DEPARTMENT OF DEFENSE 
 DEFENSE OFFICE OF HEARINGS AND APPEALS 
  
  
 
 
In the matter of: ) 
 ) 
  )  ADP Case No. 08-03350 
  ) 
 ) 
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: Julie R. Mendez, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HEINY, Claude R., Administrative Judge: 
 
Applicant has one unpaid judgment and 12 unpaid accounts, which have been 
charged off or have been placed for collection and total in excess of $16,000. Applicant 
rebutted the personal conduct security concerns related to her answers on her 
Questionnaire for Public Trust Positions. However, she has failed to rebut or mitigate 
the government’s security concerns about her finances. Applicant’s eligibility for access 
to sensitive information and eligibility for a public trust position is denied. 
 
Statement of the Case 
 
 On August 13, 2008, the Defense Office of Hearings and Appeals (DOHA) issued 
a Statement of Reasons (SOR) detailing trustworthiness concerns under financial 
considerations and personal conduct. 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); 
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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.  
 
 On August 25, 2008, Applicant answered the SOR and requested a hearing. On 
March 10, 2009, I was assigned the case. On March 26, 2009, DOHA issued a notice of 
hearing scheduling the hearing which was held on April 21, 2009. The government 
offered Exhibits (Ex.) 1 through 5, which were admitted into evidence. Applicant testified 
and submitted Exhibits A through F, which were admitted into evidence.  
 
The record was kept open to allow Applicant to submit additional matters. On 
April 28, 2009 and May 14, 2009, additional documents were received. There being no 
objection, the material was admitted into evidence as Ex. G and Ex. H. On April 29, 
2009, the transcript (Tr.) was received.  
 
Findings of Fact 
 
 In Applicant’s Answer to the SOR, she denied the debts listed in SOR ¶¶ 1.a, 1.h, 
1.i, 1.l, and 1.p. She also denied falsifying her Questionnaire for Public Trust Positions, 
SOR ¶¶ 2.a and 2.b. She admitted the remaining debts. Applicant’s admissions to the 
SOR allegations are incorporated herein. After a thorough review of the record, 
pleadings, exhibits, and testimony, I make the following findings of fact: 
 
 Applicant is a 35-year old beneficiary service representative who has worked for 
a health care provider since April 2007, and is seeking to obtain a public trust position. 
A coworker and friend states that Applicant is efficient, competent, and maintains 
excellent rapport with people. Applicant’s communication and customer service skills 
are excellent. (Ex. A) Applicant’s December 2008 appraisal review states she is an 
outstanding employee and an asset to the company. (Ex. E) 
 
 Applicant is married and has two children, ages 13 and 18, and additionally is 
raising her sister’s children, twins age four. (Tr. 34, 36) Day care for the four-year olds is 
$360 per month. (Tr. 46) Prior to 1999, the jobs held by Applicant were temporary 
positions. (Tr. 27) In May 1999, she started what she described as a “solid” job. In 
December 1999, she, then age 23, and her husband purchased a home. (Tr. 32) She 
describes the purchase as “the worst thing I could have ever did because I wasn’t really 
prepared for all what goes in it. I was young, dumb, basically, so we made a lot of 
mistakes.” (Tr. 27, 32) They purchased the home for $63,000 with $624 monthly 
payments. In 2006, they sold the home.  
 
In 2006, her husband joined the U.S. Army. From October 2006 until April 2007, 
Applicant was unemployed due to her relocation when her husband was transferred to 
his current duty assignment. (Tr. 35) In April 2007, she obtained her current job.  
 
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 In September 2005, an $11,554 judgment (SOR ¶ 1a) was entered against 
Applicant for payment of a water treatment program. In October 2006, when the home 
was sold, the water treatment judgment was paid and the judgment satisfied. (Ex. B, Ex. 
C) At the time of sale, the mortgage payments were delinquent. Applicant had been 
unaware of any judgments or liens on the house until settlement. (Tr. 37)  
 
 In April 2007, Applicant completed a Questionnaire for Public Trust Positions (SF 
85P). Question 22(a) asked if she or a company over which she exercised some control 
had filed for bankruptcy, been subject to a tax lien, or had a judgment rendered against 
her. Applicant answered “no” because she did not own or have control over a company. 
(Tr. 33)  
 
 Question 22(b) asked if she was 180 days delinquent on any loan or financial 
obligation at the time she completed her questionnaire. She thought question 22(b) was 
connected to question 22(a) and did not see them as separate questions. (Tr. 33) She 
again marked “no” because she did not own or control a company. She asserted she 
marked the question wrong. At the hearing, Applicant admitted she had debts more than 
180 days delinquent when her SF 85P was completed. (Answer to SOR) 
 
 In May 2008, Applicant answered written interrogatories concerning her 
judgments and delinquent accounts. (Ex. 2) She asserted the judgment listed in SOR ¶ 
1.a ($11,554) was paid when she sold her home. She stated she had made no 
payments on the following accounts: $2,849 judgment (SOR ¶ 1.b); $15,057 
repossession (SOR ¶ 1.c); $304 telephone bill (SOR ¶ 1.e); $368 bank account placed 
for collection (SOR ¶ 1.f); three medical bills placed for collection in the amounts of 
$265 (SOR ¶ 1.i), $141 (SOR ¶ 1.h), $50 (SOR ¶ 1.j); $78 water bill placed for collection 
(SOR ¶ 1.m); $212 returned check placed for collection (SOR ¶ 1.n); $60 returned 
check placed for collection (SOR ¶ 1.o); and $264 telephone service account placed for 
collection (SOR ¶ 1.p). (Ex. 2)  
 
 In her May 2008 answer to interrogatories, Applicant stated she had two 
interviews concerning her debts. She has worked in the same field for nine years and 
her prior employer was another government medical program. (Ex. 2)  
 
 Following the hearing, Applicant attempted to contact a number of her creditors 
to verify her obligations, but has been unable to verify the debts. (Ex. G). She contacted 
the following creditors: the collection agency collecting for a past due water bill (SOR ¶ 
1.m, $78); charged off bank account (SOR ¶ 1.d, $1,049); collection agency collecting 
for account placed for collection (SOR ¶ 1.g, $203); telephone bill (SOR ¶ 1.e, $304); 
bank account placed for collection (SOR ¶ 1.f, $368); and a vacuum cleaner judgment 
(SOR ¶ 1.b, $2,849). (Ex. G) Of these creditors, the only payment made was $85 to the 
collection agency collecting a past due water bill (SOR ¶ 1.m, $78). (Ex. H) 
 
 Applicant’s salary is $900 every two weeks. (Tr. 42) Her husband’s monthly take 
home pay is $1,200. (Tr. 42) Their combined monthly gross income is $3,000. Applicant 
would like to pay her creditors. (Tr. 32) She acknowledges some of the debts are not 
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large. She has attended some financial classes. (Tr. 33) She now checks her credit 
report annually. Lately, she has not had any checks returned for insufficient funds. (Tr. 
48) She is current on all of her debts except those listed in the SOR and is not being 
contacted by creditors about her debts. (Tr. 34) She is working on establishing a 
monthly budget. She has $85 automatically deducted from per pay check which goes to 
her 401(k) retirement fund. (Tr. 47) She has no savings.  
 
 A current summary of her debts follows: 
 
 Creditor Amount Current Status 
a Judgment for water 
treatment.  
$11,554 Paid. (Ex. B, Ex. C)  
b Judgment on a vaccum 
cleaner debt. (Tr. 29)  
$2,849 
 
Unpaid. Following the hearing, Applicant was 
unable to locate the creditor. (Ex. G) 
c Amount due following 
an involuntary 
repossession.  
$10,299
 
Unpaid. The van, purchased in November 2006 
was returned in August/September 2007. (Tr. 
30) Applicant’s last contact with this creditor 
had been in 2007. (Tr. 38, 41) 
d A charged-off bank 
debt.  
 
 
$1,049 Unpaid. Applicant’s last contact with this 
creditor had been in 2005. (Tr. 39) Following 
the hearing, Applicant obtained an address 
where to send payment. (Ex. G) There is no 
evidence payment was sent or received.  
e Telephone service 
account placed for 
collection. 
 
 
$304 Unpaid. Following the hearing, Applicant 
contacted the creditor in an attempt to 
determine who has the account. (Ex. G) 
Applicant’s last contact with this creditor was in 
2006. (Tr. 39) 
f A bank debt placed for 
collection.  
 
 
 
$368 Unpaid. At the hearing, Applicant was uncertain 
of this creditor or debt. Last contact with 
creditor was in February 2006. (Tr. 40) 
Following the hearing, Applicant attempted to 
contact the creditor, but has been unable to 
verify the debt. (Ex. G) 
g Collection agency 
collecting for a former 
catalog retailer, now an 
online retailer.  
$203 Unpaid. Applicant’s last contact with creditor 
was in 2000. (Tr. 40) Following the hearing, 
Applicant has obtained the creditor’s fax 
number, but has not been able to make contact. 
(Ex. G)  
 
 
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h Medical account 
placed for collection.  
 
$141 Unpaid. Applicant denies this debt. She states 
she knows nothing about this medical debt or 
the following two medical debts. (Tr. 31) 
i Medical account 
placed for collection.  
$265 Unpaid.  
j Medical account 
placed for collection. 
$50 Unpaid. Applicant states this might be a co-
payment on a medical bill. 
k Past due amount owed 
on debt to buy a car. 
(Tr. 31) 
$583 Unpaid. Last contact with creditor was in 2007. 
(Tr. 41) Applicant asserts creditor does not 
answer calls.  
l Past due amount owed 
creditor in SOR ¶ 1.a. 
$974 
 
Paid when home was sold.  
m Collection agency 
collecting for a water 
bill. 
 
 
$78 
 
Paid. Applicant states she paid $85 on this 
debt by credit card and she would receive 
proof of payment within 15 days of paying this 
bill. (Ex. G, Ex. H) No evidence of payment has 
been provided.  
n Returned check.  $212 Unpaid.  
 
o 
Returned check. 
 
$60 
 
Unpaid. Applicant uncertain of this debt. (Tr. 
32)  
 
p 
Collection agency 
collecting for a 
telephone provider.  
$264 
 
Unpaid. Applicant disputes the amount 
claimed, but acknowledges she owes some 
amount. (Tr. 32) Applicant’s last contact with 
creditor was in 2005. (Tr. 42) 
 Total SOR debt listed. $29,253  
 
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.)  
 
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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 commonsense 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 access to sensitive information enters into a fiduciary 
relationship with the Government predicated upon trust and confidence. This 
relationship transcends normal duty hours and endures throughout off-duty hours. The 
Government reposes a high degree of trust and confidence in individuals to whom it 
grants access to 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 
 
 Revised Adjudicative Guideline (AG) ¶ 18 articulates the trustworthiness 
concerns relating to financial problems: 
 
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Failure or inability to live within one's means, satisfy debts, and meet 
financial obligations may indicate poor self-control, lack of judgment, or 
unwillingness to abide by rules and regulations, all of which can raise 
questions about an individual’s reliability, trustworthiness and ability to 
protect classified information. An individual who is financially 
overextended is at risk of having to engage in illegal acts to generate 
funds. 
 
Additionally, an individual who is financially irresponsible may also be 
irresponsible, unconcerned, negligent, or careless in properly handling and 
safeguarding sensitive information. Behaving responsibly or irresponsibly in one aspect 
of life provides an indication of how a person may behave in other aspects of life.  
 
A person’s relationship with her creditors is a private matter until evidence is 
uncovered demonstrating an inability or unwillingness to repay debts under agreed 
upon terms. Absent evidence of strong extenuating or mitigating circumstances, an 
applicant with a history of serious or recurring financial difficulties is in a position of risk 
that is inconsistent with holding a public trust position. An applicant is not required to be 
debt free, but is required to manage her finances so as to meet her financial obligations. 
 
 The record evidence supports a conclusion Applicant has a history of financial 
problems. Applicant has one unpaid judgment and 12 unpaid accounts which were 
charged-off or placed for collection, which total in excess of $16,000. Ten of the debts 
are under $400 each, which together total less than $2,000. Disqualifying Conditions 
AG ¶ 19(a), “inability or unwillingness to satisfy debts” and AG ¶19(c), “a history of not 
meeting financial obligations,” apply.  
 
 Five Financial Considerations Mitigating Conditions under AG ¶¶ 20(a) – (e) are 
potentially applicable: 
 
(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; 
 
(d) the individual initiated a good-faith effort to repay overdue creditors or 
otherwise resolve debts; 
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(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. 
 
In 2006, when Applicant sold her home, the judgment listed in SOR ¶ 1.a 
($11,554) and the past due amount owed on this account (SOR ¶ 1.l, $974) were paid. 
Following the hearing, Applicant paid the debt listed in SOR ¶ 1.m, ($78). The remaining 
judgment and 12 accounts, which have been charged off or placed for collection, remain 
unpaid. She had not contacted a number of these creditors for years. 
 
AG ¶ 20(a) does not apply. The debts are numerous and remain unpaid. The 
debts do not appear to have been incurred under unusual circumstances or 
circumstances that are unlikely to recur.  
 
AG & 20(b) partially applies. Applicant experienced periods of unemployment. 
She was unemployed for six months before obtaining her current job in April 2007. 
Applicant has been employed full-time for more than two years. Her husband has been 
employed full-time since 2006. She has been aware of the government’s concern over 
her finances since May 2008 when she received the written interrogatories. In the past 
year, she has been able to pay one $78 debt. She has not acted reasonably under the 
circumstances.  
 
AG & 20(c) does not apply. Applicant has received counseling and is current on 
her debts other than those listed in the SOR. However, she has more than $16,000 in 
unpaid obligations. There are no clear indications that the problem is being resolved or 
is under control.  
 
AG & 20(d) applies to the two debts paid with the sale of her home in 2006 and 
the small debt paid following the hearing. The payment of these three debts represents 
a good-faith effort to repay these overdue creditors or otherwise resolve these debts.  
 
Applicant disputes the amount of debt listed in SOR ¶ 1.p ($264), but 
acknowledges she owes the creditor some amount. Applicant stated she had last 
contacted this creditor in 2005. For AG & 20(e) to apply there must be a reasonable 
basis to dispute the debt and there must be documented proof to substantiate the basis 
of the dispute. There is no documentation showing Applicant has disputed the debt with 
the creditor. AG & 20(e) does not apply.  
 
Personal Conduct 
 
The Government has shown Applicant's answers to questions 22(a) and 22(b) on 
her SF 85P were incorrect, but this does not prove Applicant deliberately failed to 
disclose information about her finances. Applicant denied any intentional falsification. 
Deliberate omission, concealment, or falsification of a material fact in any written 
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document or oral statement to the Government, when applying for a public trust 
position, is a security concern. But every inaccurate statement is not a falsification. A 
falsification must be deliberate and material. It is deliberate if it is done knowingly and 
willfully.  
 
 At the hearing, Applicant impressed me as somewhat unsophisticated in financial 
matters. She testified she thought the questions related to her as exercising control over 
a company and so she answered “no” to the questions. Having observed Applicant’s 
demeanor and listened to her testimony, Applicant=s explanation of her negative 
answers on her SF 85P is plausible and credible. Her answers were not deliberate 
omissions, concealments, or falsifications. 
 
Whole Person Concept 
 
 Under the whole person concept, the administrative judge must evaluate an 
Applicant’s eligibility for a public trust position by considering the totality of the 
Applicant’s conduct and all the circumstances. The administrative judge should consider 
the nine adjudicative process factors listed at AG ¶ 2(a):  
 
(1) the nature, extent, and seriousness of the conduct; (2) the 
circumstances surrounding the conduct, to include knowledgeable 
participation; (3) the frequency and recency of the conduct; (4) the 
individual’s age and maturity at the time of the conduct; (5) the extent to 
which participation is voluntary; (6) the presence or absence of 
rehabilitation and other permanent behavioral changes; (7) the motivation 
for the conduct; (8) the potential for pressure, coercion, exploitation, or 
duress; and (9) the likelihood of continuation or recurrence. 
 
 Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a 
public trust position must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole person concept.  
 
Applicant has been able to keep up with her current debts, but has been unable 
to address past due debts totaling in excess of $16,000. Applicant and her husband 
appear to be living paycheck to paycheck, with limited reserve funds for emergencies or 
temporary periods of unemployment.  
 
This decision should not be construed as a determination that Applicant cannot 
or will not attain the state of true reform and rehabilitation necessary to justify the award 
of a public trust position. The awarding of eligibility for a public trust position is not a 
once in a lifetime occurrence, but is based on applying the factors, both disqualifying 
and mitigating, to the evidence presented. Under the Applicant=s current circumstances 
a position of public trust is not clearly consistent with national security, but should the 
Applicant be afforded an opportunity to reapply for a public trust position in the future, 
having paid the delinquent obligations, established compliance with a repayment plan, 
9 
10 
or otherwise addressed the obligations, she may well demonstrate persuasive evidence 
of her eligibility for a public trust position. 
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. Overall, the record evidence leaves 
me with questions or doubts as to Applicant’s eligibility and suitability for a public trust 
position. For all these reasons, I conclude 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, Financial Considerations: AGAINST APPLICANT 
 
  Subparagraph 1.a:   For Applicant 
  Subparagraphs 1.b – 1.k:  Against Applicant    
  Subparagraphs 1.l and 1.m:  For Applicant 
  Subparagraphs 1.n – 1.p:  Against Applicant 
 
 Paragraph 2, Personal Conduct:   FOR APPLICANT 
 
  Subparagraphs 2.a and 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 interest of national security to grant Applicant eligibility for a 
public trust position. Eligibility for access to sensitive information and eligibility for a 
public trust position is denied.  
 
 
_________________ 
CLAUDE R. HEINY II 
Administrative Judge