DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ADP Case No. 09-02543 
  ) 
 ) 
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: Alison O’Connell, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
ANTHONY, Joan Caton, Administrative Judge: 
 
I have carefully reviewed the administrative file, pleadings, and exhibits in this 
case and conclude that Applicant failed to mitigate security concerns under the 
Financial Considerations adjudicative guideline. Eligibility for access to sensitive 
information is denied. 
 
Applicant submitted his Questionnaire for Public Trust Positions (SF 85P) on May 
14, 2008. On December 4, 2009, the Defense Office of Hearings and Appeals (DOHA) 
issued Applicant a Statement of Reasons (SOR) alleging trustworthiness concerns 
under Guideline F, Financial Considerations. 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); 
Department of Defense (DoD) Regulation 5200.2-R, Personnel Security Program, dated 
January 1987, as amended (Regulation); and the adjudicative guidelines (AG) effective 
within the Department of Defense for SORs issued after September 1, 2006.  
 
 On January 8, 2010, Applicant answered the SOR in writing. On July 22, 2010, 
he requested that his case be determined on the record in lieu of a hearing. The 
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Government compiled its File of Relevant Material (FORM) on August 31, 2010. The 
FORM contained documents identified as Items 1 through 10. By letter dated 
September 2, 2010, a copy of the FORM was forwarded to Applicant, with instructions 
to submit any additional information and/or objections within 30 days of receipt. 
Applicant received the file on September 27, 2010. His response to the FORM was due 
on October 27, 2010. He did not file any additional information or objections within the 
required time period. The case was assigned to me for a decision on November 9, 
2010. 
  
Findings of Fact 
 
 The SOR is comprised of 21 allegations that raise trustworthiness concerns 
under AG F, Financial Considerations. The 21 alleged financial delinquencies total 
approximately $169,130. (Item 1.) 
 
 Applicant is 38 years old, never married, and employed by a government 
contractor as an analyst. He has been steadily employed for the past five years. He lists 
no dependents on his SF 85P, but the record reflects that he pays child support. 
Applicant seeks eligibility for access to sensitive information for the first time. (Item 5.) 
 
 In his Answer to the SOR, Applicant admitted four of the delinquent debts (SOR 
¶¶ 1.c., 1.h., 1.r., and 1.s.), which totaled approximately $92,370. One of the four 
delinquent debts that Applicant admitted was a $25,152 tax lien entered against him in 
October 2007 by the Internal Revenue Service (IRS) (SOR ¶ 1.c.). Applicant denied the 
17 remaining debts (SOR ¶¶ 1.a., 1.b., 1.d., 1.e., 1.f., 1.g., 1.i., 1.j., 1.k., 1.l., 1.m., 1.n., 
1.o., 1.p., 1.q., 1.t., and 1.u.). Included in Applicant’s denials was a state tax lien entered 
against him in 2002 for $761 (SOR ¶ 1.a.) and a federal tax lien entered against him in 
2007 for $57,612 (SOR ¶ 1.b.).1 The state tax lien, the two federal tax liens, and all 
other delinquent debts alleged on the SOR appear on Applicant’s credit reports of 
August 31, 2010, April 21, 2009, November 13, 2008, and May 30, 2008. (Item 4; Item 
7; Item 8; Item 9; Item 10.) 
 
 When Applicant completed his SF 85P in May 2008, he answered “No” to 
Question 19, which asked if he had been subject to a tax lien in the last seven years. He 
answered “Yes” when asked if, in the last seven years, he had been over 180 days 
delinquent on any debt. He then listed two student loan debts he incurred in 2005 and 
2006. (Item 5 at 5.) 
 
 Applicant was interviewed by an Office of Personnel Management (OPM) 
investigator about his finances on January 10, 2009. The investigator asked Applicant 
about accounts that were delinquent or in collection status and identified on his credit 
report. In the interview, Applicant did not recognize delinquent accounts which were 
later identified on the SOR at ¶¶ 1.d., 1.i., 1.k., 1.l., 1.o., 1.t., and 1.u. He told the 
investigator that if those debts were his, he did not want to recognize them because he 
1 In his personal subject interview, Applicant opined that the $57,612 federal tax lien represented his 
consolidated student loan indebtedness. However, he failed to provide documentation establishing a link 
between the two debts. (Item 6 at 3-4.) 
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feared that if they were valid and over seven years old, the creditors would attempt to 
collect the delinquent debts from him. He further stated that he would prefer to let the 
accounts “drop off” his credit report, and he did not intend to contact these creditors to 
determine if the debts were valid.2 As of the date of the SOR, the debts remained 
unpaid. In his Answer to the SOR, Applicant denied the debts, along with five additional 
consumer debts identified at SOR ¶¶ 1.g., 1.m., 1.n., 1.p., and 1.q.  (Item 4; Item 6 at 3.) 
 
 In his interview with the OPM investigator, Applicant reported that he attended 
college from 1990 to 1996 but did not earn a degree. He stated that he twice entered 
into agreements to pay his student loan accounts but stopped payments during periods 
of unemployment. He did not resume payments after gaining employment, and the 
student loan debts remain unresolved. Applicant told the investigator that he intended at 
some time to take a second job so that he could pay his student loan accounts. In his 
Answer to the SOR, Applicant admitted that he was 120 days or more past due on a 
student loan account of approximately $66,430. This debt appears as a collection 
account on Applicant’s credit reports of August 31, 2010 and April 21, 2009. (Item 4; 
Item 6 at 3-4; Item 7; Item 8.)  
 
 In his Answer to the SOR, Applicant denied medical debts alleged at SOR ¶¶  
1.e. and 1.f. These debts appear on Applicant’s credit reports of August 31, 2010 and 
April 21, 2009. In his interview with the OPM investigator, Applicant admitted that he 
incurred the $496 debt alleged at SOR ¶ 1.f. when he had his tonsils removed in 2007. 
He told the investigator he would contact the creditor and pay the debt in full. Nothing in 
the record establishes that the debt has been resolved. (Item 4; Item 6 at 4; Item 7; Item 
8.)  
 
 In his interview with the OPM investigator, Applicant admitted a $415 debt 
alleged at SOR ¶ 1.r. and a $374 debt alleged at SOR ¶ 1.s. He stated that the debts 
arose in 2003 or 2004 when he overdrew his checking account during a period of 
unemployment. He stated that he intended to contact the creditor at some unspecified 
future date to arrange payment. In his Answer to the SOR, Applicant admitted the debts. 
Nothing in the record establishes that the debts have been satisfied. (Item 4; Item 6 at 
4.) 
 
 In his interview with the OPM investigator, Applicant admitted that he owed a 
$2,700 delinquent debt to a company for software support. He stated that he stopped 
paying on the account in 2008 when he became dissatisfied with the company’s service. 
He also told the investigator he had contacted the creditor and intended to work out a 
payment agreement. In his Answer to the SOR, Applicant denied the debt, which is 
alleged at SOR ¶ 1.j. Nothing in the record establishes that the debt has been satisfied. 
(Item 4; Item 6 at 4.) 
 
2 On July 22, 2009, in response to DOHA interrogatories, Applicant signed a statement affirming that he 
had read the summary of the interview and found it to be true and correct. He made no changes, 
corrections, or revisions to the investigator’s summaries. (Item 6 at 6-7.) 
 
 
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 Applicant failed to provide documentation to establish that he had paid or had 
payment plans in place for the four delinquent debts he admitted. Additionally, he 
provided no documentation to establish that he was not responsible for the 17 
delinquent debts he denied. He failed to provide documentation to establish that any of 
the 21 debts alleged on the SOR had been paid or otherwise satisfied. Nothing in the 
record suggests that Applicant has received financial credit counseling. (Item 6.)  
Burden of Proof 
 The Government has the initial burden of proving controverted facts alleged in 
the SOR. To meet its burden, the Government must establish by substantial evidence a 
prima facie case that it is not clearly consistent with the national interest for an applicant 
to have access to classified information. The responsibility then shifts to the applicant to 
refute, extenuate or mitigate the Government's case. Because no one has a right to a 
security clearance, the applicant carries a heavy burden of persuasion. The "clearly 
consistent with the national interest" standard compels resolution of any reasonable 
doubt about an applicant's suitability for access to sensitive information in favor of 
protecting national security. 
   
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. 
The guidelines are not inflexible rules of law. Instead, recognizing the complexities of 
human behavior, the administrative judge must apply the guidelines 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 
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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 in seeking to obtain 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.  
 
AG ¶19 provides two financial considerations disqualifying conditions that could 
raise security concerns and may be disqualifying in this case. 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 trustworthiness 
concerns. In ISCR Case No. 08-12184 at 7 (App. Bd. Jan.7, 2010), the Appeal Board 
explained: 
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It is well-settled that adverse information from a credit report can normally 
meet the substantial evidence standard and the government’s obligations 
under [Directive] ¶ E3.1.14 for pertinent allegations. At that point, the 
burden shifts to applicant to establish either that [he or] she is not 
responsible for the debt or that matters in mitigation apply. 
 
(internal citation omitted.) Applicant’s history of delinquent debt is documented in his 
credit reports, his SF 85P, his interview with the OPM investigator, and his SOR 
response. Since about 2003, Applicant accumulated considerable delinquent debt and 
was unable to pay or satisfy his financial obligations. The evidence is sufficient to raise 
financial considerations disqualifying conditions identified at AG ¶¶ 19(a) and 19(c). 
 
The guideline also includes examples of conditions that could mitigate 
trustworthiness concerns arising from financial difficulties. Under AG ¶ 20(a), the 
disqualifying condition 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 trustworthiness, or good judgment.@ 
Applicant=s financial delinquencies began in approximately 2003, and they have 
continued to the present. He has not resolved his financial delinquencies, and they are 
likely to recur. Applicant’s failure to satisfy his delinquent debts over a period of at least 
seven years casts doubt on his current reliability, trustworthiness, and good judgment.  
Accordingly, I conclude that AG ¶20(a) does not apply to the facts of Applicant’s case.  
 
Under AG & 20(b), mitigation can occur 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.@ Applicant reported that 
he did not pay his student loans on two occasions when he experienced unemployment. 
However, he also acknowledged that when he regained employment, he did not resume 
paying his student loans. Applicant has been steadily employed for the past five years, 
and yet he appears to have made no effort the resolve his student loans and his many 
other financial delinquencies. He offered no explanation for his failure to resolve or 
settle his financial delinquencies even when he was employed. I conclude that he failed 
to act responsibly in identifying and resolving his substantial debts. I find that AG ¶ 
20(b) does not apply to the facts of Applicant’s case.  
 
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). Similarly, AG & 20(d) applies where the 
evidence shows Athe individual initiated a good-faith effort to repay overdue creditors or 
otherwise resolve debts.@ Nothing in the record establishes that Applicant has received 
financial counseling or that he has otherwise taken positive action to resolve his 
financial problems. Moreover, nothing in the record establishes that he has made good-
faith efforts to resolve his delinquent debts. Accordingly, I conclude that AG ¶¶ 20(c) 
and 20(d) do not apply to the facts of Applicant’s case.  AG ¶¶ 20 (e) and 20 (f) are not 
raised by the facts of this case.  
 
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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 relevant 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 facts and circumstances surrounding this case. Applicant is a mature adult. His 
financial delinquencies occurred repeatedly over a period of seven years or more, 
suggesting lack of interest or inability to learn to manage his financial commitments 
responsibly. During his interview with the OPM investigator, he stated that he intended 
to pay some of his delinquent debts at some unspecified future date. In determining an 
individual's security worthiness, the Government cannot rely on the possibility that an 
applicant might resolve his or her outstanding debts at some future date. ISCR Case 
No. 98-0614 at 5 (App. Bd. Jul. 12, 1999).  
 
Applicant also said he did not want to contact his creditors to determine the 
validity of his delinquent debts because he did not want the creditors to seek payment 
from him even if the debts had been delinquent for seven years or more. He indicated 
he preferred to say nothing and to let the delinquent debts “drop off” his credit report.   
 
DOHA’s Appeal Board has noted that “a strategy of merely waiting out creditors 
is not an adequate substitute for serious and reasonable efforts to pay off debts.” 
Moreover, it is well settled that failure to discharge debts over a period of time 
constitutes a continuing course of conduct that raises concerns about an applicant’s 
reliability and trustworthiness. ISCR Case No 07-10575at 4 (App. Bd. Jul. 3, 2008).    
 
Applicant has been steadily employed for over five years. He provided no 
documentation to show that he had paid or had payment plans in place to satisfy his 
delinquent debts. He failed to demonstrate that his financial problems will not continue 
to be a trustworthiness concern in the future. 
 
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Overall, the record evidence leaves me with questions and doubts as to 
Applicant’s eligibility and suitability for a public trust position. For all these reasons, I 
conclude Applicant failed to mitigate the trustworthiness concerns arising from his 
financial delinquencies.  
 
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. – 1.u.: Against Applicant 
 
                                                 Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a public trust 
position. Eligibility for access to sensitive information is denied. 
 
                                                     
___________________________________ 
Joan Caton Anthony 
Administrative Judge