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.” Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole person concept. I have considered the potentially disqualifying and mitigating conditions under Guidelines F and E, in light of all the facts and circumstances surrounding this case. Based on all of the reasons cited above, including Applicant’s history of financial difficulties, her failure to resolve the overdue debts, even the very small ones, and her willful omissions made to the Government, I find that the record evidence leaves me with significant questions and doubts as to Applicant’s eligibility and suitability for a security clearance under the whole person concept. For all these reasons, I conclude Applicant has not mitigated the security concerns. 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 F: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: Against Applicant Subparagraph 1.d: Against Applicant Subparagraph 1.e.: Against Applicant Subparagraph 1.f.: Against Applicant Subparagraph 1.g.: Against Applicant Subparagraph 1.h.: Against Applicant Subparagraph 1.i.: Against Applicant Subparagraph 1.j.: Against Applicant Subparagraph 1.k.: Against Applicant Subparagraph 1.l.: Against Applicant Subparagraph 1.m.: Against Applicant Subparagraph 1.n.: Against Applicant Subparagraph 1.o.: Against Applicant Subparagraph 1.p.: Against Applicant Subparagraph 1.q.: Against Applicant Subparagraph 1.r.: Against Applicant Subparagraph 1.s.: Against Applicant Subparagraph 1.t.: Against Applicant 8 Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Subparagraph 2.b: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. Martin H. Mogul Administrative Judge