1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) XXXXXXXXXX, XXXXX ) ISCR Case No. 08-08081 SSN: XXX-XX-XXXX ) ) Applicant for Security Clearance ) Appearances For Government: Jennifer I. Goldstein, Esq., Department Counsel For Applicant: Pro Se __________ Decision __________ TUIDER, Robert J., Administrative Judge: Applicant failed to mitigate Guideline F (Financial Considerations) security concerns. Clearance is denied. Statement of the Case On March 19, 2008, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP).1 On March 30, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to him, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended, modified and revised. The SOR alleges security concerns under Guideline F (Financial Considerations). The SOR detailed reasons why 1 Item 4. 2 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 him, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. On April 18, 2009, Applicant responded to the SOR allegations, and elected to have his case decided on the written record in lieu of a hearing. A complete copy of the file of relevant material (FORM), dated May 26, 2009, was provided to him by letter dated May 26, 2009. Applicant received the FORM on June 3, 2009. He was afforded a period of 30 days to file objections and submit material in refutation, extenuation, or mitigation. He did not submit any materials, comments, or objections in response the FORM. The case was assigned to me on July 27, 2009. Findings of Fact Applicant admitted all the SOR factual allegations. His admissions are incorporated herein as findings of fact. After a thorough review of the evidence of record, I make the following additional findings of fact. Applicant is a 40-year-old engineering data manager.2 He attended college level courses at three separate institutions from January 2001 to May 2005. The FORM does not indicate whether he was awarded a degree or how many college credit hours he has earned. He has been married since July 1997, and has a 15-year-old stepson and an 11-year-old daughter. He did not serve in the military. He disclosed no police record; no use of illegal drugs; and no alcohol-related problems, counseling or treatment. He has worked for the same employer, a government contractor, since May 2006. Applicant seeks a security clearance in conjunction with his employment. Applicant’s background investigation addressed his financial problems and included the review of credit reports from April 2008 (Item 5), November 2008 (Item 6), and May 2009 (Item 7). Additionally, it considered Applicant’s answers to DOHA interrogatories (Items 8 and 9), which included an April 2008 Office of Personnel Management Personal Subject Interview and a Personal Financial Statement. The DOHA interrogatories asked Applicant (in part) to explain or document the status of 14 delinquent accounts totaling $118,284. Applicant explained that he lost his job and after finding a new job, he experienced a reduced salary of approximately 50%. Applicant was unemployed for a three-month period from October 2002 to December 2002.3 He stated he has been unable to remain current on his bills as a result of being unemployed or underemployed. His wife, who handled the family budget, determined which bills would be paid. His Personal Financial Statement includes the income of his full and part-time job as well as his wife’s salary. Referring to his Personal Financial 2 Item 4 (March 2008 e-QIP) is the source for the facts in this paragraph unless otherwise stated. 3 Id. 3 Statement, Applicant stated, “As you can see there is barely enough to meet the monthly obligations, let alone, any past debts” (Item 9). Applicant failed to address any of his delinquent debts. He failed to provide any information as to how he acquired the debts, why they became delinquent, what efforts he took, if any, to resolve his debts, and what measures he has taken to avoid similar financial problems in the future. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant’s eligibility for access to classified information. 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 controlling 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 classified 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. In the decision-making process, the government has the initial burden of establishing controverted facts alleged in the SOR by “substantial evidence,”4 demonstrating, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant’s access to classified information. Once the government has produced substantial evidence of a disqualifying condition, the burden shifts to applicant to produce evidence “to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and [applicant] has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” 4 See Directive ¶ E3.1.14. “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 4 Directive ¶ E3.1.15. The burden of disproving a mitigating condition never shifts to the government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).5 A person who seeks access to classified 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 classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order 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 Executive Order 12968 (Aug. 2, 1995), Section 3. Analysis Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the relevant security concern is under Guideline F (financial considerations). AG ¶ 18 articulates the security concern relating to financial problems: 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. AG ¶ 19 provides two financial considerations disqualifying conditions that could raise a security concern and may be disqualifying in this case, “(a) inability or unwillingness to satisfy debts,” and “(c) a history of not meeting financial obligations.” Applicant’s history of delinquent debt is documented in his credit reports, his answers to DOHA interrogatories, and his SOR response. Applicant has submitted no documentation to show he has a reasonable basis to dispute the legitimacy of the debts alleged in SOR. He admitted responsibility for the 14 unpaid delinquent debts totaling $118,284.00. The government established the disqualifying conditions in AG ¶¶ 19(a) and 19(c). Considering the record as a whole, I 5 “The administrative judge [considers] the record evidence as a whole, both favorable and unfavorable, evaluate[s] Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and decide[s] whether Applicant ha[s] met his burden of persuasion under Directive ¶ E3.1.15.” ISCR Case No. 04-10340 at 2 (App. Bd. July 6, 2006). 5 conclude his debts are valid delinquent debts, and that Applicant is responsible for them. 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; and (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. Applicant’s sparse favorable evidence fails to fully raise the applicability of any mitigating condition. His financial problems are ongoing and his evidence fails to show they occurred under such circumstances that they are unlikely to recur and do not cast doubt on Applicant's current reliability, trustworthiness, or good judgment. AG ¶ 20(a) does not apply. Applicant presented some evidence that established circumstances beyond his control contributing to his inability to pay his debts, i.e., his three-month period of unemployment. AG ¶ 20(b) applies, but only partially. Applicant’s evidence is not sufficient to show: 1) why he was unemployed; 2) to what extent this period of unemployment affected his current financial situation; and 3) whether he acted responsibly and with judgment under the circumstances. Applicant presented no evidence of effort to contact creditors or to resolve his debts by entering into settlement agreements or payment plans with any creditors. Other than the above-mentioned period of unemployment, he has been consistently employed. He presented no evidence of efforts to resolve any of his delinquent debts. 6 AG ¶ 20(c) does not apply because, there are no clear indications that his financial problem is being resolved or is under control. His inability to pay his debts shows he is financially overextended. He also failed to present any evidence that he received financial counseling, and that his financial problems are not likely to recur. The remaining mitigating conditions are not reasonably raised by the facts in this case. Applicant’s financial history and lack of favorable evidence preclude a finding that he has established a track record of financial responsibility, or that he has taken control of his financial situation. Based on the available evidence, his financial problems are recent, not isolated, and are likely to be a concern in the future. He has not carried his burden of proving his financial responsibility. His overall financial behavior casts doubt on his current reliability, trustworthiness, and good judgment. Whole Person Concept Under the whole person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance 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. The ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole person concept. AG ¶ 2(c). Applicant’s record of employment working for a government contractor weighs in his favor. Aside from his delinquent debts (which is a civil, non-criminal issue), he is a law-abiding citizen. These factors show some responsibility and mitigation. The evidence against mitigating Applicant’s conduct is more substantial. He has a significant history of delinquent debt that has been ongoing. Applicant submitted no documentation to show he has a reasonable basis to dispute the legitimacy of the debts, that he has attempted to contact his creditors to settle or resolve debts alleged in the SOR, or that he is receiving or has ever received financial counseling to assist him with his financial difficulties. Applicant has not produced evidence showing that he has acted responsibly or prudently in managing his financial affairs over several years, and 7 it is clear from the record that Applicant’s financial problems are recent and appear likely to be a continuing concern in the future. After weighing the disqualifying and mitigating conditions, and all the facts and circumstances, in the context of the whole person, I conclude he has not mitigated the security concerns pertaining to 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 Subparagraphs 1.a. to 1.n.: Against Applicant Conclusion In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant. Eligibility for a security clearance is denied. ____________________________ ROBERT J. TUIDER Administrative Judge