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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ADP Case No. 08-08725
SSN: ----------------- )
)
Applicant for Public Trust Position )
Appearances
For Government: Jeff Nagel, 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 18, 2008. On March 27, 2009, the Defense Office of Hearings and Appeals
(DOHA) issued Applicant a Statement of Reasons (SOR) detailing trustworthiness
concerns 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 May 21, 2009, Applicant answered the SOR and he admitted the factual
allegations under the financial guideline. He requested a hearing before an
administrative judge. DOHA received the request and the case to me on July 28, 2009.
Applicant and Department Counsel agreed to a September 10, 2009, hearing date. On
August 14, 2009, a Notice of Hearing was issued scheduling the hearing for that date.
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The hearing was convened as scheduled. Department Counsel introduced eight
exhibits (GE) 1-8, without objection. Applicant introduced five exhibits (AE) A-F, without
objection. He testified on his own behalf. The transcript (Tr.) was received on
September 18, 2009. Based upon a review of the case file, pleadings, exhibits, and
testimony, eligibility for a public trust position is denied.
Findings of Fact
Applicant is a 52-year-old employee of a defense contractor. He graduated from
high school and received an Associate of Science Degree from a technical college in
1977. He continues to attend college courses and is working on his undergraduate
degree (Tr. 45). He is divorced and has one son. He has worked for his current
employer since February 2008 (Tr. 29).
Before his current employment, Applicant worked in the technology field. In
2001, his steady employment ended (Tr. 23). He was earning approximately $60,000
annually. He had difficulty finding permanent professional employment, and he worked
in various temporary lower paying positions. His marriage ended in divorce in July 2001,
which added to his financial difficulties (AE B). His salary was approximately halved to
$30,000 when he found a full-time position in 2003. In 2003, his father was diagnosed
with cancer. Applicant relocated to his father’s home to care for him. He lost
employment opportunities when he decided to care for his father. 
In 2006, Applicant began a full-time position that paid well. The contract for his
job ended in 2007, and Applicant faced unemployment for almost one year (Tr. 27).
Applicant did not have health insurance due to unemployment. He incurred medical
bills. He had surgery for a cornea transplant and he had another operation that was
necessary. He depleted his savings and eventually lost his home. He could not maintain
his payments on his accounts.
At issue are the following debts totaling approximately $48,000 as noted in the
March 27, 2009 SOR as allegations ¶¶ 1.a through 1.p.
1.a Judgment ($1,163) UNPAID Applicant admits this represents unpaid rent for an
apartment lease.
1.b Medical ($515) UNPAID Applicant did not recall the account, but believes it
occurred during his unemployment. He admits the debt.
1.c Medical ($256) UNPAID Applicant admits this allegation.  
1.d Collection ($2,325) UNPAID Applicant believes this may be a duplicate of the
alleged debt in 1.a. He has not researched the debt but included it in his repayment
schedule.
1.e Collection ($150) UNPAID Applicant denies this account.
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1.f Phone ($1,268) UNPAID Applicant admits this allegation and stopped paying during
his period of unemployment.
1.g Collection ($1,093) UNPAID Applicant admits this allegation represents a credit
card account.
1.h Auto ($9,800) UNPAID Applicant admits the car was repossessed. He stopped
making payments when he was unemployed. He did not research the account.
1.j Child Support ($4,434) Applicant denies the amount. He produced documentation
that he has $18 in arrears as of September 2009.
1.k Collection ($2,644) UNPAID Applicant acknowledges this represents a credit card
that had a balance of approximately $500, but with interest and penalties it has
increased to the current amount (Tr. 53).
1.l Auto ($20,316) UNPAID Applicant admits this is another vehicle repossession in
approximately 2003. 
1.m Medical ($2,795) UNPAID Applicant admits this allegation, but did not explain the
reason for the account.
1.n Medical ($490) UNPAID Applicant admits this allegation, but did not explain the
reason for the account.
1.o Medical ($243) UNPAID Applicant admits this allegation. This represents the
surgery for the cornea transplant.
1.p Collection ($136) UNPAID Applicant admits this allegation for a cable bill that was
not paid.
Applicant obtained the services of a consumer credit counseling service in 2008
(AE D). Before 2008, he researched various debt management companies and
determined that it was not in his best interests to use them (GE 6). He has a repayment
plan (AE C). The debts alleged in the SOR are on the repayment plan. He has not
started making payments. He did not want to commit to making payments if he does not
receive a clearance and then does not retain his current job. He also explained that his
son has sports expenses that Applicant pays (Tr. 57). His current salary is $65,000 (Tr.
61). He estimates a net monthly remainder of $500. He is current on his monthly
expenses, including his $400 car payment (Tr. 63). He rents a room and lives in a frugal
fashion. He pays $229 a month for child support (Tr. 42).
Applicant acknowledged responsibility for his delinquent debts. He does not
dispute them. He paid two judgments for motor vehicle fines to the municipal courts in
July 2009. The fines dated back to 2004 (AE F). He was in arrears in child support
payments but as of September 2009, his arrearage was $18 (AE E).
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In response to the DOHA 2008 interrogatories, Applicant noted various accounts
that would be paid in full in January 2009. He submitted his repayment plan. However,
he has not followed the plan. He noted that his wages were garnished for the child
support arrearage.
Applicant’s employer recommends him for a public trust position. Applicant
demonstrates diligence in his job duties and provides technical knowledge that has
been indispensable to the company.
Applicant’s previous supervisor recommends Applicant for a public trust position.
He described Applicant as detail-oriented, pleasant, honest, and competent (AE A). His
supervisor considers him one of the most trustworthy team managers. His management
and communication skills are excellent. Applicant is responsible for large expenditures
in his work.
Applicant’s colleagues report he is a dependable team player. He is mature,
logical, practical, and responsible. He is an asset to the organization. He is ambitious
and is a leader. Applicant deal with sensitive contract issues in an efficient and
professional manner (AE A). 
Applicant is active in his son’s life. He is a loving and devoted father. He
presented 12 letters of recommendation from friends and colleagues.
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 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.
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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
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@
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may raise security concerns. Applicant accumulated delinquent debt from 2001 until the
present. He acknowledged the accounts represented old debt for approximately
$48,000, including two vehicle repossessions. 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 first
unemployment in 2001. He suffered further unemployment in 2007, and had lower
paying jobs until his current position. However, he was unwilling to pay his debts after
he became employed. 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
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 periods of
unemployment and divorce, this was beyond his control. However, he has not acted
responsibly by waiting to pay the delinquent debts. He does not want to pay the older
debts in case he is not eligible for a position of public trust and loses his job. Some of
the delinquent debts are small and could have been paid. This mitigating condition does
not apply. 
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 not received formal financial
counseling. He obtained the services of a credit consolidator. He has a repayment plan
that includes the debts listed in the SOR. However, he has not started the repayment
plan. He paid two judgments that were the result of fines in 2004. He does not have a
significant child support arrearage. He is conditioning his repayments on obtaining a
position of public trust. Therefore, AG & 20(d), Athe individual initiated a good-faith effort
to repay overdue creditors or otherwise resolve debts,@ does not apply.
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
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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 individual who
has worked in a professional capacity his entire career. He is recommended for a
position of trust by his supervisors and colleagues. He is a devoted family man.
Applicant’s debts started when he became unemployed in 2001. He experienced lower-
paying jobs for several years. He found himself unemployed again in 2007. His
marriage ended in divorce in 2001. He takes responsibility for the debts.
The debts appeared on his credit report for a number of years. In February 2008,
he obtained a position that pays a greater sum of money. He is doing well in his job. He
obtained the services of a debt consolidation company in December 2008. He has
included all the debts that are listed on the SOR. However, he is waiting to start the
repayment plan. He wants to be certain that he receives a position of public trust and
does not lose his job.
Overall, the record evidence leaves me with questions and 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 has not met
his burden and has not mitigated the trustworthiness concerns arising from his
finances. 
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:-1.p: Against Applicant
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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.
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NOREEN A LYNCH
Administrative Judge