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                           DEPARTMENT OF DEFENSE   
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
 ------------------------- )     ISCR Case No. 08-08925
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Gina L. Marine, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant fell behind in his child support and on a credit card account. He also
owed past due balances on two utility services accounts. His financial delinquencies are
attributable in part to unemployment and low wages, and to the criminal activity of a
former employer. The child support issue has been resolved, and he has paid $4,100
toward his delinquent credit card debt. Clearance is granted.
Statement of the Case
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on April 2, 2008. On April 24, 2009, the Defense Office of Hearings and Appeals
(DOHA) issued to Applicant a statement of reasons (SOR) detailing the security
concerns under Guideline F that provided the basis for its decision to deny him a
security clearance and refer the matter to an administrative judge. 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
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amended (Directive); and the revised adjudicative guidelines (AG) effective within the
Department of Defense as of September 1, 2006.
On May 18, 2009, Applicant answered the SOR and requested a hearing. The
case was assigned to me on May 28, 2009, to conduct a hearing and to determine
whether it is clearly consistent with the national interest to grant or continue a security
clearance for Applicant. On June 2, 2009, I scheduled a hearing for June 17, 2009.
I convened the hearing as scheduled. Five government exhibits (Ex. 1-5) were
admitted, Exhibits 3 and 4 over Applicant’s objections. Applicant represented himself
with the assistance of a former supervisor. Applicant, this supervisor, and a state
employee familiar with Applicant’s child support situation, testified on Applicant’s behalf,
as reflected in a transcript (Tr.) received on June 26, 2009. Applicant also submitted  20
exhibits (Ex. A-T), which were admitted without any objections.
At Applicant’s request, I held the record open until July 1, 2009, for him to submit
proof of debt repayment. On July 24, 2009, Applicant submitted through his former
supervisor copies of documents pertaining to SOR ¶¶ 1.i and 1.j. On July 26, 2009,
Applicant forwarded records pertinent to the closure of his child support case, and
evidence of recent money orders showing payments on SOR ¶ 1.h. Department
Counsel indicated on July 7, 2009, that the government did not object to the admission
of the post-hearing submissions, and the documents were accepted into the record as
full exhibits (Ex. U-W).
Findings of Fact
DOHA alleged under Guideline F, financial considerations, that Applicant owed
judgment debts of $2,550 entered against him and in favor of child support enforcement
in June 2004 (SOR ¶ 1.a) and January 2005 (SOR ¶ 1.b), and that state tax liens or
warrants had been entered against him in April 2006 for $2,534 (SOR ¶ 1.c), June 2007
for $2,879 (SOR ¶ 1.d), October 2002 for $3,244 (SOR ¶ 1.f), and August 2003 for
$3,150 (SOR ¶ 1.g). DOHA also alleged that Applicant owed $19,110 in delinquent child
support (SOR ¶ 1.e), a financial judgment of $9,864 to a consumer debt collection
agency (SOR ¶ 1.h), and two delinquent utility debts of $182 (SOR ¶ 1.i) and $163
(SOR ¶ 1.j). Applicant denied the allegations and explained that the child support matter
and related judgment and tax liens in SOR ¶¶ 1.a through 1.g had been resolved. He
averred that the balance of SOR ¶ 1.h was about half of the amount alleged, and that
he had paid the debts in SOR ¶¶ 1.i and 1.j.
After considering the pleadings, transcript, and exhibits, I make the following
findings of fact.
Applicant is a 54-year-old janitor who had worked for a defense contractor in
state A from April 2008 until mid-May 2009, when he was laid off because of lack of
work due to no security clearance (Tr. 109-10, 125). He is subject to being recalled by
the defense contractor should his clearance be adjudicated favorably. His supervisors
would like to have him back at work (Tr. 112, 161-64). He requires a secret clearance.
On June 2, 2009, the current assignee reported a $6,864.63 balance due, apparently after payment1
of the $3,000, which was received by the collection agency on May 14, 2009 (Ex. K). Applicant was unaware
of the judgment before his background investigation for his security clearance (Tr. 132).
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Applicant was married in August 1985. He and his ex-wife had three children by
December 1987. In 1994, they went through a bitter divorce and, although Applicant
was court-ordered to pay child support in state B from October 1995 (Ex. 4), he had no
contact with his children (Ex. 1, Tr. 95). Applicant struggled to pay his child support on
time due to periods of unemployment (Tr. 137). In about December 2001, his wages
were ordered garnished to pay child support (Tr. 137-39). From June 2000 to December
2002, he worked at a local liquor store. In about June 2001, he began working part-time
as a security officer at $7 an hour for a local casino in state A while continuing to work
weekends at the liquor store (Tr. 90). In May 2004, he was laid off by the casino (Ex. 1).
Shortly after Applicant began working at the casino, a collection agency obtained
a $9,864 judgment against him in August 2001 (SOR ¶ 1.h) to recover a delinquent
credit card balance (Ex. 4).  His wages at the casino were garnished by state B for child1
support at $125 a week from March 11, 2002, through April 1, 2002 (Ex. A). He made
no payments on his child support through the remainder of his employ at the casino.
Tax warrants (liens) were filed against him by state B in October 2002 for $3,244.16 and
in August 2003 for $3,150 because he was delinquent in his child support (Exs. 3, E). In
June 2004, the county child support enforcement division obtained a financial judgment,
and state B issued a tax lien against him, for $2,550 (Exs. 4, E). 
Applicant worked as a painter for a local building contractor part-time when
needed from about June 2004 to December 2005 (Ex. 1, Tr. 91). In January 2005, a tax
warrant was issued against Applicant in the amount of $2,550 for failure to pay the child
support judgment (Ex. E). In early April 2005, Applicant’s federal income tax refund of
$794.29 was intercepted and applied to his child support (Ex. M). In early May 2005,
Applicant was hired by a local janitorial company at $9.25 per hour, although his wage
increased slightly to $10 an hour shortly after he started. As of January 2006, the
janitorial company was his only employer. Applicant’s wages were garnished at $125
per week for child support from August 5, 2005, through April 21, 2007, with the
exceptions of the weeks of October 9, 2005, when $70.98 was taken, and July 2, 2006,
and February 25, 2007, when nothing was taken (Exs. 2, B). Applicant’s employer was
obligated under state law to forward the child support payments to state B (Ex. 2).
Applicant assumed his employer was submitting the full child support payments
to state B. On February 22, 2006, Applicant was notified by the child support processing
center that a payment issued by his employer on his behalf in early February 2006 for
$125 had been returned on the basis of account closed (Exs. 2, A, J). Applicant was
assured by his employer that it was a mix-up because she had changed banks, and that
payments were being made (Tr. 153).
After issuing three insufficient funds checks to state B in January/February 2006
(Exs. 2, J, Tr. 24), Applicant’s employer continued to garnish Applicant’s wages but did
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not forward the monies to state B as required. In April 2006, state B issued a tax
warrant against Applicant in the amount of $2,534.73 (Exs. 3, E). His federal income tax
refund was intercepted in April 2006 and applied to his child support (Ex. M). In
November 2006, his employer paid $500 to the child support division on Applicant’s
behalf, but again failed to comply until April 2007, when the company resumed
submitting the $125 weekly child support to state B (Ex. A).
Applicant was laid off by the janitorial company in April 2007 (Ex. 1). He did not
pay his child support over the next year because he was unemployed and could not
afford to make the payments. He was denied unemployment because his former
employer indicated that he had left the job, which he maintains was not true (Tr. 93). His
sister helped him out by allowing him to live with her (Tr. 94). In June 2007, state B
obtained a judgment against Applicant in the amount of $2,879 for nonpayment of child
support (Exs. 3, 4). His income tax refunds were intercepted in 2007 and 2008 and
applied to his child support debt (Exs. A, M).
In April 2008, Applicant began working as a janitor for a defense contractor. On
July 14, 2008, he paid $1,065.70 to settle a delinquent credit card debt of $2,131.39
(not alleged in SOR) (Ex. 2). From August 15, 2008, through October 23, 2008,
Applicant paid state B $75 per week toward his child support (Exs. 2, N). In November
2008, the defense contractor began garnishing his wages for child support, at $125 per
week through December 2008, and at $50 per week thereafter (Ex. A). That fall, he also
paid a $182 gas services debt delinquent since November 2002 (SOR ¶ 1.i) (Exs. 2, 3,
P, U). He obtained a money order of $163 to pay a delinquent electric bill owed since
June 2007 (Exs. 2, 3), but it was returned to him by the credit union because the power
company could not identify the account to apply the payment (Ex. R). Applicant first
learned of these two debts when he reviewed a copy of his credit report during his
background investigation (Tr. 131).
Applicant learned from former coworkers that the janitorial services company had
withheld wages from them but had not submitted their payments (Tr. 16). In late
September 2008, he filed a formal complaint with state A’s Department of Labor (Exs.
D, I). A wage enforcement agent investigated and determined that the janitorial services
company had withheld $8,695.98 in total wages from Applicant’s pay for child support
but had forwarded only $3,195.98 to state B’s support enforcement division (Ex. C. Tr.
17). The investigator filed a complaint in superior court in state A charging Applicant’s
former employer with failure to pay wages, a felony offense under state law (Ex. C, Tr.
31-32). As of June 2009, Applicant’s former employer had been arraigned but had not
yet been tried on the charge (Tr. 40).
On March 9, 2009, state B closed his child support account as he no longer owed
a balance (Ex. V). On March 23, 2009, the tax warrants issued by state B for
nonpayment of child support were all vacated (Ex. E). On April 3, 2009, state B
intercepted his federal income tax refund of $1,497 and applied it to his child support
(Ex. M). On April 14, 2009, state B refunded Applicant $2,900 in overpayment of his
child support (Ex. F). On May 27, 2009, the income tax refund of $1,497 applied to his
child support was refunded to him as well (Ex. O). In May 2009, Applicant resolved his
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old debt to the electric company (SOR ¶ 1.j) (Exs. G, U). Forgetting that he had already
satisfied the debt in SOR ¶¶ 1.i, he paid $183 to the gas company in May 2009 (Exs. G,
P).
In May 2009, Applicant negotiated a settlement of the judgement debt in SOR ¶
1.h with the new assignee. The creditor agreed to accept $5,000 to settle the debt on
receipt of $3,000 on or before May 14, 2009, and one payment of $2,000 on or before
June 30, 2009 (Ex. K). Applicant paid $3,000 on May 13, 2009 (Exs. G, U), $800 on
June 18, 2009, and $300 on June 25, 2009 (Ex. W). As of June 2009, he was collecting
unemployment compensation at $380 a week (Tr. 109, 118).
Applicant moved into his current residence in mid-October 2008. He has paid his
monthly rent of $750 (Ex. S) on time and his utilities are current as of June 2009 (Ex. T,
Tr. 120). He has no active credit card accounts (Ex. 4).
Policies
The U.S. Supreme Court has recognized the substantial discretion of the
Executive Branch in regulating access to information pertaining to national security
emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v.
Egan, 484 U.S. 518, 528 (1988). 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 overarching 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
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. 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 security decision.
A person who seeks access to classified information enters into a fiduciary
relationship with the government predicated upon trust and confidence. This relationship
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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
that 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 EO 12968, Section 3.1(b) (listing multiple prerequisites for access
to classified or sensitive information).
Analysis
Guideline F, Financial Considerations
The security concern about finances 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 classified information. An individual who is financially overextended
is at risk of having to engage in illegal acts to generate funds.
Applicant has a history of late child support payments that led to garnishment of
his wages beginning in about December 2001. Child support records show no payments
were made on Applicant’s account between May 2002 and May 2005. Between August
2003 and June 2004, two judgments and four tax warrants (liens) were issued against
him for failure to comply with court-ordered child support. Applicant was a victim of
criminal activity in that a former employer did not forward more than $5,000 in wages
withheld to state B’s child support agency, but there were times before 2006 and after
April 2007 when Applicant was responsible for paying his child support on time and did
not do so. Furthermore, a financial judgment was issued against him in August 2001
because of a delinquent credit card, and two utility debts (gas and electric) were placed
for collection. AG ¶ 19(a), “inability or unwillingness to satisfy debts,” AG ¶ 19(b), “a
history of not meeting financial obligations,” apply.
AG ¶ 20(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,” applies in mitigation of
his child support delinquency when he worked for the janitorial company. Applicant
received wage statements showing that his employer was garnishing his wages for child
support between August 2005 and April 2007, and he relied in good faith on his
employer who indicated she was making the payments.
AG ¶ 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,
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unexpected medical emergency, or a death, divorce or separation), and the individual
acted responsibly under the circumstances,” is clearly implicated. The criminal behavior
of his former employer was not reasonably foreseeable. AG ¶ 20(b) also applies to the
extent that lack of income was a factor in his failure to timely address his child support
delinquency from April 2007 to April 2008. Applicant testified that he was out of work for
one year after he was laid off from the janitorial company. He was denied
unemployment when his former employer claimed he walked off the job. Applicant
denies he left the company voluntarily, and his former employer’s version is viewed
skeptically given its failure to turn over about $5,000 of Applicant’s wages to state B’s
child support agency.
Moreover, the evidence supports AG ¶ 20(d), “the individual initiated a good-faith
effort to repay overdue creditors or otherwise resolve debts.” Applicant made $75 child
support payments directly to the child support agency from mid-August 2008 through
late October 2008, until his employer began garnishing his wages. He was unaware of
the debts in SOR ¶¶ 1.h-1.j before the recent clearance investigation. In the fall of 2008,
he satisfied the gas debt and attempted to resolve the electric services debt. As of May
2009, the utility debts had been paid. His child support case was closed in March 2009
because he was no longer obligated to pay child support (his children are now adults)
and arrearage had been paid. The state vacated the tax warrants.
By the close of the record, Applicant had fully resolved all the issues but for the
judgment debt in SOR ¶1.h. On or before mid-May 2009, the creditor agreed to accept
$5,000 to settle the debt. Applicant paid $3,000 before he was laid off by the defense
contractor because of no clearance. He paid an additional $1,100 toward the debt in
June 2009. The creditor is free to reserve the right to modify or revoke the settlement
offer, since Applicant fell short of paying the full $2,000, but he has done enough for AG
¶ 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.”
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 conduct
and all the circumstances in light of 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.
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Under AG ¶ 2(c), 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.
The DOHA Appeal Board has addressed a key element in the whole person
analysis in financial cases stating, in part, “an applicant is not required, as a matter of
law, to establish that he has paid off each and every debt listed in the SOR. All that is
required is that an applicant demonstrate that he has ‘ . . . established a plan to resolve
his financial problems and taken significant actions to implement that plan.’” ISCR Case
No. 07-06482 at 2-3 (App. Bd. May 21, 2008) (internal citations omitted). Concerns are
legitimately raised about Applicant’s financial judgment because of nonpayment of his
child support obligation for three years. While he may not have known about the
outstanding credit card judgment against him, his reliance on credit for purchases
enjoyed by him or his family was knowing and willful. Yet his recent behavior has been
financially responsible. He has resolved most of his debt and lives within his means on
limited income. Since his children are grown, he no longer has the financial burden of
child support. He does not have an active credit card account. Under the circumstances,
the financial problems are not likely to recur.
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: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Subparagraph 1.g: For Applicant
Subparagraph 1.h: For Applicant
Subparagraph 1.i: For Applicant
Subparagraph 1.j: For Applicant
Conclusion
In light of the record in this case, it is clearly consistent with the national interest
to grant Applicant eligibility for a security clearance. Eligibility for access to classified
information is granted.
ELIZABETH M. MATCHINSKI
Administrative Judge