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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 09-02305
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Esquire, Department Counsel
For Applicant: Pro se
August 24, 2010
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Decision
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MOGUL, Martin H., Administrative Judge:
On July 14, 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 21, 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 21, 2009. DOHA issued a notice of hearing on
October 23, 2009, and I convened the hearing as scheduled on December 9, 2009. The
Government offered Exhibits 1 through 8, which were received without objection.
Applicant testified on his own behalf and submitted Exhibits A through D at the time of
hearing, which were also admitted without objection. I granted Applicant’s request to
keep the record open until December 16, 2009, to submit additional documents. He
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timely submitted 14 additional documents, which have been identified collectively, as
Exhibit E. Department Counsel objected to these documents because they were
received one day beyond the date that the record was left open. While they were
received one day after the cut off date, in order to establish a complete record, that
objection is overruled. Department Counsel also objects that some of the documents
are not signed. I will allow the documents to be entered into evidence, but I will consider
what weight to give them if they are not signed. Applicant also submitted one additional
document past the due date with the same objection by Department Counsel. The
objection is overruled, and this document has been identified and entered into evidence
as Exhibit F. DOHA received the transcript of the hearing (Tr) on January 4, 2010.
Based upon a review of the case file, pleadings, exhibits, and the testimony of
Applicant, eligibility for access to classified information is denied.
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 57 years old. He was married from 1978 to 2004, when his wife died.
He has two children. He served in the United States Navy from 1972 to 1976 and
received an Honorable Discharge (Exhibit E.) 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 17 allegations (1.a. through 1.q.) regarding financial difficulties
under Adjudicative Guideline F. All of the debts were established by Government
Exhibits 3 through 8.  The allegations will be discussed below in the same order as they
were listed on the SOR:
1.a. The SOR alleges that in December 2004, Applicant filed a Chapter 13
bankruptcy in United States Bankruptcy Court, but this bankruptcy was later dismissed.
At the hearing, Applicant testified that, unbeknownst to him, his wife filed bankruptcy
regarding a trucking company that was incorporated only in her name.  When he
learned of the bankruptcy, he appeared in court and moved to dismiss the bankruptcy.
(Tr at 43.)
1.b. The SOR alleges that in May 2005, a tax lien was filed against Applicant in
the amount of $10,993, which has not been paid. Exhibit A establishes that tax liens for
SOR 1.b., 1.c., and 1.d., are still due and owing by Applicant. Applicant testified that this
tax lien arose out of the corporation created by his late-wife, and he contends that, since
his name was not associated with the corporation, he is not liable for this tax lien. He
plans to dispute this with the state tax board. (Tr at 55.) While Applicant submitted some
documents from the state tax board (Exhibit E), I do not find that they establish any of
the tax liens, listed as 1.b., 1.c., or 1.d., have been released. 
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1.c. The SOR alleges that in November 2002, a tax lien was filed against
Applicant in the amount of $3,319, which has not been paid. Applicant also contends
that he is not liable for this tax lien. (Tr at 55.) For the reasons stated in 1.a., above, I do
not find that this tax lien has been released. 
1.d. The SOR alleges that in May 2002, a tax lien was filed against Applicant in
the amount of $12,479, which has not been paid. Applicant also contends that he is not
liable for this tax lien. (Tr at 55.) For the reasons stated in 1.a., above, I do not find that
this tax lien has been released. 
1.e. This overdue debt is cited in the SOR in the amount of $3,567. Applicant
testified that this debt was incurred by his late wife and he was unaware of this debt and
the subsequent debts, listed as 1.f through 1.q., until he received notification from a
credit report, during the security clearance application process. He has engaged the
services of a law firm to help him resolve these debts, but at this point it is still due and
owing. (Tr at 56-58.)
1.f. This overdue debt is cited in the SOR in the amount of $12,000. Applicant
testified that this debt is still unpaid. (Tr at 59.)
1.g. This overdue debt is cited in the SOR in the amount of $1,000, with an
approximate balance of $45,000. Applicant testified that this debt was resolved when he
sold his house with a quitclaim deed. (Tr at 59-60.) No evidence was offered to
establish that this debt has been resolved.
1.h. This overdue debt is cited in the SOR in the amount of $3,000, with an
approximate balance of $110,000. Applicant testified that he was unaware of the
origination of this debt, but it is still unpaid. (Tr at 61-62.)
1.i. This overdue debt is cited in the SOR in the amount of $29,000. Applicant
testified that he was unaware of the origination of this debt, but it is still unpaid. (Tr at
62.)
1.j. This overdue debt is cited in the SOR in the amount of $7,846. Applicant
testified that he was unaware of the origination of this debt, but it is still unpaid. (Tr at
62.)
1.k. This overdue debt is cited in the SOR in the amount of $2,828 for another tax
lien. Applicant testified that this tax lien has not been released. (Tr at 63.)
1.l. This overdue debt is cited in the SOR in the amount of $30,319 for a federal
tax lien. Applicant testified that this tax lien has not been released. (Tr at 63.). 
1.m. This overdue debt is cited in the SOR in the amount of $292. Applicant
testified that he was unaware of the origination of this debt, but it is still unpaid. (Tr at
64.)
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1.n. This overdue debt is cited in the SOR in the amount of $36,99400. It was
amended at the hearing to accurately reflect $36,994. Applicant testified that he was
unaware of the origination of this debt, but it is still unpaid. (Tr at 64-65.)
1.o. This overdue debt is cited in the SOR in the amount of $3,378. Applicant
testified that he was unaware of the origination of this debt, but it is still unpaid. (Tr at
66-67.)
1.p. This overdue debt is cited in the SOR in the amount of $1,445. Applicant
testified that he was unaware of the origination of this debt, but it is still unpaid. (Tr at
67.)
1.q. This overdue debt is cited in the SOR in the amount of $1,072. Applicant
testified that he was unaware of the origination of this debt, but it is still unpaid. (Tr at
67-68.)
Paragraph 2 Guideline E, Personal Conduct
Applicant executed a Security Clearance Application (SCA) on December 2,
2008. (Exhibit 1.) The SOR alleges that Applicant failed to provide truthful and candid
answerers to several of the questions. They will be reviewed in the same order as they
were addressed in the SOR:
2.a. Question 27 a. of the SCA asks, “In the last 7 years, have you filed a petition
under any chapter of the bankruptcy code (to include Chapter 13)?” Applicant answered
“No” to this question. It is alleged in the SOR that he should have included the
bankruptcy discussed in 1.a., above.  At the hearing, Applicant testified that he had
never filed a petition for bankruptcy, but as reviewed above, it is his contention that his
late wife did file a petition for bankruptcy and he filed to dismiss the bankruptcy. (Tr at
70-71.) Since Exhibit 7, which is part of the petition for bankruptcy, has Applicant’s
signature, it appears that Applicant was involved in the initial bankruptcy when it was
filed.  
2.b. SOR allegations 2.b, 2.c., 2.d., and 2.e. all concern question 27c. of the
SCA, which asks, “In the last 7 years, have you had a lien placed against your property
for failing to pay taxes or other debts?” Applicant answered “No” to this question. It is
alleged in the SOR that he should have included the tax lien discussed in 1.b., above.
At the hearing, Applicant testified that he was not aware of any of the tax liens when he
complected the SCA, and he only became aware when he first saw his credit reports
during his interview with a Government investigator. (Tr at 70-72.)
2.c. It is alleged in the SOR that Applicant also should have included the tax lien
discussed in 1.c., above, in response to question 27c. Again, Applicant testified that he
was not aware of any of the tax liens when he complected the SCA. (Tr at 70-72.)
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2.d. It is alleged in the SOR that Applicant also should have included the tax lien
discussed in 1.d., above, in response to question 27c. As discussed above, Applicant
testified that he was not aware of any of the tax liens when he complected the SCA. (Tr
at 70-72.)
2.e. It is alleged in the SOR that Applicant also should have included the tax lien
discussed in 1.k., above, in response to question 27c. As discussed above, Applicant
testified that he was not aware of any of the tax liens when he complected the SCA. (Tr
at 70-72.)
2.f. Question 28a. of the SCA asks, “In the last 7 years, have you been over 180
days delinquent on any debt(s)?”  Applicant answered “No” and he listed no debts. It is
alleged in the SOR that Applicant also should have included all of the debts listed on
paragraph 1 of the SOR. Applicant testified that he was not aware of any of any of the
overdue debts when he completed the SCA, as his wife always paid the bills, and she
never informed him of the overdue debts. He contended that if he had been aware of
the overdue debts he would have included them on his SCA. (Tr at 72-73.) On cross
examination by Department Counsel, Applicant conceded that when he became aware
of the bankruptcy, he also learned of his overdue debts, so he should have included the
debts on the SCA. (Tr at 81-84.)
Mitigation
Applicant submitted several positive character letters in Exhibits A through C, E
and F, from individuals who have known Applicant in his employment and personal
capacity and wrote in positive terms about him. One letter was from a woman who was
identified as his sister-in-law. She confirmed that Applicant’s late wife did not always
reveal their financial situation to him. 
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 many 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 Applicant’s late
wife to pay or resolve the accumulated debts or make him aware of them. 
However, I do not find that Applicant has acted responsibly since he became
aware of these debts in 2005, when he first attempted to have the bankruptcy
dismissed. Since that time, I do not find that any of his overdue debts have been
resolved. Therefore, I find that this mitigating condition is a not factor for consideration
in this case. 
AG ¶  20(d) is also not applicable since Applicant has not “initiated a good-faith
effort to repay overdue creditors or otherwise resolve debts.”  I conclude that Applicant
has not mitigated the financial concerns of the Government.
Guideline E, Personal Conduct
With respect to Guideline E, I find that because Applicant learned of his overdue
debts and his financial difficulties, when he moved to dismiss the bankruptcy in 2005,
Applicant should have included these overdue debts and liens, when he completed his
SCA. Because of his lack of honesty and candor regarding very clearly written
questions, I find that Applicant did intend to mislead the Government.
The Government relies heavily on the honesty and integrity of individuals seeking
access to our nation’s secrets. If such an individual intentionally falsifies material facts, it
is extremely difficult to conclude that he nevertheless possesses the judgment, and
honesty necessary for an individual given a clearance.
In reviewing the disqualifying conditions under Guideline E, I conclude that
because of Applicant’s “deliberate omission, concealment, or falsification of relevant
facts from any personnel security questionnaire” that ¶ 16(a) applies against Applicant. I
find no mitigating conditions can be applied. I therefore, resolve Guideline E against
Applicant.
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): 
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(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 disqualifying conditions apply and the mitigating conditions do not
apply, I find that the record evidence leaves me with significant questions and 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 not 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: AGAINST APPLICANT
Subparagraphs 1.a.- 1.q.: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraphs 2.a.-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 national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
Martin H. Mogul
Administrative Judge