DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------------------------- )       ISCR Case No. 07-17178
SSN: ------------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Department Counsel
For Applicant: Pro Se
February 2, 2009
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted her Electronic Questionnaires for Investigations Processing
(e-QIP) on July 24, 2007, and July 25, 2007.  (Government Exhibits 5 and 6).  On
August 19, 2008, the Defense Office of Hearings and Appeals (DOHA), pursuant to
Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated
January 2, 1992, (as amended) issued a Statement of Reasons (SOR) to the Applicant,
which detailed 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 clearance should be denied or revoked.
Applicant answered the SOR in writing on September 29, 2008, and requested a
hearing before an Administrative Judge.  The case was assigned to the undersigned
Administrative Judge on October 29, 2008.  A notice of hearing was issued on October
31, 2008, scheduling the hearing for December 9, 2008.  The Government offered
eleven exhibits, referred to as Government Exhibits 1 through 11, which were received
without objection. Applicant called two witnesses and offered six exhibits, referred to as
Applicant’s Exhibits A through F.  She also testified on her own behalf.  The transcript of
the hearing (Tr.) was received on December 17, 2008.  Based upon a review of the
case file, pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
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 FINDINGS OF FACT
The Applicant is 53 years old and has a high school diploma and one year of
college.  She is employed by a defense contractor as an Industrial Security Specialist 3
and is seeking to obtain a security clearance in connection with her 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).  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 clearance because she is financially overextended and at risk
of  having to engage in illegal acts to generate funds.      
The Applicant has worked for her current employer for the past thirty-five years.
She has filed bankruptcy on two occasions.  The first time, on January 3, 1990, she filed
for Chapter 7 bankruptcy protection and discharged liabilities in excess of $32,000.00.
(Government Exhibit 1).  To help subsidize her mother’s social security check, the
Applicant provided her with financial assistance.  At the time, her mother lived with her
and her mother wanted to move out of the state.  So, the Applicant helped finance the
cost of her mother’s move.  The Applicant was left with all of the household expenses
and the credit card bills.  Nine months later, her mother wanted to move back.  The
Applicant again financially assisted her with the move.  As a result, the Applicant
became severely delinquent on her bills and filed bankruptcy.    
On November 27, 2002, the Applicant filed for Chapter 7 Bankruptcy relief again.
This time, liabilities of over $72,000.00 were discharged.  (Government Exhibit 4).  The
Applicant explained that her sister died and left her daughter with the mortgage.  The
Applicant’s mother wanted the Applicant to move into her sister’s house to assist with
the mortgage and keep the house from going into foreclosure.  In July 2002, the
Applicant moved into her sister’s house with her niece.  Applicant soon learned that the
mortgage payment was more than she had initially thought, because her sister had a
second trust deed that the Applicant was not aware of.  Realizing this, the Applicant
could not afford her sister’s house payment and the money it took to pay for her
mother’s rent in the retirement home.  Applicant’s niece was laid off of her job and so
she was unable to pay her part of the mortgage.  The Applicant volunteered to work
overtime but still could not afford her expenses.         
Since 2002, the Applicant has demonstrated financial responsibility.  She is
current with all of her monthly expenses and she has no delinquent debts.  (Applicant’s
Exhibit F and Government Exhibit 10).
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Paragraph 2 (Guideline E - Personal Conduct).  The Government alleges that the
Applicant is ineligible for clearance because she intentionally falsified material aspects
of her personal background during the clearance screening process.
While working for her current employer, the Applicant received counseling in July
1996, for her second offense of failure to place regular ledger accounting on her
timecard.  She explained that she left work for the day and forgot to fill out her time
card.  She admits that this occurred but claims that this was an oversight on her part.  A
letter was also placed in her personnel file by her manger.  (Government Exhibit 8).
Based upon an anonymous report made to the company hot line, the Applicant
was investigated for improperly recording her time card.  (Government Exhibit 8).
Applicant explained that she was accused of leaving work early and not always working
eight hours when her time card reflected that she had.  The Applicant denies the
misconduct.  She explained that she did not always swipe out her badge every time she
left her office.  Sometimes, if others went to the door and swiped their badge, if the
Applicant knew them, she would “tailgate” or enter behind them without swiping her
badge.  This procedure was permitted by the company.  She entered and exited in this
fashion and her badge did not always reflect the hours she actually worked.  Applicant’s
manager, who thinks highly of her, testified that when he learned about the situation, he
was puzzled because the records showed that sometimes there was no record of the
Applicant even logging in for the day, or that she had logged off early.  (Tr. p. 81).  He
explained that the Applicant told him that she had been taking care of sick and elderly
mother.  She would take lunch early and then return to work late and make up the
hours.  Her mother passed away earlier this year. 
Applicant contends that she has always worked a full eight hour day, although
she is unable to prove it.  Applicant was given a memorandum of corrective action and a
five days suspension by her manager.    
Applicant’s manager testified that since the above described incident, there was
another case with similar circumstances that was investigated by the company and the
charges were dropped against the employee.  In light of this case, the Applicant’s
manager plans on meeting with the manager of human resources and asking for a
review of the Applicant’s case.  He considers the Applicant to be honest, responsible
and trustworthy, and highly recommends her for a position of trust.
Applicant’s Facility Security Officer, who is also the Applicant’s direct supervisor,
testified that the Applicant serves as her right arm.  The Applicant takes on the
leadership role in the organization in terms of directing policy and procedure, providing
guidance and instruction to employees and coworkers concerning security matters.  She
is responsible for many facets of security education at her facility. She provides security
briefings as well as managing classification issues.  Her work is considered to be of
excellent quality, as she is very knowledgeable, timely, independent, multi-faceted and
considered one of the best classification management specialist at the company.
Applicant’s supervisor further testified that the Applicant was encouraged to take flex
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time during the period she was taking care of her sick mother.  (Tr. p. 103).  She states
that the Applicant always left messages if she needed to leave early to take her mother
to the doctor, or if she was going to be late because she needed to pick up her mother’s
prescriptions.  (Tr. p. 104).  Concerning the anonymous report accusing the Applicant of
time card misconduct, the Applicant’s supervisor testified that she was “caught off
guard”.  She was never contacted concerning the investigation and was thus, unable to
give her input.  (Tr.  p. 105).  
In October 2004, the Applicant was called in for an interview with an investigator
from her company who had ran a random credit card report that revealed that the
Applicant had been using her company credit card for personal matters which was
prohibited by the company.  From January 2002 through March 2004, her employer
accused her of taking cash advances on her company credit card during an eighteen
month period.  The Applicant admitted the violation, but argued that although she
obtained the cash advances with her company credit card, she always paid the bill in full
when the statement came in the very next month.  She did not have any credit cards of
her own because of her bad credit.  Applicant was terminated in January 2005 for
violating company policy.  The Applicant obtained counsel and she was ultimately
reinstated in November 2005.  Her punishment was five days off without pay and the
other time was considered an unpaid leave of absence.      
In October 1987, the Applicant was arrested and charged with Petty Theft.  She
explained that during her lunch hour she went to a department store, purchased some
panty hose and then put a two piece outfit into her bag without paying for it.  As she was
leaving the store, she was caught by security.  She was found guilty, fined $570.00 and
placed on three years probation.  (Government Exhibit 7).  
Performance Reviews of the Applicant for 2004, 2006 and 2007, reflect that she
“met expectations” or “exceeded expectations” in every category.  (Applicant’s Exhibit
A).  The Applicant received an award from her exceptional performance on the job.
(Applicant’s Exhibit B).  Letters of recommendation from the two individuals in company
Senior Management that testified reflect that they consider the Applicant to be honest,
trustworthy and responsible.  (Applicant’s Exhibits C and D).   
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
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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. 
Conditions that could raise a security concern:
19.(a) inability or unwillingness to satisfy debts; 
19.(c) a history of not meeting financial obligation; 
19.(e) consistent spending beyond ones means, which may be indicated by
excessive indebtedness, significant negative cash flow, high debt-to-income ratio,
and/or other financial analysis. 
Conditions that could mitigate security concerns:
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;
20.(c) 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;
20.(d) the individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts.
Guideline E (Personal Conduct)
15.  The Concern.  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.
Condition that could raise a security concern:
16.(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
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: (3) a pattern of dishonesty or rule violations; and (4) evidence of
significant misuse of Government or other employer’s time or resources.
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Condition that could mitigate security concerns:
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 facts that caused untrustworthiness, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur.
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 
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
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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, the security of classified industrial secrets 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
clearance 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 her a security clearance.
In this case the Government has met its initial burden of proving that the
Applicant has been financially irresponsible (Guideline F) and that she has
demonstrated questionable judgment (Guideline E).  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 her security clearance eligibility.
Considering all of the evidence, the Applicant has introduced persuasive
evidence in rebuttal, explanation or mitigation that is sufficient to overcome the
Government's case.  The Applicant filed for Chapter 7 Bankruptcy in 1990 and again in
2002.  Now, she is no longer taking care of two households that included her mother’s
and hers.  Her mother has passed away and she is only financially responsible for
herself.  She is current with all of her monthly expenses and has been paying her debts
in a timely fashion.  She has learned to live within her means.  She is planning for her
retirement and trying to save money to do so.  She understands the importance of
paying her bills on time.  Under the circumstances, she has made a good faith effort to
resolve her indebtedness, and there is evidence of financial rehabilitation.  The
Applicant has demonstrated that she can properly handle her financial affairs.
Under Guideline F (Financial Considerations), Disqualifying Conditions 19.(a)
inability or unwillingness to satisfy debts; 19.(c) a history of not meeting financial
obligation; and 19.(e) consistent spending beyond one’s means, which may be indicated
by excessive indebtedness, significant negative cash flow, high debt-to-income ratio,
and/or other financial analysis apply.  However, Mitigating Conditions 20.(b) the
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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; 20.(c) 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 and 20.(d) the individual initiated a good-faith effort to repay overdue
creditors or otherwise resolve debts also apply.  Accordingly, I find for the Applicant
under Guideline F (Financial Considerations).    
The evidence concerning the accusations against the Applicant for improper
company time card reporting is weak at best.  Her supervisor and manager gave her
approval to work flex hours and she did so.  Why the investigators did not contact her
leadership regarding the matter is suspect.  Applicant’s explanation is understandable
and reasonable under the circumstances.  With respect to the improper use of the
company credit card, the failure to place regular ledger accounting on her timecard, and
her arrest for petty theft that occurred twenty-one years ago, the Applicant admits that
she was wrong and that she has learned from her embarrassing and shameful
mistakes.  Based upon all of the evidence, including the favorable recommendations
and the sincerity and honesty of her testimony, I find that she is sufficiently trustworthy
to have access to classified information. 
Under Personal Conduct, Guideline E, Disqualifying Condition 16.(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: (3)
a pattern of dishonesty or rule violations; and (4) evidence of significant misuse of
Government or other employer’s time or resources applies.  However, Mitigating
Condition 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 facts that caused untrustworthiness, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur also applies.  Accordingly,
Guideline E is found for the Applicant.   
 I have also considered the “whole person concept” in evaluating the Applicant’s
eligibility for access to classified information.  Under the 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 good judgement, trustworthiness, reliability, candor, a
willingness to comply with rules and regulations, and/or other characteristics indicating
that the person may properly safeguard classified information.
  
I have considered all of the evidence presented and it sufficiently mitigates the
adverse information brought against her.  On balance, it is concluded that the Applicant
has overcome the Government's case opposing her request for a security clearance.
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Accordingly, the evidence supports a finding for the Applicant as to the factual and
conclusionary allegations expressed in Paragraphs 1 and 2 of the SOR.    
     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: For the Applicant.
        Subpara.  1.a.: For the Applicant.
    Subpara.  1.b.: For the Applicant.
    Subpara.  1.c.: For the Applicant.
   
Paragraph 2: For the Applicant.
        Subpara.  2.a.: For the Applicant.
    Subpara.  2.b.: For the Applicant.
    Subpara.  2.c.: For the Applicant.
    Subpara.  2.c.: For the Applicant.
   DECISION
In light of all the circumstances presented by the record in this case, it is clearly
consistent with the national interest to grant or continue a security clearance for the
Applicant.
  Darlene Lokey Anderson
Administrative Judge