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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------, ------- ------ )       ADP Case No. 08-03849
SSN: ------ ---- -------- )
)
Applicant for Public Trust Position )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Laura F. Gabel, Personal Representative
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Decision
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WHITE, David M., Administrative Judge:
Applicant failed to pay state and Federal income taxes during many of the ten
years since her Chapter 7 bankruptcy discharge. She married a Russian immigrant she
barely knew in order to help him obtain legal residency, but has had no contact with him
for more than a year. She mitigated foreign influence concerns, but not financial
considerations. Based upon a thorough review of the case file, pleadings, exhibits, and
testimony, eligibility for access to sensitive information is denied. 
Applicant submitted her Public Trust Position Application (SF 85P), on July 18,
2007. On November 19, 2008, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) to Applicant detailing security concerns under
Guidelines F and B. 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 (January 1987), as amended
(Regulation); and the revised adjudicative guidelines (AG) promulgated by the President
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on December 29, 2005, and effective within the Department of Defense (DoD) for SORs
issued after September 1, 2006. 
Applicant acknowledged receipt of the SOR on December 1, 2008. She
answered the SOR in writing on December 3, 2008, and requested a hearing before an
administrative judge. Department Counsel was ready to proceed on January 30, 2009,
and DOHA assigned the case to me on that date.
DOHA issued a notice of hearing on February 17, 2009, and I convened the
hearing as scheduled on March 10, 2009. Department Counsel offered Government
Exhibits (GE) 1 through 8, which were admitted without objection. Applicant testified on
her own behalf, and offered Applicant’s Exhibits (AE) A through E, which were also
admitted without objection. I granted Applicant’s request to leave the record open until
March 24, 2009, to permit submission of additional evidence. This evidence was
forwarded by a letter dated March 20, 2009, that Department Counsel received and
forwarded, without objection, on April 9, 2009. The evidence was marked AE F, and
admitted. DOHA received the transcript of the hearing (Tr.) on March19, 2009.
Findings of Fact
Applicant is a 69-year-old employee of a federal contractor, where she has
worked for almost two years as a customer service representative. In her answer, she
admitted to all of the allegations in the SOR, with some explanations. Those admissions
and explanations are incorporated in the following findings. 
Applicant was married to an Army warrant officer for more than 24 years. They
divorced in 1990 or 1991. She has five children, the youngest two of whom were about
ages 17 and 14 at that time and lived with her. The then-17-year-old daughter has
continued to live with Applicant ever since, and has two children of her own. This
daughter performs daycare in their home, but does not otherwise provide income to
support their household. (GE 1 at 5-6; Tr. at 56-57, 60-61, 96-97.) In November 1998,
Applicant could not afford to pay her debts and filed a petition for Chapter 7 bankruptcy.
This case resulted in discharge of her dischargeable debts in February 1999. (GE 2 at
3; Tr. at 62, 65.)
The state in which she formerly resided, until 2000, filed tax liens against
Applicant for $738 in August 2000, for $1,370 in September 2003, and for $2,425 in
October 2003. (GE 2 at 3-4.) In September 2007, Applicant told an investigator from the
Office of Personnel Management (OPM) that she did not have money withheld to pay
her state income taxes because she did not think she made enough money to owe any.
She did, however, show him a letter confirming that she had satisfied the $2,425 lien
that related to tax year 1999, and advised that she was paying her remaining state tax
debts at the rate of $100 per month. (GE 4 at 9.) She has continued those payments to
date, and her remaining state tax arrearage was $850.55 as of February 18, 2009. She
intends to keep paying under this arrangement, which will conclude later this year at the
current rate. (AE E; Tr. at 45, 47-52.)    
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The Federal government filed a tax lien against Applicant in the amount of
$17,771 in September 2004. (GE 2 at 3; GE 6.) This lien related to unpaid taxes for
years 1999, 2000, and 2001. (AE D.) Applicant provided a copy of her agreement with
the IRS  for installment payments of $602 per month to resolve her delinquent tax debt.
The agreement was negotiated in November 2008, and she began making payments in
January 2009. These documents reflect that her total delinquent Federal tax debt is
$38,955, and includes arrearages from tax years 2002, 2003, 2004, and 2007, in
addition to the three earlier years covered by the 2004 lien. It will take more than five
years to repay this debt if she makes all the payments as agreed. (AE C; AE D; AE F at
5; Tr. at 52-55, 67-68.)
Applicant told the OPM investigator in September 2007 that she thought the
$17,771 Federal tax lien resulted from her not withholding income taxes during the
years 2000 through part of 2004 because she thought she was exempt from taxes
because she did not make enough money. She said she had an offer in compromise
prepared and intended to file it with the IRS when her finances were sufficiently in order
to make the payment schedule. In her August 2008 response to DOHA interrogatories,
she said that the company that had prepared her offer in compromise was out of
business, and her accountant was preparing another one that she would file within the
next two weeks. (GE 4 at 9, 12.)
During the hearing, Applicant explained that she adjusted her withholding for her
former state and Federal income taxes to zero because she needed the extra money to
meet living expenses. From 1999 to 2004 she did not file Federal returns, so she did not
calculate what she would have owed. She started filing tax returns again in 2005, but
did not explain why she owed delinquent taxes for 2007. She did submit a copy of the
July 2008 bill from her accountant for preparing her 2007 Federal tax return, however,
and testified that she did file a return for that year. (GE 4 at 14; Tr. at 56-58, 66-70, 88-
90, 98.)
Applicant married a Russian immigrant who she met at her church in April 2007
after a brief courtship. He needed to marry an American in order to obtain a green card
and keep his job. Although they could barely communicate due to his poor English skills,
he was very nice to her and she married him because she “thought this would be good.”
He worked in a city about 20 miles from where she lives, and stayed there with friends
during the week after their marriage. He would stay at her house on weekends at first.
She sponsored his application for a green card, and he was able to keep his job. After
about a year of this, she asked him to contribute toward meeting household expenses
and he refused. In April 2008, Applicant decided she had “had enough” and told him to
move out. She has not spoken to him since then.  She intends to divorce him someday,
if and when she can afford the legal costs of doing so. She speaks no Russian, has
never met or spoken to any of his children who live in Germany and Russia, and has no
ongoing family relationship with him except being legally married. I took administrative
notice of the facts concerning Russia set forth in HE II, as requested by Department
Counsel and without objection by Applicant. (Tr. at 30-35, 58-59, 70-75, 82-88, 99-102.)
 
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Applicant provided a letter and testimony from her eldest daughter, and a letter
from that daughter’s husband, describing her loving and caring nature, honesty,
dependability and trustworthiness. She is hardworking and always looking for ways she
can help others even to her own detriment. I evaluated Applicant’s testimony to be
credible, although her memory for details was poor at times. Her present income is
sufficient to meet her regular living expenses and comply with her tax repayment
agreements, although with some difficulty. A recent Personal Financial Statement
reflects a monthly surplus of $736. (AE A; AE B; AE F at 3-4, 6-7; Tr. at 96-111.)
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.
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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
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
AG ¶ 18 expresses the security concern pertaining to financial considerations:
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 over-
extended 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.
AG ¶ 19 describes conditions that could raise a security concern and may be
disqualifying. Department Counsel argued persuasively that the evidence raised two of
these potentially disqualifying conditions: “(a) inability or unwillingness to satisfy debts;”
and “(c) a history of not meeting financial obligations.” He cited her tax debts covering
almost ten years of delinquent taxes and substantial remaining amount due. (Tr. at
113.) There was neither any allegation nor proof of compulsive, addictive, or problem
gambling. Nor was there any evidence of drug abuse or alcoholism. However, there is
substantial and undisputed evidence of many years of income tax evasion. Accordingly,
this evidence establishes the additional disqualifying condition: “(d) deceptive or illegal
financial practices such as embezzlement, employee theft, check fraud, income tax
evasion, expense account fraud, filing deceptive loan statements, and other intentional
financial breaches of trust.”
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AG ¶ 20 provides conditions that could mitigate security concerns arising from a
history of unpaid debt. Since Applicant did not dispute the legitimacy of any SOR-listed
debt, the four potentially pertinent conditions are:
(a) 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;
(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;
(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
(d) the individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts.
Applicant’s delinquent taxes arose over the past ten years and she still owes
more than $39,000 despite recent repayment efforts. At least eight different tax years
were involved, including as recently as 2007. These debts were the result of her
deliberate choice to stop regular withholding so she could increase her available income
to spend on other things. These actions by Applicant preclude any mitigation under AG
¶ 20(a), since her deliberate choice to evade her state and Federal income tax
obligations continues to reflect adversely on her judgment and trustworthiness. 
Applicant had her former debts discharged in bankruptcy in 1999, many years
after her divorce and when her youngest child was 22 years old. By definition, the debts
arose during periods when she was employed, since they involve income taxes that
should have been withheld from her wages. She did not act responsibly since she
deliberately chose not to pay these taxes. She accordingly established no mitigation
under AG ¶ 20(b). She offered no evidence of financial counseling. She has entered
repayment programs for her delinquent taxes, but only began repaying her Federal
taxes a few months ago, and after receipt of the SOR, despite having told the OPM
investigator she would do so months earlier. This conduct has begun to establish
mitigation under AG ¶¶ 20(c) and (d), but has not continued for a sufficient period to
indicate clearly that the problem is being resolved or to show a good-faith change in her
demonstrated disregard for her legal obligations toward the Government. Her lengthy
period of failure to pay her taxes showed the lack of judgment and unwillingness to
abide by rules and regulations at the heart of this guideline’s security concerns.
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Guideline B, Foreign Influence
AG ¶ 6 expresses the security concern regarding foreign influence:
Foreign contacts and interests may be a security concern if the individual
has divided loyalties or foreign financial interests, may be manipulated or
induced to help a foreign person, group, organization, or government in a
way that is not in U.S. interests, or is vulnerable to pressure or coercion by
any foreign interest. Adjudication under this Guideline can and should
consider the identity of the foreign country in which the foreign contact or
financial interest is located, including, but not limited to, such
considerations as whether the foreign country is known to target United
States citizens to obtain protected information and/or is associated with a
risk of terrorism.
AG ¶ 7 describes conditions that could raise a security concern and may be
disqualifying. The two conditions potentially raised by Applicant’s marriage to a Russian
citizen are:
(a) contact with a foreign family member, business or professional
associate, friend, or other person who is a citizen of or resident in a
foreign country if that contact creates a heightened risk of foreign
exploitation, inducement, manipulation, pressure, or coercion; and
(b) connections to a foreign person, group, government, or country that
create a potential conflict of interest between the individual's obligation to
protect sensitive information or technology and the individual's desire to
help a foreign person, group, or country by providing that information. 
Applicant married a man she barely knew primarily in order to help him become a
resident alien who could legally continue to work in the U.S. She continued a
relationship with him on weekends for about a year, after which she broke off all
connections to him. She inquired into divorce, but found it would cost more than she
could afford so she has not yet pursued it. Her marriage is sufficient to raise prima facie
security concerns under these two disqualifying conditions, however.
AG ¶ 8 provides conditions that could mitigate security concerns. Those
applicable to Applicant’s brief marital relationship include:
(a) the nature of the relationships with foreign persons, the country in
which these persons are located, or the positions or activities of those
persons in that country are such that it is unlikely the individual will be
placed in a position of having to choose between the interests of a foreign
individual, group, organization, or government and the interests of the
U.S.;
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(b) there is no conflict of interest, either because the individual's sense of
loyalty or obligation to the foreign person, group, government, or country is
so minimal, or the individual has such deep and longstanding relationships
and loyalties in the U.S., that the individual can be expected to resolve any
conflict of interest in favor of the U.S. interest; and
(c) contact or communication with foreign citizens is so casual and
infrequent that there is little likelihood that it could create a risk for foreign
influence or exploitation.
During the period from April 2007 to April 2008, when Applicant and her husband
had some semblance of a family relationship, none of these conditions applied.
However, since then she has had no contact with him whatsoever, and has no intention
of pursuing any future relationship. She has never had any communication with any of
his children, and has no other contact with any Russians. Although Russia is among the
most active foreign nations targeting intelligence collection efforts against the U.S.,
there is nothing about her brief relationship with this Russian immigrant that would
presently heighten the risk of her being targeted or exploited. She has no present loyalty
or obligation toward him or any foreign entity. Accordingly, foreign influence security
concerns are mitigated.
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 common sense 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 conduct of concern
involves her delinquent taxes dating back at least ten years, after a bankruptcy court
had discharged her debts and given her a fresh start to establish financial responsibility.
Her tax debt exceeds $39,000 and will not be resolved for at least five years under a
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plan she entered too recently to have yet established a pattern of compliance. She
deliberately chose not to pay taxes in order to have more funds available to spend on
other things she wanted to buy for herself and others. Her entry into the Federal
repayment agreement covering the vast bulk of this debt was apparently motivated by
her receipt of the SOR, rather than by any good-faith determination to fulfill her legal
obligations to the Government. She is not subject to coercion or exploitation through her
marriage relationship to a Russian, but remains subject to pressure and duress due to
her difficult financial position and the need to support her adult daughter and two
grandchildren. In the face of such pressures, she chose to violate her obligations to
state and Federal governments over a ten-year period, and a three-month period during
which she repaid less than 5% of the resulting debt is insufficient to show that
recurrence is unlikely.
On balance, Applicant presented insufficient evidence to fully mitigate reliability
and trustworthiness concerns arising from her failure to pay her taxes over the past ten
years. Overall, the record evidence leaves substantial doubts as to Applicant’s present
eligibility and suitability for a public trust position. For all these reasons, Applicant has
not mitigated the security concerns arising from her financial considerations. 
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
Paragraph 2, Guideline B: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For 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 ADP I/II/III sensitive information is denied.    
 
 
DAVID M. WHITE
Administrative Judge