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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------, ------ ------- )       ADP Case No. 08-00826
SSN: ------ ---- -------- )
)
Applicant for Public Trust Position )
Appearances
For Government: Tom Coale, Esquire, Department Counsel
For Applicant: Pro Se
                                                                            
______________
Decision
______________
WHITE, David M., Administrative Judge:
Applicant still has more than $30,000 in delinquent debt despite reporting more
than $3,000 per month in excess income since her 2006 marriage and 2007
employment. She also has a substantial history of domestic violence offenses spanning
multiple relationships and court-ordered treatment programs. Based upon a review of
the case file, pleadings, and exhibits, eligibility for access to ADP I/II/III sensitive
information is denied.
On April 9, 1993, the Composite Health Care Systems Program Office
(CHCSPO), the Defense Office of Hearings and Appeals (DOHA), and the Assistant
Secretary of Defense for Command, Control, Communications and Intelligence (ASD
C3I) entered into a memorandum of agreement for DOHA to provide trustworthiness
determinations for contractor personnel employed in Sensitive Information Systems
Positions (ADP I/II/III), as defined in DoD Regulation 5200.2-R, Personnel Security
Program, dated January 1987, as amended (Regulation).
Applicant submitted her Public Trust Position Application (SF 85P), on May 24,
2007. On May 5, 2009, DOHA issued a Statement of Reasons (SOR) to Applicant
detailing the trustworthiness concerns under Guideline F (Financial Considerations) and
Item 3.1
The government submitted ten Items in support of the allegations.2
Item 4 at 1, 5, 6.3
2
Guideline J (Criminal 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); the Regulation
(supra); 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. 
Applicant acknowledged receipt of the SOR on May 18, 2009. She answered the
SOR in writing on June 4, 2009, and requested that her case be decided by an
administrative judge on the written record without a hearing.  Department Counsel1
submitted the Government’s written case on July 7, 2009. A complete copy of the file of
relevant material (FORM)  was provided to Applicant on July 8, 2009, and she was2
afforded an opportunity to file objections and submit material in refutation, extenuation,
or mitigation. Applicant signed the document acknowledging receipt of her copy of the
FORM on July 20, 2009, and returned it to DOHA. She provided no further response to
the FORM within the 30-day period she was given to do so, did not request additional
time to respond, and made no objection to consideration of any evidence submitted by
Department Counsel. The case was assigned to me on October 9, 2009.
Findings of Fact
Applicant is a 31-year-old employee of a defense contractor. She has four
children, ages 12, 7, 6, and 5. Only the eldest child lives with Applicant and her
husband, who she married in September 2006.3
In her answer to the SOR, dated June 4, 2009, Applicant admitted the financial
allegations in ¶¶ 1.h., 1.i., 1.k., and 1.o. of the SOR, with explanations. These non-
medical debts total $13,063. She denied the allegation in ¶ 1.a. concerning a $429
judgment for past-due child support because it has been satisfied through garnishment.
She also denied the allegations of delinquent medical debts in ¶¶ 1.b. through 1.g., 1.j.,
1.l., 1.m., 1.n., and 1.p., totaling $17,777. Finally, she admitted the criminal allegations
in SOR ¶¶ 2.a through 2.f., with some explanations. Applicant’s admissions are
incorporated herein as findings of fact. 
Concerning the four debts to which Applicant admitted, she said she was
working with a financial counselor on a budget plan to begin making payment
arrangements to satisfy those creditors. The only evidence she provided in support of
this assertion was a printout of a website page showing the name and contact
Item 3 at 19.4
Item 8 at 6, 7, 9.5
Item 3 at 1, 16, 17.6
Item 3 at 18.7
Items 5, 6, and 7 show the following dates for the debts in the corresponding SOR paragraphs: 1.b. 3/05;8
1/c. 4/03; 1.d. 3/06; 1.e. 12/05; 1.f. 3/05; 1.g. 3/04; 1.j. 5/04; 1.l. 2001; 1.m. 1/03; 1.n. 2006; 1.p. 5/04.
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information for a person at a financial counseling company in a distant state.  She4
provided no evidence of any financial education, progress toward establishing a budget,
or attempts to resolve any delinquent debts in response to the SOR or the FORM. 
Applicant was interviewed by an investigator from the Office of Personnel
Management (OPM) on October 17, 2007, and again on November 7, 2007. She
discussed her delinquent debts and the resulting potential security concerns with the
investigator, and said that her life was becoming more stable and she hoped to improve
her credit by paying off her bills as she could. She claimed, without corroboration, that
she and her husband had a combined monthly net remainder of more than $3,000 after
meeting their living expenses and current debt payments. She attested to the accuracy
of these statements on October 22, 2008, as part of her response to DOHA
interrogatories.  She provided no explanation for the absence of any progress toward5
resolving her admitted delinquent debts during the more than two years since her OPM
interviews, while claiming to have more than $36,000 per year available for that
purpose. 
As noted above concerning SOR ¶ 1.a., Applicant documented her satisfaction
of the $429 judgment against her for past-due child support through wage
garnishment.  She claimed that all of the alleged delinquent medical debts were6
erroneously reported on her credit reports because she was covered by Medicaid when
she incurred them. In support of this claim, she provided a “Medicaid Management
Information System Certificate of Coverage” from her state Department of Health. This
document shows that she was entitled to Medicaid or her state’s Medical Assistance
Program during the periods from August 1, 2003, to January 31, 2004, and from
September 1, 2004, to February 28, 2005.  The record credit reports indicate that all of7
the delinquent medical debts that Applicant denied accrued during times that were
outside these two windows of Medicaid coverage.  8
The largest of these debts is for $15,023 (¶ 1.j.), which  was placed for collection
in May 2004. In her OPM interview and her answer to the SOR, Applicant claimed that
this debt was for hospital expenses incurred during the birth of her son in November
2003. That was a month during which she was eligible for Medicaid coverage, but she
provided no evidence from which a link between this debt and that event could be
confirmed. Applicant also forwarded copies of dispute letters to each SOR-listed
Item 3 at 5 through 15.9
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In her October 22, 2008, response to DOHA interrogatories, Applicant wrote, “All medical bills showing a
balance are not necessarily true and correct. I was covered by Medicaid during the time of treatment,
especially the one of $15,023. I will start doing what I need to, to remedy these debts reflected on my report.”
Applicant did not explain why she waited until the day she responded to the SOR to begin disputing those
debts with the creditors. 
See Item 3 at 3; Item 4 at 7; Item 8 at 3-5; Item 10 at 2. 11
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medical creditor, all dated June 4, 2009, with her answer to the SOR of the same date.9
She provided no further evidence concerning the status of any of these disputed
accounts by her August 20, 2009, deadline to respond to the FORM.  10
Applicant’s admissions and record evidence establish the following facts
concerning her criminal conduct.  She was arrested in March 2001 and charged with11
Disorderly Conduct. During the fall of 2002, she and the father of her eldest child had a
fight in the presence of the then-5-year-old. Based on the son’s description of events to
the police, Applicant was arrested and charged with Domestic Violence in Presence of
Child and Assault. Applicant pled guilty to the charge of Simple Assault and was fined.
In her OPM interview and answer to the SOR, Applicant claimed she was actually the
victim in the incident, contrary to her guilty plea. She offered no evidence to corroborate
this version of events.
During February 2003, Applicant had a fight with the man who became the father
of her two youngest children, with whom she was then living, when she caught him
kissing another woman. She left the scene of the fight, but was arrested shortly
thereafter and charged with Domestic Violence Assault, Disorderly Conduct, and
Criminal Trespass. She entered into a plea-in-abeyance agreement, under which the
court accepted her guilty pleas but agreed not to enter convictions on the charges if she
complied with the stipulated probationary conditions. These included her successful
completion of a domestic violence class.  
Applicant admitted that she was arrested for Simple Assault in about July 2003
in her answer to ¶ 2.d of the SOR, and said it was dismissed because she was found
not to be the guilty party. On her SF 85P, she listed a conviction and fine for Disorderly
Conduct in July 2003 in response to question 16. Her FBI Identification Record lists an
arrest for Assault on October 14, 2003, but none during July 2003. During her OPM
interview, she said that she did not recall being arrested in October 2003, but did not
deny that it occurred. She also said that she and the man involved in the February 2003
incident lived together until May 2006, and “verbally fought” all the time. I find that the
arrest for Assault alleged in SOR ¶ 2.d. actually occurred in October 2003. 
Applicant was arrested again in October 2005, and charged with Simple Assault
and Criminal Mischief. At the time, she and her boyfriend were living apart and he was
under a restraining order not to be in her presence. When both arrived at the home of a
mutual friend, they fought over who should leave. Applicant wound up throwing a rock
Item 3 at 20-22.12
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at her boyfriend’s truck and caused $400 in damage. She pled guilty to the Criminal
Mischief charge and was sentenced to a fine, 30 days in jail (all suspended), one year
of supervised probation, and ordered to complete another domestic violence program
and pay restitution. Applicant was arrested for Assault a final time in either November
2005 or January 2006. This charge was dismissed after she again completed domestic
violence counseling. 
Three supervisors with whom Applicant has worked during the two years in her
present position wrote letters praising her work performance, initiative, and dedication.
They also expressed high opinions of her trustworthiness and good character.  I was12
unable to evaluate her credibility, demeanor, or character in person since she elected to
have her case decided without a hearing.  
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.
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.
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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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable [trustworthiness] decision.”
A person who applies for access to sensitive information seeks to enter 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 10865 provides that “[a]ny
determination under this order adverse to an applicant shall be a determination 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 concerns relating to the guideline for Financial
Considerations are 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 “inability or unwillingness to satisfy debts” is potentially
disqualifying. Similarly under AG ¶ 19(c), “a history of not meeting financial obligations”
may raise security concerns. Applicant accumulated $31,269 in delinquent debts
between 2001 and 2006. She only repaid one $429 judgment, through a wage
garnishment, despite claiming to have sufficient excess income to have paid them all.
The evidence is sufficient to raise these potentially disqualifying conditions, requiring a
closer examination.
The guideline also includes conditions that could mitigate trustworthiness
concerns arising from financial difficulties. Under AG ¶ 20(a), the disqualifying condition
may be mitigated where “the behavior happened so long ago, was so infrequent, or
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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.” Applicant’s
history of inability or unwillingness to pay her debts spans more than eight years, and
continues to date. She provided no evidence this would not continue or recur, so this
mitigating condition is not supported by the record.
Under AG ¶ 20(b), it may be mitigating where “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.” Applicant’s financial
problems arose before her present employment because she spent more to support
herself and her children than she earned. In 2006 she married a man who reportedly
has a good income, and in 2007 she began working for her current employer. For more
than the past two years, she reports having over $3,000 per month in discretionary
income after paying living expenses. However, she did not provide an explanation for
her failure to make payments, or documentation supporting an attempt to resolve her
substantial delinquent debt. She has not met her burden to establish that this potentially
mitigating condition is a factor for consideration in this case.
Evidence that “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”
is potentially mitigating under AG ¶ 20(c). Her effort to document counseling by
submitting a printout of a financial counselor’s web site is insufficient to support
application of this provision, particularly absent evidence of resolution of more than
$30,000 in delinquent debt. Similarly, AG ¶ 20(d) applies where the evidence shows
“the individual initiated a good-faith effort to repay overdue creditors or otherwise
resolve debts.” The only resolution of an SOR-alleged debt took place because the
judgment creditor garnished her wages for past-due child support. This does not
constitute a good-faith effort to resolve her debts. AG ¶ 20(e) pertains to documentation
of a legitimate basis to dispute the debts in question. Applicant submitted copies of
dispute letters purportedly mailed to her medical creditors on the day she responded to
the SOR, but failed to demonstrate any legitimate basis for the dispute since the debts
were incurred during periods outside the times for which she documented her eligibility
for Medicaid.
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining to criminal conduct: 
Criminal activity creates doubt about a person's judgment, reliability, and
trustworthiness. By its very nature, it calls into question a person's ability
or willingness to comply with laws, rules and regulations. 
AG ¶ 31 describes conditions that could raise a security concern and may be
disqualifying. The conditions supported by this record are, ¶ 31(a) “a single serious
crime or multiple lesser offenses;” and ¶ 31(c) “allegation or admission of criminal
conduct, regardless of whether the person was formally charged, formally prosecuted,
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or convicted.” Applicant was arrested six times between 2001 and 2006 for Disorderly
Conduct, Assault, and Criminal Mischief related to multiple incidents of domestic
violence. None of these incidents was particularly serious, and some charges were later
dismissed, but the pattern and recidivism, despite attending numerous domestic
violence treatment programs, support significant concerns about her judgment and her
ability or willingness to comply with laws, rules, and regulations. 
AG ¶ 32 provides conditions that could mitigate criminal conduct security
concerns. These are: 
(a) so much time has elapsed since the criminal behavior happened, or it
happened under such unusual circumstances that it is unlikely to recur
and does not cast doubt on the individual's reliability, trustworthiness, or
good judgment;
(b) the person was pressured or coerced into committing the act and
those pressures are no longer present in the person’s life;
(c) evidence that the person did not commit the offense; and
(d) there is evidence of successful rehabilitation; including but not limited
to the passage of time without recurrence of criminal activity, remorse or
restitution, job training or higher education, good employment record, or
constructive community involvement.
AG ¶¶ 32(a) and (b) provide minimal, if any, mitigation in this case. Applicant is
no longer in relationships with the fathers of her first child, or her third and fourth
children, who were the victims of her domestic violence offenses. There is no evidence
she was pressured or coerced into those crimes, however. She has not had any such
incidents with her husband to date, but the repeated crimes following court-ordered
treatment and the relative recency of the last offenses preclude a finding that such
conduct is unlikely to recur or that it  does not cast doubt on her good judgment. 
Applicant provided no evidence to corroborate her assertions that she was
wrongly accused in some of these incidents, and her convictions after pleading guilty
collaterally estop a finding that she did not commit those offenses. Accordingly, AG ¶
32(c) does not provide substantial mitigation. Applicant did provide some evidence of a
recent good employment record, and has not committed additional offenses during the
past three years. She has thus proven some mitigation under AG ¶ 32(d). The weight of
this evidence does not yet meet her burden of persuasion, however, when considered
in light of the length and repetitive pattern of her offenses spanning multiple years,
relationships, and treatment programs. 
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
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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. 
I considered the potentially disqualifying and mitigating conditions in light of all
the pertinent facts and circumstances surrounding this case. Applicant is a mature and
experienced individual who is accountable for her choices. She incurred more than
$30,000 in delinquent debts over a six year period by spending more than she earned.
Over the past two years, she claims to have more than $36,000 per year in excess
income over her living expenses, yet only resolved one small delinquent debt as a result
of wage garnishment. She made no effective effort to arrange resolution of the
remaining debts, however, demonstrating neither rehabilitation nor permanent
behavioral changes. The potential for pressure or duress from her creditors leading to
exploitation or misuse of sensitive information remains substantial. Her pattern of
significant financial delinquency makes continuation or recurrence of financial
irresponsibility more likely than not. 
Her history and repetitive pattern of domestic violence offenses are similarly
serious, frequent, and recent when viewed as a whole. She is now, apparently, in a
better relationship with her husband and has begun to demonstrate rehabilitation. It is
too soon, however, to reach a reasonable finding that the judgment and reliability issues
raised by Applicant’s financial and criminal history are sufficiently in the past to alleviate
resulting trustworthiness concerns.
Overall, the record evidence leaves me with substantial doubts as to Applicant’s
eligibility and suitability for a public trust position. For all these reasons, I conclude
Applicant did not mitigate the trustworthiness concerns arising from her financial
considerations and criminal conduct. 
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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
Subparagraph 1.a.: For Applicant
Subparagraph 1.b.: Against Applicant
Subparagraph 1.c.: Against Applicant
Subparagraph 1.d.: Against Applicant
Subparagraph 1.e.: Against Applicant
Subparagraph 1.f.: Against Applicant
Subparagraph 1.g.: Against Applicant
Subparagraph 1.h.: Against Applicant
Subparagraph 1.i.: Against Applicant
Subparagraph 1.j.: Against Applicant
Subparagraph 1.k.: Against Applicant
Subparagraph 1.l.: Against Applicant
Subparagraph 1.m.: Against Applicant
Subparagraph 1.n.: Against Applicant
Subparagraph 1.o.: Against Applicant
Subparagraph 1.p.: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a.: Against Applicant
Subparagraph 2.b.: Against Applicant
Subparagraph 2.c.: Against Applicant
Subparagraph 2.d.: Against Applicant
Subparagraph 2.e.: Against Applicant
Subparagraph 2.f.: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the interests of national security to grant Applicant eligibility for a
public trust position. Eligibility for access to sensitive information is denied.
DAVID M. WHITE
Administrative Judge