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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 09-01444
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Esquire, Department Counsel
For Applicant: Pro se
May 18, 2010
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Decision
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MOGUL, Martin H., Administrative Judge:
On August 20, 2009, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) detailing the security concerns under Guidelines F and
E for Applicant. 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); and the 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 September 9, 2009, Applicant replied to the SOR (RSOR) in writing, and he
requested a hearing before an Administrative Judge. The case was assigned to this
Administrative Judge on October 15, 2009. DOHA issued a notice of hearing on
October 23, 2009, and I convened the hearing as scheduled on December 8, 2009, in
Las Vegas, Nevada. The Government offered Exhibits 1 through 12, which were
received without objection. Applicant testified on his own behalf and submitted Exhibits
A through U at the time of hearing, which were also admitted without objection. I
granted Applicant’s request to keep the record open until December 22, 2009, to submit
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additional documents. He timely submitted nine additional documents, which have been
identified and entered into evidence collectively, without objection, as Exhibit V. On
December 18, 2009, Applicant requested an additional extension to submit additional
documents. He timely submitted three more documents, which have been identified and
entered into evidence collectively, without objection, as Exhibit W. DOHA received the
transcript of the hearing (Tr) on December 23, 2009. Based upon a review of the case
file, pleadings, exhibits, and the testimony of Applicant, eligibility for access to classified
information is granted.
Findings of Fact
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant, and upon
due consideration of that evidence, I make the following findings of fact: 
Applicant is 47 years old. He is married, but he and his wife separated in
November 2006, and they are in the process of getting divorced. (Tr at 53.) They have
one daughter. Applicant served for 27 years in the United States Air Force, and he
retired with an Honorable Discharge. Applicant is employed by a defense contractor,
and he seeks a DoD security clearance in connection with his employment in the
defense sector.
Guideline F, Financial Considerations
The SOR lists 3 allegations (1.a. through 1.c.) regarding financial difficulties
under Adjudicative Guideline F.  The allegations will be discussed below in the same
order as they were listed on the SOR:
1.a. This overdue debt is cited in the SOR in the amount of $9,696. Applicant
testified that this debt was for a credit card of his wife. He was not aware of this debt
until November 2009, and he thereafter paid off this debt. (Tr at 49-50.) Exhibit W
includes a letter from the creditor of this debt, dated December 29, 2009, indicating that
Applicant settled this debt in the amount of $5,850. 
1.b. This overdue debt is cited in the SOR in the amount of $3,342. Applicant
testified that this debt was incurred from an account of his wife. When she did not make
payments, the case was taken to court, and a judgement was issued. Applicant’s wife is
now being garnished in the amount of $85 a month to resolve this debt. (Tr at 50-53.) A
letter from Applicant’s wife confirms that she is being held solely responsible by the
creditor to resolve this debt, and the creditor is not pursuing the Applicant. (Exhibit M.)   
1.c. This overdue debt is cited in the SOR in the amount of $25,708. Applicant
testified that this is an account that he used to pay off some of his other debts. At the
time of the hearing, he had been paying $100 a month from March through November
2009 to pay off this debt. He plans to continue making these payments until the debt is
resolved, and he stated that the creditor is satisfied to continue collecting his payments
until the debt is paid in full. (Tr at 53-54.)
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Applicant explained that when he was deployed, his wife engaged the services of
a law firm that served as a debt consolidation company (DCC), to try to reduce their
debt when she lost her job. Applicant and his wife paid this dcc approximately $15,000
or $16,000 over the period from October 2007 through November 2008. (Exhibit 7.) He
testified that this DCC was ultimately terminated by the Supreme Court of Florida for
business practices that were detrimental to consumers. Applicant has since received a
refund from the court of $9,000, which has been used to resolve another debt, not listed
on the SOR. (Tr at 54-60.)
Applicant testified that he is still waiting for an additional $4,600 to be refunded to
him, and he is planning to use that to reduce the debt that is listed as 1.c. The creditor
has indicated that they would accept an additional $10,414 to settle this debt, and when
Applicant’s receives the $4,600, it is his plan to add $1,000 with that $4,600 for an initial
payment of $5,700 and follow up with $1,000 a month for four months, and finally pay
the remainder after that. The goal is to resolve the debt by June of 2010. (Tr at 60-62.)
During cross examination, Applicant conceded that he was not certain how much
additional money he would recover from the court. (Tr at 85-86.)
Applicant testified that when he was deployed, off and on from February 2007
until May 2008, he gave his wife his power of attorney. During that period, she
refinanced the loan for his automobile, taking out $10,000 in cash, and raising his
monthly payments for the car loan from $450 a month to $600 a month. She also lost
her job in March 2007, and she was unemployed for three months.
Applicant testified that his wife incurred additional debts without his knowledge,
which were not listed on the SOR. As he became aware of these debts he has resolved
these as well. (Tr at 72-73.) 
Paragraph 2 Guideline E, Personal Conduct
2.a. Applicant executed a signed Security Clearance Application (SCA) on July
28, 2008. (Exhibit 1.) The SOR incorrectly alleges that Question 28.b. of the SCA asks,
“In the last 7 years, have you been over 90 days delinquent on any debt(s)?”  Question
28.a. actually asks, “In the last 7 years, have you been over 180 days delinquent on any
debt(s)?” Question 28.b. of the SCA actually asks, “Are you currently over 90 days
delinquent on any debt(s)?” Applicant answered “No” to questions 28. a. and b., and he
listed no debts. 
It is further alleged in the SOR that Applicant “failed to disclose that [he] was over
90 days delinquent on debts listed above in sub-paragraphs 1(a) and 1(b) above.”
Applicant testified that he had already been signed up with the dcc for approximately six
to eight months by the time he completed the SCA, and he believed the DCC was
paying his bills. He stated that he also explained to the investigator for the clearance
that his debts were being resolved by the DCC. When he learned that the DCC was
having trouble, he contacted the investigator, and told him that he was not sure what the
status of his debts was. He credibly reiterated that he never intended to mislead the
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Government, he simply believed the DCC was doing what he was paying them to do,
which was pay off his debts. (Tr at 66-70, 108.)
Mitigation
Applicant testified, and the evidence has established, that of the five overdue
debts that, unbeknownst to Applicant, were not paid by Applicant’s wife, he has now
resolved three of them. He is in the process of resolving one of the last two overdue
debts, with his wife paying off the other debt. (Tr at 119-121.)
Applicant prepared a Personal Financial Statement on April 15, 2009 (Exhibit 9),
which shows that he has a net monthly remainder of approximately $1,395, part of
which he plans to use to resolve the overdue debts, and stay current on his more recent
debts. In his post hearing submissions (Exhibit W), Applicant indicated that he planned
to start paying $200 a month on the debt listed as 1.b., even though it was the
judgement incurred by his wife. He also planned to increase the payments on the debt
listed as 1.c., from $100 a month to $200 a month.  
Finally, Applicant submitted six extremely positive character letters in Exhibits V
and W, from individuals who have known Applicant in his employment capacity. He was
described by his current supervisor as a “stellar employee . . . a person of integrity,
good fiscal responsibility, trustworthy and a loyal security sentry.” His supervisor also
stated that he spoke with Applicant’s  prior co-workers and supervisors before hiring him
and “each one stated that in addition to his technical competence and work ethic he was
a person of good conduct and character, very loyal to the United States.”  A co-worker
and associate for the last 10 years, and a retired Master Sergeant for the United States
Air Force, described Applicant as “an intelligent, capable, and personable maintainer.
He is trustworthy and with out [sic] question; a great American.”
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 over-arching
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.
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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
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 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 EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline F, Financial Considerations
The security 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 classified 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 security concerns and
could potentially apply in this case.  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. I find that both of these
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disqualifying conditions apply to Applicant in this case. The evidence has established
that Applicant accumulated three significant delinquent debts. 
AG ¶ 20 provides conditions that could mitigate security concerns from financial
difficulties: 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.” As noted
above, Applicant’s financial problems resulted in part from the failure of the debt
consolidation company to resolve or even pay down Applicant’s debts, despite his
paying the company approximately $15,000. Additionally, his wife’s unemployment
contributed to their financial problems. Finally, unbeknownst to Applicant at the time, his
wife failed to pay their bills for periods of time, including when he was deployed. 
I find that Applicant has acted responsibly since these debts were incurred.  First,
he engaged the services and paid a substantial fee to a debt consolidation company.
Additionally, Applicant has paid off two of his overdue debts, one that was on the SOR
(1.a.) and one that had been resolved before the SOR was issued. He also is making
payments on the debt listed above as 1.c. Finally, even though debt 1.b. is being
resolved by his wife, from whom he is separated, as per the judgement, he indicated in
his post hearing submission that he is attempting to help his wife resolve this debt as
well. (Exhibit V.) Therefore, I find that this mitigating condition is a factor for
consideration in this case. 
I also find that AG ¶  20 (d) is applicable since Applicant has “initiated a good-
faith effort to repay overdue creditors or otherwise resolve debts.” 
Applicant is current on all of his recent debts Therefore, I conclude that Applicant
has mitigated the financial concerns of the Government.
Guideline E, Personal Conduct
With respect to Guideline E, I find that Applicant testified credibly that he did not
knowingly provide incorrect material information to the Government on the SCA
regarding his overdue debts. Applicant had engaged the services of a company to
resolve his debts, and he had paid them approximately $15,000. He had a good faith
belief that all of his debts were being resolved in a timely manner. Additionally, at the
time he completed the SCA, he was not aware that his wife had not been paying the
debts and had incurred additional debts. 
I do not find that any disqualifying condition applies under this guideline.  I
therefore, resolve Guideline E for Applicant.
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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.
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.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why the Mitigating Conditions apply, together with the very strong
recommendations on his behalf, I find that the record evidence leaves me with no
significant questions or doubts as to Applicant’s eligibility and suitability for a security
clearance under the whole-person concept. For all these reasons, I conclude Applicant
has  mitigated the security concerns. 
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
Subparagraphs 1.a.- 1.c.: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a..: For Applicant
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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 security
clearance.  Eligibility for access to classified information is granted.
                                              
Martin H. Mogul
Administrative Judge