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                             DEPARTMENT OF DEFENSE
              DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-----------, ----------- )       ADP Case No. 06-21835
SSN: ------ ---- -------- )
)
Applicant for Public Trust Position )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro Se
                                                                            
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Decision
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WHITE, David M., Administrative Judge:
Applicant has a lengthy history and substantial amount of delinquent debt that he
cannot repay. He falsified his Trustworthiness Application concerning these debts.
Based upon a review of the case file, pleadings, and exhibits, eligibility for access to
sensitive information is denied.
Applicant submitted his Questionnaire for Public Trust Positions (SF 85P), on
October 26, 2005. On April 4, 2008, the Defense Office of Hearings and Appeals
(DOHA) issued a Statement of Reasons (SOR) detailing the trustworthiness concerns
under Guideline F (Financial Considerations), Guideline E (Personal Conduct), and
Guideline J (Criminal Conduct 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);
Department of Defense (DoD) Regulation 5200.2-R, Personnel Security Program, dated
Jan. 1987, as amended (Regulation), 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. 
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Applicant acknowledged receipt of the SOR on April 15, 2008. He answered the
SOR in writing, and requested a hearing before an administrative judge, in an undated
response that was received by DOHA on April 28, 2008 (Answer). Department Counsel
was prepared to proceed on May 30, 2008, and DOHA assigned the case to me on
June 4, 2008. 
DOHA issued a notice of hearing on June 10, 2008, and Applicant
acknowledged receiving it at least 15 days before the hearing. (Tr. at 11.) Although his
signed receipt for the hearing notice that was delivered through his company’s facility
security officer was dated June 24, 2008, he did receive a copy of the notice via
electronic mail on June 10, 2008. I convened the hearing as scheduled on June 25,
2008. Department Counsel offered Government Exhibits (GE) 1 through 7, which were
admitted without objection. Applicant testified on his own behalf, and submitted
Applicant’s Exhibits (AE) A through C, which were admitted without objection. I granted
Applicant’s request to leave the record open until July 11, 2008, in order for him to
submit additional evidence. DOHA received the transcript of the hearing (Tr.) on July 3,
2008. On July 11, 2008, Applicant submitted two additional documents to Department
Counsel. He did not submit any further evidence, and Department Counsel forwarded
Applicant’s submission without objection to its consideration on July 12, 2008. These
documents were marked AE D, and the record was closed.
Findings of Fact
Applicant is a 34-year-old employee of a defense contractor. His two annual
performance evaluations reflected ratings of 3.05 and 3.20 on a scale of 1 to 5. (AE A;
AE B.) In his answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.b,
1.g, and 1.m, of the SOR, and denied the remaining allegations. These three admitted
delinquent debts, totaling $6,482, are owed to a jewelry store, a credit union and a
university. They became delinquent in 2001, 2004, and 2007, respectively. Applicant’s
admissions are incorporated herein as findings of fact. 
Applicant claimed that the three delinquent debts totaling $2,685, described in
SOR ¶¶ 1.a, 1.f, and 1.i, were fraudulently opened in his name by someone else. One
was a credit card account and two were for mobile phone services. During an interview
with an OPM investigator on March 7, 2007, he claimed a man stole his driver’s license
and military ID, and these accounts were opened shortly thereafter. He disputed the
debts with the creditors, who insisted that they were legitimately his debts after
investigations. During the hearing, he said it was a woman to whom he had given
access to everything in his apartment who he suspected of starting these accounts. He
confirmed that, after investigation, the companies insisted the debts were his, and
acknowledged that they remain unpaid. (Answer at 1, 2, 4; GE 5 at 4; Tr. at 31-33, 40,
44-45.)
Applicant claimed to have paid the $1,738 judgment debt listed in SOR ¶ 1.d.
Actually, he said his mother paid it by credit card and he repaid her with cash and
money orders. Although he testified that he had no evidence that this debt was paid, he
later submitted a letter from the judgment creditor showing that an apartment-related
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debt had been paid. (Tr. at 68-69; AE D at 3.) However, the record evidence reflects
that this judgment related to a different debt, since the payment of the apartment debt
was reflected on two subsequent credit bureau reports (CBR) along with the unpaid
judgment, which remains reported as unpaid on his most recent CBR as well. During
his OPM interview, he explained that a judgment was entered against him during the
same month, and in the same court, as the allegation in ¶ 1.d, for unpaid traffic tickets.
He then stated that he had paid that judgment, although no such payment is reflected in
any record CBR. (Compare GE 2 at 1-2; GE 3 at 3, 10; GE 5 at 4; GE 6 at 1.) The
same collection agency creditor has reported two additional apartment-related debts in
collections, as alleged in SOR ¶¶ 1.e and 1.h. Applicant stated that these debts are for
past-due rent on his wife’s apartment before they were married, and on their shared
apartment where she remained when he moved to another city after they separated in
2004. He testified that they are still married, though separated, and he will likely be held
responsible for both debts, totaling $2,606. (Tr. at 37-40.)
Applicant denied owing the four remaining debts, listed in SOR ¶¶ 1.c, 1.j, 1.k,
and 1.l, because he does not know what each of them is. However, he has neither
disputed them with the credit bureaus, nor made any effort to investigate their validity.
These debts, of which two became delinquent in 2001 and the other two in 2005, total
$3,398. (GE 4 at 1-2; Tr. at 35-36, 43-44.) 
In late April 2008, Applicant retained an attorney to file for Chapter 7 bankruptcy
relief. (AE C.) In July, after his hearing, he provided the remaining necessary paperwork
to the attorney. As of the date the record closed, the petition had not been prepared or
filed. (AE D at 4.) Applicant’s income is barely sufficient to meet his monthly expenses,
and he has no savings. His two cars are paid off. His net pay is about $1,000 each two
weeks. He pays $750 per month to his wife for child support and $600 per month in
rent. The remainder of his earnings go toward present living expenses. He attributed his
financial problems to, “unemployment and just being un-responsible altogether,” and
said his wife did not cause any of his delinquent debt. He was unemployed from April
2001 to May 2002, after his productivity at the car dealership where he worked
declined, and again from September 2003 to January 2004 for unexplained reasons.
He was enrolled in a credit counseling program for about six months in the late 1990s in
an effort to improve his finances and pay his bills. He stopped participating when he
could not make the agreed payments. (Tr. at 48-60; GE 1 at 3; GE 5 at 3, 6.)
Applicant answered “NO” in response to questions 19 and 20 on his SF 85P, that
asked whether any judgments had been entered against him in the last 7 years or was
then over 180 days delinquent on any debt. These answers were false, in that he was
more than 180 days delinquent on those debts listed in SOR ¶¶ 1.a, 1.b, 1.c, 1.e, 1.f,
and 1.g, as described above. Of these debts, Applicant admitted knowing about and
owing the ¶¶ 1.b and 1.g debts. He further described actively, but unsuccessfully,
protesting the ¶¶ 1.a and 1.f debts with the companies involved, demonstrating that he
also knew them to be outstanding and unresolved obligations. He consistently said he
did not know anything about the ¶ 1.c debt, and did not believe he owed the ¶ 1.e debt
for his wife’s pre-marriage rent, so his omission of those two debts was not a deliberate
falsification. Applicant’s testimony to the effect that he did not understand what a
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judgment was, or that one had been entered against him, was unpersuasive because
he described having a judgment entered against him for unpaid traffic tickets during his
March 2007 OPM interview. His explanation for denying the 180-day delinquencies
was, “that probably was just me not actually paying attention to the question closely.”
(GE 5 at 4; Tr. at 47-48.)
Policies
Positions designated as ADP I and ADP II are classified as “sensitive positions.”
(See Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3.)  “The standard that must be met for
. . . assignment to sensitive duties is that, based on all available information, the
person’s loyalty, reliability, and trustworthiness are such that . . . assigning the person to
sensitive duties is clearly consistent with the interests of national security.” (See
Regulation ¶ C6.1.1.1.) The Deputy Under Secretary of Defense (Counterintelligence
and Security) Memorandum, dated November 19, 2004, indicates trustworthiness
adjudications will apply to cases forwarded to DOHA by the Defense Security Service
and Office of Personnel Management. Department of Defense contractor personnel are
afforded the right to the procedures contained in the Directive before any final
unfavorable access determination may be made. (See Regulation ¶ C8.2.1.)  
When evaluating an applicant’s suitability for a public trust position, the
administrative judge must consider the disqualifying and mitigating conditions in the AG.
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 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
[sensitive] 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 the applicant or proven by Department Counsel.” The
applicant has the ultimate burden of persuasion as to obtaining a favorable
trustworthiness decision.
A person who applies for access to sensitive information seeks to enter 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
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Government reposes a high degree of trust and confidence in individuals to whom it
grants access to sensitive information. Decisions include, by necessity, consideration of
the possible risk the applicant may deliberately or inadvertently fail to protect or
safeguard sensitive information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
sensitive information. 
Section 7 of Executive Order 10865 provides that “Any determination under this
order adverse to an applicant 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.”
See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified
or sensitive information).  
Analysis
Guideline F, Financial Considerations
The trustworthiness concern relating to the guideline 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 [sensitive] information. An individual who is financially
overextended is at risk of having to engage in illegal acts to generate
funds. 
The guideline notes several conditions that could raise trustworthiness concerns.
Under AG ¶ 19(a), an “inability or unwillingness to satisfy debts” is potentially
disqualifying. Similarly under AG ¶ 19(c), “a history of not meeting financial obligations”
may raise trustworthiness concerns. Applicant accumulated more than $16,900 in
delinquent debt during a period of consistent financial irresponsibility stretching back at
least ten years. He claimed some of these debts were not his and did not know about
others, but showed nothing to document the validity of such disputes. The evidence is
sufficient to raise these potentially disqualifying conditions, requiring a closer
examination and shifting the burden to Applicant to establish mitigation of the resulting
trustworthiness concerns.
The guideline also includes examples of conditions that could mitigate
trustworthiness concerns arising from financial difficulties. Under AG ¶ 20(a), the
disqualifying condition may be mitigated where “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.” Applicant’s history of inability to pay his debts spans more than a decade,
and continues to date. He provided no evidence this would not continue or recur, so this
mitigating condition is not supported by the record.
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Under AG ¶ 20(b), it may be mitigating where “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.” Applicant’s financial
problems were partially caused by two periods of unemployment that resulted from his
choices, not due to business failures or unexpected layoffs. His voluntary separation
from his wife did increase family living expenses, but that was also a choice he made.
He denied that his wife was responsible for his delinquencies. He has not demonstrated
that this potentially mitigating condition is a factor for significant consideration in this
case. 
Evidence that “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”
is potentially mitigating under AG ¶ 20(c). Similarly, AG ¶ 20(d) applies where the
evidence shows “the individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts.” Applicant’s counseling during the late 1990s ended when he
could not meet program requirements. He has continued to incur delinquent debt, so
the problem is neither resolved nor under control. He offered no proof of resolution or
repayment of any SOR-listed debt. He has taken preliminary steps to file a bankruptcy
petition, but it is premature to consider this potential resolution as substantial mitigation
based on evidence presented to date.
Applicant also failed to establish mitigation under AG ¶ 20(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.” While he asserted a potentially valid
basis to dispute the validity of several of the debts, he provided no documented proof
corroborating those assertions, and testified that his minimal efforts in that regard on
some of the debts had been unsuccessful in convincing the creditors that the debts
were not his.
Guideline E, Personal Conduct
AG ¶ 15 expresses the trustworthiness concern pertaining to personal conduct:
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.
AG ¶ 16 describes conditions that could raise a trustworthiness concern and may
be disqualifying. The disqualifying condition alleged in the SOR and raised by the
evidence in this case is:
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(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or
similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities.
Applicant omitted responsive information about his 2002 judgment debt, and his
multiple debts that were more than 180 days delinquent in response to questions 19
and 20 on his October 2005 Questionnaire for Public Trust Positions. In fact, he
answered “NO” in response to each question, denying that those debts existed. He
certified the completeness and accuracy of his answers, acknowledging the obligation
to be truthful. His rationale during his hearing for failing to report the judgment differed
markedly from his comments about it to the OPM investigator which he later ratified as
being true in his interrogatory response. He then explained his false answer to question
20 happened because he wasn’t paying attention to the question. Neither attempted
justification for the omissions was persuasive. The weight of evidence in this record
leads to the conclusion that his false denials and omissions of relevant information
concerning his judgment and delinquent debts in response to questions 19 and 20 were
deliberate. 
Applicant did not disclose any information about these matters until he was
asked about it by the OPM investigator during his March 7, 2007 personal subject
interview. This does not establish the personal conduct mitigating condition set forth in
AG ¶ 17(a): “the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts.” His conflicting
statements about why he omitted this information significantly undermine the credibility
of his assertion that he did not intend to mislead the Government about the existence of
these debts and his underlying actions that gave rise to them. He neither asserted nor
established any other personal conduct mitigating condition with respect to these
denials and omissions.
Guideline J, Criminal Conduct
AG ¶ 30 expresses the trustworthiness concern pertaining to criminal conduct:
“Criminal activity creates doubt about a person's judgment, reliability, and
trustworthiness. By its very nature, it calls into question a person's ability or willingness
to comply with laws, rules and regulations.” AG ¶ 31 describes conditions that could
raise a trustworthiness concern and may be disqualifying, including: “(a) a single
serious crime or multiple lesser offenses;” and “(c) allegation or admission of criminal
conduct, regardless of whether the person was formally charged, formally prosecuted or
convicted.” The criminal statute codified at 18 U.S.C. § 1001 states: 
 
(a) Except as otherwise provided in this section, whoever, in any matter
within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully–
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(1) falsifies, conceals, or covers up by any trick, scheme, or device a
material fact;
(2) makes any materially false, fictitious, or fraudulent statement or
representation; or
(3) makes or uses any false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years...
Applicant’s deliberate omission and concealment of his 2002 judgment debt and
substantial delinquent indebtedness, as discussed above, constituted a violation of this
statute. This, as a felony, is a serious offense within the meaning of AG ¶ 31(a), and
does call into question Applicant’s ability or willingness to comply with laws, rules and
regulations. Applicant neither asserted nor introduced any evidence that would support
application of any criminal conduct mitigating condition as set forth in AG ¶ 32.
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) 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 potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant’s history of financial
irresponsibility is lengthy and ongoing, resulting in a large number and amount of
delinquent debts. His only realistic potential for resolution of these debts is through
bankruptcy proceedings which he has made only preliminary efforts toward filing. He is
a mature individual who is accountable for the voluntary choices that led to these
circumstances. He demonstrated no rehabilitation or other permanent behavioral
changes that could support a conclusion that continuation or recurrence is unlikely.
These debts continue to create potential for coercion, pressure and duress, as
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demonstrated in his attempts to hide them by falsifying his Trustworthiness
Questionnaire. That falsification itself is of serious concern, and constitutes criminal
behavior. Overall, the record evidence leaves me with substantial questions and doubts
as to Applicant’s eligibility and suitability for a public trust position. For all these
reasons, I conclude Applicant failed to mitigate the trustworthiness concerns arising
from his financial considerations, personal conduct and criminal conduct. 
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
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Paragraph 3, Guideline J: AGAINST APPLICANT
Subparagraph 3.a: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the interests of national security to grant Applicant eligibility for a
public trust position. Eligibility for access to sensitive information is denied.
                                              
DAVID M. WHITE
Administrative Judge