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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ADP Case No. 08-11619
SSN: ----------------- )
)
Applicant for Public Trust Position )
Appearances
For Government: Gregg Cervi, Esquire, Department Counsel
For Applicant: Pro Se
                                                                            
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Decision
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LYNCH, Noreen A., Administrative Judge:
Applicant submitted a Questionnaire for Public Trust Position (SF-85P), dated
March 28, 2007. On May 5, 2009, 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). 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 January, 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 June 1, 2009, Applicant answered the SOR. He requested a hearing before
an Administrative Judge. DOHA received the request and assigned the case to me on
July 2, 2009. Applicant and Department Counsel agreed to an August 25, 2009, hearing
date. On July 27, 2009, a Notice of Hearing was issued scheduling the hearing for that
date. The hearing was convened as scheduled. Department Counsel submitted four
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exhibits (GE) 1-4, without objection. Applicant introduced five exhibits at the hearing,
marked (AE) A-E, without objection. He testified on his own behalf. I held the record
open until August 27, 2009, for additional documents. Applicant submitted a packet
which was marked AE F and admitted into the record without objection. The transcript
(Tr.) was received on September 1, 2009. Based upon a review of the case file,
pleadings, exhibits, and testimony, eligibility for a public trust position is granted.
Findings of Fact
Applicant is a 59-year-old man working for a defense contractor. He graduated
from high school, and he enlisted in the U.S. Army after his second year of college.
Applicant served on active duty from 1970 until 1973. He was unemployed for several
months after his active duty. He served in the U.S. Army National Guard (active
reserve) from November 1974 until June 2000. In 1990, Applicant received a
commission (Tr. 53). He retired from the U.S. Army in 2000 after 30 years of service.
He held a top secret clearance in the Army without any security violations (Tr. 83).
He is married and has three adult children from two previous marriages.
Applicant had a difficult transition from military to civilian work. While he was in the
military, Applicant had excellent credit.  He did not work for several months, which
impacted his finances. He opened his own business in 2000 (AE) E. He had business
expenses and marketing costs that he paid for by using a credit card. He had no real
income from the business in 2000 or 2001 (Tr. 32). His social security account
statement confirms this assertion. The business failed in 2003 (AE) E. Applicant lost a
great deal of money. His earnings in 2003 were $856. Applicant worked as a sales
representative when the business failed. He worked on commission and did not receive
very much money. The paychecks would fluctuate. Applicant had part-time work in
2004-2005. He has worked for his current employer since September 2005, earning
less than $30,000 a year (Tr. 66).
Applicant’s mother died in 2006 (Tr. 68). The family home, valued at
approximately $500,000, is for sale (AE) C. Applicant’s share of the inheritance from
the home will be approximately $67,000 (Tr. 72). The house was under contract in
2008, but the sale did not go through (AE) D. Given the current economic climate this is
understandable. The home will sell and Applicant plans to use the money to finish
paying his delinquent debts. He presented credibly on this issue and had
documentation from his lawyer concerning the property.
Applicant has paid as many small debts as possible since 2005 when he
became employed on a full time basis (Tr. 77). He contacted other creditors and they
would not cooperate with him on settlements. His recent credit report notes several
accounts that are “paid as agreed”. He did not want to file for bankruptcy as a solution. 
At issue are the following debts totaling approximately $31,000, as noted in the
May 5, 2009 SOR allegations ¶¶ 1.a through 1.e.
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1.a – VEHICLE ($23,009) – UNPAID – Applicant admits this account represents a
voluntary repossession that occurred in 2004 because he could no longer maintain the
monthly payment. He contacted the dealership and learned the balance is now
$17,000. His intent is to settle this account as soon as he is able (Tr. 20). He believes
he will make a settlement offer and liquidate the debt for less than $17,000.
1.b – Credit Card ($5,747) – SETTLED – Applicant denied this account because he
settled it for $2,269. He has been making monthly payments. He will make his last
payment of $383 in August 2009 (AE) B).
1.c – Credit Card ($2,006) – UNPAID – Applicant admits this allegation. This is a
account that was opened in 2002. Applicant used this account when he was self-
employed (Tr. 58). 
1.d – Credit Debt ($5,061) – UNPAID – Applicant admitted this allegation. 
1.e. – DEBT ($6,940) SETTLED.-- Applicant denied this account because he has been
in repayment status for 18 months (AE) A. He made an initial payment of $2,500. His
monthly payments are $301.78. He defaulted in 2000 due to his unemployment. His
balance is approximately $5,432 (Tr. 41).
Applicant’s net monthly income from his employment is approximately $1,634.
His veteran’s disability pension is $1,429 a month. After expenses and debt repayment,
Applicant has approximately $356 net remainder. His wife is currently employed. He will
receive a military pension next year at the age of 60 (Tr. 38). He has a 401(k) worth
approximately $7,000. He is current on his monthly bills.   
Applicant works within his church community. He accepts positions of leadership
and is creative. He is a proven asset in the community. Applicant is a very responsible
member of the church. He exemplifies a man of integrity and character (AE) G.
Applicant serves on the church finance team. He is generous with his time and mentors
disadvantaged church members. His deacon recommends him highly (AE) G.
Applicant is rated as an exceptional employee. He is articulate and very thorough
in his work. He is a problem solver and a team player. He is a loyal associate who is
very trustworthy (AE) F. Applicant is extremely knowledgeable and well versed on policy
and procedure. 
Applicant’s supervisor describes him as meticulous, professional, and committed
to the mission. He received an award for his outstanding contribution to the company in
2009. His performance consistently exceeds expectations. Applicant received
recognition as a team leader for his leadership skills in 2007, 2008 and 2009 (AE) F.
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
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. . . 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 overarching 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
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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 over a period of
time after his retirement from the military. He admitted the delinquent accounts alleged
in the SOR. The evidence is sufficient to raise these disqualifying conditions.
The guideline also includes examples of conditions that could mitigate
trustworthiness concerns arising from financial difficulties. Under AG ¶ 20(a), the
disqualifying conditions 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 his 2001
transition to the civilian world. He had no real income in 2001 or 2002. His business
failed in 2003. He no longer has the business and has no intent to have another one.
While he has some lingering debt, his efforts to repay and his current status on monthly
bills does not cast doubt on his reliability, trustworthiness, or judgment. Consequently,
this mitigating condition applies.
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
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 transition from military
life to civilian or shortly thereafter, this mitigating condition applies and is a factor for
consideration. Applicant’s business failed in 2003. He paid the bills that he could
showing a good-faith effort to honor his obligations. He has a track record of paying his
bills, albeit at a slower pace than he would like. He has not shirked his responsibility.
Given his low income, he has acted reasonably in paying the accounts that he could
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manage. His family home will sell and his demeanor and presentation were credible
concerning this issue. 
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). Applicant has paid many small bills since
2005, when he started to earn a steady, but low income. He contacted creditors and
tried to negotiate settlements. He is paying on two of the debts listed in the SOR. One
is now paid. He provided documentation at the hearing to substantiate his claims. He
has paid almost 40% of his delinquent debt. Therefore, AG & 20(d), Athe individual
initiated a good-faith effort to repay overdue creditors or otherwise resolve debts@
applies.
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.       
The evidence in support of granting a position of public trust to applicant under
the whole person concept is more substantial than the evidence in support of denial.  In
reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant is
an honorable man who served his country for 30 years. He had a top secret clearance
during his military career without incident. He is an excellent employee who has
garnered many commendations. He accepts responsibility for his financial situation. His
transition from military to civilian life was difficult. He experienced low paying jobs and a
failed business venture. He did not ignore his debts.  Most significantly, he has taken
affirmative action to pay or resolve most of the delinquent debts that had initially raised 
concerns. His plan to use the proceeds from his family home was delayed due to the
economic downturn. Of course, the issue is not simply whether all his debts are paid–it
is whether his financial circumstances raise concerns about his fitness to hold a public
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trust position. While some debts remain unpaid, they are insufficient to raise concern
about a trustworthiness determination.
Overall, the record evidence does not leave me with questions or doubts 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 met his
burden and mitigated the trustworthiness concerns arising from his finances. Access is
granted.
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
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a public trust
position. Eligibility for access to sensitive information is granted.
_____________________________
NOREEN A LYNCH
Administrative Judge