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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------- )       ADP Case No. 08-03447
SSN: ----------- )
)
Applicant for Public Trust Position )
Appearances
For Government: Richard A Stevens, Esquire, Department Counsel
For Applicant: Pro se
                                                                            
______________
Decision
______________
MARSHALL, Jr., Arthur E., Administrative Judge:
Applicant submitted Questionnaires for Public Trust Position (SF 85P), dated
August 21 2007 and amended on September 11, 2007. On October 17, 2008, the
Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons
(SOR) detailing the trustworthiness concerns regarding Applicant arising under
Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The action
was taken under Executive Order 10865, Safeguarding Classified Information within
Industry (February 20, 1990), 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. 
In an undated response, Applicant answered the SOR. She admitted 5 of 10
allegations under Guideline F and declined to address the single allegation raised under
Guideline E. She also requested a hearing before an Administrative Judge. DOHA
received the request and assigned the case to me on March 4, 2009. Applicant and
      Tr. 8.1
      Tr. 20.2
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Department Counsel agreed to an April 1, 2009, hearing date. On March 16, 2009, a
Notice of Hearing was issued scheduling the hearing for that date. The hearing was
convened as scheduled. Department Counsel submitted four documents, admitted as
Exhibits (Exs.) A-D without objection. Applicant introduced no exhibits, but gave
testimony. Applicant was given through April 16, 2009, to submit any documents for
consideration. An extension was later provided through April 22, 2009. The transcript
(Tr.) was received on April 15, 2009. Applicant’s attempt to send materials by facsimile
transmission was unsuccessful on April 20, 2009 due to an erroneous contact number,
but Department Counsel ultimately received it on April 27, 2009. Noting no objections,
Department Counsel forwarded two submissions that same day. I received the
submissions on April 28, 2009, and they were accepted into the record as Exs. 1-2. The
record was then closed. Based upon a review of the case file, pleadings, exhibits, and
testimony, eligibility for access to sensitive information is denied.
Procedural and Evidentiary Rulings
Notice and Amendment of SOR
At the hearing, it was unclear as to when Applicant received the Notice of
Hearing. I advised Applicant of her right under ¶ E3.1.8 of the Directive to 15 days
notice before the hearing. Applicant effectively waived her right to 15 days notice.1
Additionally, Department Counsel moved to amend ¶ 2.a of the SOR to conform to the
evidence. Without objection, that allegation was amended to read, in part: “You falsified
material facts on a questionnaire for public trust positions executed by you on or about
August 21, 2007, and later amended by you on September 11, 2007. . . .” (Amended
language in italics). 
Findings of Fact
Applicant is a 39-year-old operational clerk working for a defense contractor. She
has worked for her current employer since the summer of 2007. Applicant completed
high school and completed two years of post-secondary education. Currently separated
from her husband, she has three teenage children.
From December 1999 through February 2002, Applicant worked as a machine
operator. In February 2002, she was laid off, commencing a year of unemployment.
After several months of unemployment, she pursued college courses to prepare her for
alternative employment. During her unemployment period, the couple subsisted solely
on her husband’s earnings.  It was during this time Applicant acquired much of the2
delinquent debt at issue. 
At issue are the following debts, as noted in the October 17, 2008, SOR as
allegations ¶¶ 1.a through 1.j.
      Tr. 22-23.3
      Tr. 23-25.4
      Tr. 26; Ex. D (Credit report, dated Aug. 8, 2009).5
      Tr. 28; Ex. C (Credit report, dated Sep. 18, 2007).6
      Tr. 28-30.7
      Tr. 34-35.8
      Tr. 35-36.9
      Tr. 37.10
      Ex. 2 (Hospital statements).11
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1.a – Medical Debt ($146) – UNPAID – Applicant admits this account remains
delinquent.  This amount represents a co-pay incurred by Applicant for dental work3
performed between 1999 and 2002.
1.b – Auto Repossession ($10,760) – UNPAID – Applicant denies this allegation. She
purchased a 1998 vehicle for about $16,000 which was voluntarily repossessed
sometime around late 2002. She testified that she paid the balance down to about
$10,000 at the time of repossession and that the auto was to be auctioned, but
Applicant offered no evidence to substantiate these assertions.  4
1.c – Financial Loan ($3,346) – UNPAID – Applicant denies this allegation, which was
charged off as bad debt in 2002. The loan originated in 2000 as a $600 loan for vehicle
repairs. It was renewed with a high credit noted as $684 before she was laid off in late
2002.  Interest and fees have increased the balance owed considerably.5
1.d – Bank Debt ($2533.45) – IN DISPUTE – Applicant denies this allegation, which
was referred for collection around March 2003. Applicant disputed this account with
TransUnion and/or Experian.6
1.e – Utility Bill ($676) – UNPAID – Applicant denies this allegation, stating the
account belongs to her estranged husband.  No evidence to that effect was introduced.7
1.f – Communications Bill ($175) – UNPAID – Applicant denies this allegation, noting
she has no recollection of using this service provider.8
1.g – Communications Bill ($488) – UNPAID – Applicant admits this allegation and
acknowledges the balance owed.9
1.h – Medical Debt ($600) – PAID – Applicant admits this allegation, regarding a debt
incurred for medical treatment after a car accident between 2003 and 2005.  Applicant10
provided evidence that her balance was paid and currently has a zero balance.11
      Tr. 37-38.12
      Tr. 38.13
      Tr. 39.14
      Tr. 42.15
      Tr. 41.16
      Tr. 42-43.17
      Tr. 43-44.18
      Tr. 45.19
      Tr. 46.20
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1.i – Credit Card ($1,369) – UNPAID – Applicant admits this allegation, noting it was a
card kept on hand between about 1998 and 1992 for the purchase of larger items.12
1.j – Bank Financed Purchase ($292) – UNPAID – Applicant admits this allegation,
noting that it was incurred in the purchase of a correspondence course designed to
learn new skills.  She was unaware the course would continue to bill her account after13
receipt of its initial mailings.14
On August 21, 2007, Applicant completed and certified her SF-85P. On
September 11, 2007, her employer’s human resources staff returned it to her to amend
an answer.  Specifically, she scratched out her “Yes” designation in favor of an answer15
of “No” regarding Question 22(b) (“Are you now over 180 days delinquent on any loan
or obligation? Include loans or obligations funded or guaranteed by the Federal
Government”). She changed her answer because “when [she] read it, [she] didn’t
understand it at the time. . . . – – it seemed like a tricky question to [her].”  She was16
confused by the reference to “obligations funded or guaranteed by the Federal
Government” and did not equate her past due bills with the “delinquent” loans and
obligations referenced.”  This belief was apparently reenforced by the fact she received17
few calls or letters regarding her past due accounts.   18
Currently separated from her husband, Applicant’s 18-year-old child lives with
her. The two younger children reside in another town with Applicant’s mother. They
remained with their grandmother so they did not have to change school when Applicant
moved. When she can, she sends her mother money for their care.  Applicant’s19
husband provides no financial assistance, but buys things for the children at times.  20
Applicant drives a truck, which she purchased last year and has approximately
157,000 miles on its odometer. It is currently not insured. She lives in a house she
bought last year for about $69,000, on which she pays a mortgage of about $500 a
month. She spends about $250 on utilities, $200 on groceries, and $80 on gasoline per
month. She does not have a cell phone. She now earns $8.75 an hour, making about
      Ex. 1 (Student loan statement).21
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$17,000 per year. She has a net monthly income of about $1,100. She is not eligible for
overtime pay. Although not at issue in the SOR, the student loans incurred while
Applicant returned to school in the 2002-2003 period have been repaid in full.21
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 applicant or proven by Department Counsel. . . .” The
Applicant has the ultimate burden of persuasion as to obtaining a favorable
trustworthiness decision. 
A person who seeks a position of trust enters into a fiduciary relationship with the
Government predicated upon trust and confidence. This relationship transcends normal
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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 (EO) 10865 provides that decisions shall be “in
terms of the national interest and shall in no sense be a determination as to the loyalty
of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple
prerequisites for access to classified or sensitive information).  
Analysis
Guideline F, Financial Considerations
The 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 Ainability or unwillingness to satisfy debts@ is potentially
disqualifying. Similarly under AG & 19(c), Aa history of not meeting financial obligations@
may raise security concerns. Applicant accumulated delinquent debt, mostly between
2002 and 2003 while unemployed. Thus far she has been unable to pay most of her
delinquent obligations. The evidence is sufficient to raise these potentially disqualifying
conditions.
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 Athe 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.@ Most of Applicant=s debts became delinquent around the time of her 2002-
2003 period of unemployment. While it is clear that it is an inability, not an
unwillingness, to pay her debts, the fact remains progress has only been made on 2 of
10 obligations. Consequently, this mitigating condition does not apply.
Under AG & 20(b), it may be mitigating where Athe conditions that resulted in the
financial problem were largely beyond the person=s control (e.g., loss of employment, a
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business downturn, unexpected medical emergency, or a death, divorce or separation),
and the individual acted responsibly under the circumstances.@ Inasmuch as the
majority of debts at issue became delinquent during Applicant’s period of
unemployment or shortly thereafter, this mitigating condition applies and is a factor for
consideration. 
Evidence that Athe 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), but Applicant introduced no evidence that
she has received such counseling or that any professionals have aided her in
addressing her delinquent debt. She has, however, formally disputed one account at
issue, paid her medical bill, and repaid her student loans. Therefore, AG & 20(d), Athe
individual initiated a good-faith effort to repay overdue creditors or otherwise resolve
debts,@ applies to a limited extent.
Guideline E, Personal Conduct
The trustworthiness concern relating to the guideline for Personal Conduct is set
out in AG & 15: Conduct involving questionable judgment, untrustworthiness,
unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations could indicate that the person may not properly safeguard classified
information. Here, Applicant initially indicated she had obligations delinquent over 180
days, then scratched out her affirmative answer in favor of a “No.” She credibly testified
that, upon reflection, she was confused by the terms used to define past due bills
(delinquent loans and financial obligations), especially as it is followed directly by the
instruction to “(i)nclude obligations funded or guaranteed by the Federal Government.”
While the question seems relatively straightforward, it could be honestly misconstrued,
particularly by someone financially unsavvy, an individual instructed to change her
answer as a corrective measure, or one suspicious of the “tricky” application. For
example, the mandate to “Include loans or obligations funded or guaranteed by the
Federal Government” could be read to specifically depict the type of loans and
obligations to be noted on the application to the exclusion of any other type of debt.
Similarly, a failure to equate past due bills with financial obligations could result in an
incorrect answer. 
Applicant’s own direct testimony and that elicited by Department Counsel
demonstrate her discomfort with regard to financial terminology. Given her credible
testimony throughout the proceeding, there is no indication of falsity. Having reviewed
the potentially disqualifying conditions under this guideline, I find that consideration of
this issue is best reserved for analysis under the “Whole Person” concept.
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,
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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 exten 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 is a mature woman who
has raised three children, pursued higher education, and struggled to maintain a
household without financial assistance from her estranged husband. She is also a
woman who endured a protracted period of unemployment after being laid off. During
that 2002-2003 period of unemployment, she acquired some new debt and older debt
became delinquent. 
In her favor, Applicant is a modest woman who lives simply and without
extravagance. Her income, too, is modest. She paid one medical debt and formally
disputed one obligation. She also satisfied her student loan obligation. Regardless, she
has made little progress on her remaining delinquent debts over the past six to seven
years. A debt for $175 she does not recognize has neither been disputed or addressed.
Another obligation for $292 is acknowledged, but remains unpaid. A loan in the $600-
range has grown to an unwieldy balance in excess of $3,500, while no inquiries have
been made with regard to a repossessed automobile. There is no evidence she has
tried to settle, consolidate, or repay any of the larger delinquent debts. Overall, the
record evidence leaves questions and doubts unresolved with regard to Applicant’s
financial condition. As noted above, 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.” Consequently, I conclude Applicant failed to meet her burden and
mitigate the trustworthiness concerns arising from her finances. Access is denied.
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: For Applicant
Subparagraph 1.e: Against Applicant
Subparagraph 1.f: Against Applicant
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Subparagraph 1.g: Against Applicant
Subparagraph 1.h: For Applicant
Subparagraph 1.i: Against Applicant
Subparagraph 1.j: Against Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a public trust
position. Eligibility for access to sensitive information is denied.
ARTHUR E. MARSHALL, JR.
Administrative Judge