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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 07-13943
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Alison O’Connell, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on September 9, 2006. On December 28, 2007, the Defense Office of Hearings
and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) detailing
security concerns under Guideline E as the basis for its decision to deny his request for
a security clearance. 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 to the SOR in writing on January 22, 2008, and he
requested a hearing. The case was assigned to me on March 5, 2008, and on April 18,
2008, I scheduled a hearing for May 8, 2008. The parties appeared for the hearing as
Two government exhibits (Ex. 1-2) were admitted, and Applicant testified as reflected in a transcript (Tr.)1
received by DOHA on May 19, 2008.
On June 10, 2008, Applicant informed me in a voice mail message that he planned to apply for a grant to2
obtain the funds to address his debts. During a conference call with the parties on June 11, 2008, I extended
the deadline to his response to June 24, 2008.
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scheduled. After the parties presented their evidence,  the SOR was amended on the1
government’s motion to add security concerns under Guideline F. For the reasons set
forth below, eligibility for access to classified information is denied.
Procedural and Evidentiary Rulings
Motion to Amend SOR
Based on Applicant’s hearing testimony on May 8, 2008, the government moved
to amend the SOR at the hearing to allege Guideline F, financial considerations
concerns under a new SOR ¶ 2, as follows:
a. You filed for Chapter 7 bankruptcy in approximately 1995. As a result,
your bankruptcy was granted, and your debts were discharged.
b. You are currently over 180 days delinquent on various debts totaling
approximately $16,0000. As of May 8, 2008, those debts have not been
paid.
Applicant did not object and the motion was granted. Applicant was given 20
days from receipt of written notice of the specific allegations to file his response, either
admit or deny with or without explanation and/or supporting documentation. On May 13,
2008, Department Counsel set forth the allegations in a written motion to amend, which
was received by Applicant on May 19, 2008. On June 11, 2008, the deadline for any
submissions was extended to June 24, 2008, at Applicant’s request and with no
objections from the government.  Applicant submitted no new evidence by the due date.2
Findings of Fact
In the amended SOR, DOHA alleges under Guideline E, personal conduct, that
Applicant was terminated from a job he had held from January 1987 to about March
2006 for an ethics violation in that he knowingly receiving shift-differential pay of
approximately $36,000 to which he was not entitled (SOR ¶ 1.a); that he
misrepresented to company personnel in February 2006 that he worked the night shift
(SOR ¶ 1.b); and that he told his family that he had been laid off rather than that he had
been terminated due to an ethics violation (SOR ¶ 1.c). Under Guideline F, Applicant is
alleged to have been granted a discharge of a Chapter 7 bankruptcy filed in about 1995
(SOR ¶ 2.a) and to owe about $16,000 in delinquent debt over 180 days as of May 8,
2008 (SOR ¶ 2.b). Applicant admitted the Guideline E and Guideline F allegations. After
considering the evidence of record, I make the following findings of fact.
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Applicant is a 45-year-old test technician who requires a secret-level security
clearance for his duties (Ex. 1, Tr.  23). He served in the U.S. military from October
1982 to October 1986 where he held a top secret security clearance (Tr. 22, 24). In
January 1987, he began working for a defense contractor as a test technician (Ex. 1, Tr.
26). He was eventually promoted to an engineering technician position (Tr. 26). 
In 1995, Applicant filed for a Chapter 7 bankruptcy. His debts were discharged,
and he was allowed to keep his secret security clearance (Tr. 25-26, 52).
In July 2004, Applicant was scheduled to switch from the first shift to the second
shift at work where he would be entitled to shift-differential pay. The differential
amounted to 12 percent of his then $16 hourly wage (Tr. 26-27). Applicant was paid the
differential in addition to his salary for about 18 months, even though he did not switch
to the second shift. Applicant noticed almost immediately that he was paid the
differential that he was not entitled to (Tr. 27-28). Applicant claims that after about four
to six weeks, he notified his supervisor, who promised to look into it (Tr. 28). Applicant
did not inform payroll or human resources of the error (Tr. 29), and when the matter
came to the attention of Applicant’s employer, his supervisor did not corroborate his
claim of a relatively timely notification (Tr. 42-43).
In about January or February 2006, Applicant was contacted by an employee in
the human resources’ department about submitting to a random urinalysis. When she
asked him about his work hours, Applicant falsely replied that he worked the second
shift but happened to be on the first shift the day she called. (Tr. 32-33). Applicant
attributes his “wrong decision” to not knowing what to say since he “was in a bad
situation.” Following an investigation, Applicant was involuntarily terminated from his
employment of almost 20 years for violating his employer’s ethics policy (Ex. 1, Ex. 2,
Tr. 34). He was also required to repay the differential monies, which amounted to about
$3,600 (Tr. 34). Applicant took out a loan from his 401(k) to pay his former employer
(Tr. 35). He told his parents that he had been laid off from his job because he was
embarrassed and ashamed for having taken the pay and he did not want to add to their
problems (Tr. 35-36). As of May 2008, he still had not told his family that he had been
fired from his previous job in March 2006 (Tr. 36).
From March to May 2006, Applicant worked as a contract environmental
technician for another defense contractor at $20 an hour (Tr. 49). During the June/July
2006 time frame, Applicant worked only for about a week or so, as a technician for a
medical device company (Ex. 1, Tr. 36).
In August 2006, Applicant began working as a security guard for his current
employer (Ex. 1) at about $17 per hour (Tr. 44). He took the job after he was informed
there would be an opportunity within a few months to be placed as a contract test
technician with a defense contractor (Tr. 24). Needing classified access to at least the
secret level for his expected duties testing products for military applications (Tr. 23),
Applicant executed an e-QIP on September 9, 2006. He disclosed on his e-QIP that he
had been fired from a company in March 2006 for an ethics violation (Ex. 1). In August
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2007, Applicant was interviewed by a government investigator about his termination.
Applicant admitted he had been terminated for taking shift-differential pay to which he
was not entitled. He took no action himself to stop the payments but claimed he had
informed his supervisor of the payroll error. Applicant also admitted that he had lied in
January 2006 when he indicated during a random urinalysis test that he worked the
night shift. Applicant added that he repaid the $3,600 in shift pay in May 2006 (Ex. 2).
Applicant also averred that his former supervisor and human resource personnel are the
only persons aware of his firing. He had told his family he had been laid off rather than
fired from his previous job because he was embarrassed about what he had done (Ex.
2).
Applicant has been laid off from his contract test technician position four times
over the past 18 months, with the longest layoff lasting about three weeks (Tr. 41-42).
He was out of work as of May 2008 but was scheduled to report back May 8, 2008 (Tr.
14). 
Applicant has had ongoing problems with his finances since his bankruptcy
discharge in 1995 (Tr. 31). He took out cash advances to pay his day-to-day living
expenses, including rent, over the years (Tr. 45-46, 52). He made timely payments on
some accounts, including for a television he bought in May 2007 for $700 (Tr. 51), but
other accounts became delinquent. In summer 2007, he entered into a debt
management agreement to repay delinquent obligations. He kept up with payments for
about ten months but he fell behind when he again found himself out of work. After he
failed to make a couple payments, the company terminated the agreement (Tr. 44-45).
Applicant shares a townhouse with one roommate (Tr. 45), so his share of the
rent is $650 per month (Tr. 50). He is not behind on his share of the utilities, but he
owes about $26,000 in credit card debt from the cash advances taken out to pay his
living expenses since 1995 (Tr. 45-46, 52). He is paying double the minimum amount on
most of his credit card accounts, but two of the accounts with an aggregate debt
balance of about $16,000 are more than 180 days past due (Tr. 46-47). Applicant
incurred unexpected medical expenses in the past year. He just paid off the ambulance
debt (Tr. 50), and while he owes about $1,000 for two medical bills, he has been making
those payments on time (Tr. 50-51).
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 overarching
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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
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 E—Personal Conduct
The security concern for personal conduct is set out in AG ¶ 15:
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.
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           For about 18 months from 2004 to about February 2006, Applicant was paid
shift-differential pay that he was not entitled to as a first shift employee. There is no
indication that he initially set out to defraud his employer, but once he noticed the error,
he had an ethical, if not also a legal obligation, to notify his employer. Applicant almost
immediately noticed that he had been paid shift-differential pay amounting to an
additional 12 percent of his hourly rate. He claims that about four to six weeks later, he
informed his supervisor who promised to look into the erroneous payments. The
supervisor did not corroborate this claimed notification during the company’s
investigation into the overpayments. Any notification would have excused inaction by
Applicant for only about an additional month or so while he waited for his supervisor to
look into it. Given his unethical behavior continued until he was caught in a lie about his
shift work in 2006, he bears a heavy burden of overcoming the personal conduct
concerns under AG ¶ 16(d):
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the
person may not properly safeguard protected information. This includes
but is not limited to consideration of: (1) untrustworthy or unreliable behavior to include
breach of client confidentiality, release of proprietary information, unauthorized release
of sensitive or corporate or other government protected information; (2) disruptive,
violent, or other inappropriate behavior in the workplace; (3) a pattern or dishonesty or
rule violations; (4) evidence of significant misuse of Government or other employer’s
time or resources.
Furthermore, his deliberate misrepresentation about his shift hours when called
for the random urinalysis implicates AG ¶ 16(b), “deliberately providing false or
misleading information concerning relevant facts to any employer, investigator, security
official, competent medical authority, or other official government representative.” Since
he still has not told his family about his termination for cause from his previous job,
security concerns are also raised under AG ¶ 16(e), “personal conduct, or concealment
of information about one’s conduct, that creates a vulnerability to exploitation,
manipulation, or duress, such as (1) engaging in activities which, if known, may affect
the person’s personal, professional, or community standing. . . .“
None of the mitigating conditions apply. AG ¶ 17(a), “the individual made prompt,
good-faith efforts to correct the omission, concealment, or falsification before being
confronted with the facts,” would have required at a minimum timely notification of the
payroll error and follow up. Assuming he notified his supervisor within four to six weeks
of the shift differential pay issue, his continued silence for an additional 16 or 17 months
and his deliberate misrepresentation when called for the urinalysis undermine any claim
to a good-faith rectification. Moreover, while Applicant has expressed remorse for his
misconduct (“I fully admit I made a mistake in my judgment and I totally feel that I feel
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very regretful about my situation. And basically I, what I did wasn’t right and I fully admit
it . . .  “ Tr. 13), doubts persist for his judgment where he still refers to the payroll issue
as something that happened to him (“I am just very sorry that I had this thing happen to
me . . .  I’m very choked up about this, what happened to me. . . .“ Tr. 21; “I was, I told
my supervisor about it and, at one time or another, it just never came off of the books,
and I mentioned it once or twice to my supervisor. However, after a various amount of
time, it never went off, so I kept it for myself and then, unfortunately, it became a
situation where I had the urinalysis test.” Tr. 27). Applicant was not put in the  situation
of having to conceal his ethical violations. He chose that avenue for himself, and to the
extent he still views it as unfortunate, he shows little appreciation for his obligation of full
candor. Applicant now acknowledges that he should have told the truth in 2006 (“I
should have told the truth back then. Regretfully, it cost me 20 years of a good job . . . .”
Tr. 39), but again the focus is on what it cost him rather than on how he betrayed the
trust of the government, his employer, and/or his supervisor by his serious ethical
lapses.
AG ¶ 17(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,” also is not pertinent even
as he acknowledges he made a serious mistake. Applicant claims he panicked when he
realized he was still receiving the differential (Tr. 29), but he also admits that he was
having difficulty making ends meet at the time (Tr. 31). Financial stressors cannot be
ruled out as a contributing factor in his failure to correct the payroll error and those
financial pressures still exist (see Guideline F, infra). Applicant owes more than $16,000
in consumer credit debt that is more than 180 days past due.
Finally, Applicant has done nothing to address the vulnerability concerns that
exist because of his efforts to conceal his involuntary termination from his family
members. AG ¶ 17(e), “the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress,” does not apply.
Guideline F, Financial Considerations
The security concern for financial considerations is set out in AG ¶ 18:
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. 
Applicant admitted at his hearing that the special access that he held at the time
was revoked following a Chapter 7 bankruptcy discharge in 1995 (Tr. 25, 52). He
continued to experience financial difficulties, and had problems making ends meet in
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2004/05 during the time that he continued to accept the shift-differential pay. By May
2008, he had accumulated about $26,000 in consumer credit debt, about $16,000 of
which was more than 180 days past due (Tr. 47-48). Security concerns are raised under
AG ¶ 19(a), “inability or unwillingness to satisfy debt,” and ¶ 19 (c) “a history of not
meeting financial obligations.”
Applicant does not deny his ongoing financial struggles (“I was not getting my
pay so right now I am in destitute, right now.” Tr. 44). Last summer he apparently
entered into a debt repayment plan to resolve his delinquent debt (see AG ¶ 20(d),  “the
individual initiated a good-faith effort to repay overdue creditors or otherwise resolve
debts”), but the plan was canceled after he missed two payments due to a job layoff.
Applicant testified with no evidence to the contrary that he has been laid off four times in
the past 18 months (Tr. 41), and he had unexpected medical costs within the past year
(Tr. 50-51). He just paid off an ambulance bill but owes about $1,000 on two other
medical debts that have been consolidated. He was given about six weeks after his
hearing to prove a case for mitigation under AG ¶ 20(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.” Nothing
was submitted by the deadline. An unacceptable security risk exists because of his
ongoing financial pressures.
Whole Person Concept
Under the whole person concept, the administrative judge must evaluate an
Applicant’s eligibility for a public trust position 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) the 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.
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a public
trust position must be an overall commonsense judgment based upon careful
consideration of the guidelines and the whole person concept. 
I considered the disqualifying and mitigating conditions in light of all the facts and
circumstances surrounding this case. The government must be assured that those
persons with classified access can be counted on to exercise good judgment at all
times. Applicant exercised extremely poor judgment by failing to correct a payroll error.
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He compounded the personal conduct concerns by lying about his shift hours in
February 2006 out of fear that his unethical behavior would be discovered, and he still
has not been candid with his family about his job loss. He has had ongoing financial
problems since before 1995 due in part to lack of income, but his use of consumer
credit card cash advances to pay for his living expenses raises considerable doubts
about his ability to handle his finances responsibly. I am unable to conclude that
Applicant possesses the requisite good judgment, reliability, and trustworthiness that
must be demanded of those with access.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the
amended SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline E: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Paragraph 2, Guideline F: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Conclusion
In light of all of the circumstances, it is not clearly consistent with the national
interest to grant Applicant eligibility for a security clearance. Eligibility for access to
classified information is denied.
_________________________
ELIZABETH M. MATCHINSKI
Administrative Judge