1
                                                             
                           
                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ADP Case No. 09-04861
)
)
Applicant for Public Trust Position )
Appearances
For Government: Nichole Noel, Esquire, Department Counsel
For Applicant: Pro se
                                                                            
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the case file, pleadings, exhibits, and testimony,
Applicant’s eligibility for access to sensitive information is granted.
Applicant submitted her Questionnaire for Public Trust Position (SF 85P) on
January 15, 2008. On May 5, 2010, the Defense Office of Hearings and Appeals
(DOHA) issued Applicant a Statement of Reasons (SOR) detailing the trustworthiness
concerns under Guideline F (Financial Considerations) and Guideline E (Personal
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); and the revised adjudicative guidelines (AG)
effective in the Department of Defense on September 1, 2006. 
Applicant acknowledged receipt of the SOR on May 13, 2010. She answered the
SOR in writing on May 20, 2010, and requested a hearing before an Administrative
Judge. DOHA received the request on May 17, 2010. Applicant submitted a second
answer to the SOR on June 16, 2010, which DOHA received on June 24, 2010.
GE 1; AE C; AE G; AE M; Tr. 25.1
GE 1; GE 2.2
AE A; Tr. 20, 38.3
2
Department Counsel was prepared to proceed on September 28, 2010, and I received
the case assignment on October 4, 2010. DOHA issued a notice of hearing on October
26, 2010, and I convened the hearing as scheduled on November 16, 2010. The
government offered Exhibits (GE) 1 through 7, which were received without objection.
Applicant testified and submitted Exhibits (AE) A through D, without objection. DOHA
received the transcript of the hearing (Tr.) on November 28, 2010. 
I held the record open until December 16, 2010, for Applicant to submit
additional matters. Applicant requested an extension of time to submit the requested
information. Department Counsel did not object. On December 9, 2010, I issued an
order extending the time for Applicant to submitted additional evidence until December
31, 2010. She timely submitted AE E through AE N, without objection. The record
closed on December 31, 2010.
Findings of Fact
In her Answers to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a-
1.d, 1.f-1k, and 1.m of the SOR, with explanations. She denied the factual allegations in
¶¶ 1.e, 1.l and 2.a of the SOR. She also provided additional information to support her
request for eligibility for a public trust position.
  Applicant, who is 38 years old, works as a dispatcher in customer support for a
Department of Defense contractor in a position of public trust. She began this position
in December 2007. A co-worker describes her as a loyal and dependable hard worker.
Applicant has impeccable communications skills. She received a “meets expectation”
on her most recent performance evaluation. She also works part-time in the retail
industry.1
Applicant graduated from college in 1995 with a bachelor of science degree in
business administration and earned a master’s degree in business administration in
2003. She paid for her undergraduate education with student loans. She paid her loan
payments monthly for a period of time. She stopped her payments when her income
became insufficient to pay her loans and living expenses.2
Applicant married in 2003. Her husband worked in the building industry. Since
the economic downturn, his work has been sporadic. He receives approximately $900 a
month in unemployment benefits, of which $485 a month is applied to his child support
payments from an earlier relationship. Applicant’s two 17-year-old stepsons are living
with her.3
AE L; Tr. 26.4
GE 2; Tr. 24-25. 5
AE I; AE J; AE K; Tr.  50.6
3
After college, Applicant worked at various hourly wage jobs until 1999 when she
obtained better paying employment in the communications industry. She worked with
this company until 2007. When she was working with the communications company,
the State garnished Applicant’s pay to recover her $3,000 state education loan debt in
2000. This loan was paid in full in 2002 and is not listed in the SOR.4
In July 2010, Applicant and her husband contacted a law firm to discuss how to
improve their financial situation. They discussed filing a Chapter 13 bankruptcy. At the
same time, she and her husband attended a financial counseling program. Through this
program, Applicant learned about debt to income ratios, how to plan her finances, her
misuse of money in the past, and poor decisions about money. She decided that she
wanted to be financially independent and to achieve this goal, she must improve her
finances and money management. She developed a budget, which she follows. She
has not incurred significant unpaid debts since 2007. She has no credit cards and her
car loan is paid.
 
Applicant’s education loans are problematic. She does not deny that she owes
money on her education loans. However, she believes that she paid $300 each
paycheck on her education loans while working at her communications job and that this
money was not properly applied to her loan account. On her behalf, the bankruptcy law
firm requested a copy of her earnings statement from her employer in the
communications industry. The law firm is working to resolve the education loan
payment issues.5
Applicant filed her income taxes each year. Her 2007 federal tax return reflected
that she was to receive a $450 refund. Her 2007 state tax return indicated that she was
to receive a $2,450 refund. Applicant’s 2009 federal tax return showed that she was
entitled to a $1,229 refund and that this money was transferred to an unnamed
account. It was not refunded to her. For the last eight or nine years, Applicant has not
received her tax refunds, as the Government seized her refund to apply to her
education loan debt. The application of these diverted payments to her debt is an issue
the law firm was attempting to resolve.6
Applicant and her husband filed a Chapter 13 bankruptcy petition on September
3, 2010. They made a $394 payment to the Bankruptcy Trustee in October 2010. The
Trustee directed her employer to withhold $183 a pay period from Applicant’s paycheck
beginning November 19, 2010. In December, the Trustee directed her employer to
withhold $316 a pay period from Applicant’s pay check. Applicant’s November 2010 and
December 2010 pay statements reflected that this money is being withheld from her
pay. At the hearing, Applicant testified that her Chapter 13 payments would increase
Applicant understands that at the conclusion of her Chapter 13 bankruptcy, she will need continue her7
education loan payments.
AE A; AE B; AE N; Tr. 29-30.8
GE 5-GE 7; AE A; Tr. 30-34.9
AE F; AE H.10
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when her education loan problems were resolved.  Based on her testimony, I find that7
the increase in her bankruptcy payment is for payment of her student loan debt.  8
Applicant’s bankruptcy petition includes the SOR debts listed in paragraphs 1.a,
1.b, 1.d, 1.f, 1.g, 1.h, 1.i, and 1.k. The August 30, 2010 credit report shows that
Applicant paid the debts in SOR paragraphs 1.k and 1.m. The credit card debt in SOR
paragraph 1.c ($1,341) is listed only in the credit report dated February 1, 2008, which
shows a date of last activity as July 2001. Applicant indicated that she had this credit
card in college and defaulted on the debt in 2000. The $1,088 medical debt identified in
SOR paragraph 1.e is not listed on the most recent credit report, dated August 30,
2010. That date of last activity on this account was August 2003. Applicant believes her
state tax refunds paid this debt, thus, she denied owing it. The $182 phone debt in SOR
paragraph 1. j with a July 2005 date of last activity and the $89 medical debt in SOR
paragraph 1.l with a February 2003 date of last activity are only listed on the February
1, 2008 credit report. These four debts are not included in her bankruptcy petition.  9
The SOR identified 13 purportedly continuing delinquencies as reflected by credit
reports from 2008, 2009, and 2010 totaling approximately $56,582. Some accounts
have been transferred, reassigned, or sold to other creditors or collection agents. Other
accounts are referenced repeatedly in both credit reports, in many instances duplicating
other accounts listed, either under the same creditor or collection agency name or
under a different creditor or collection agency name. Some accounts are identified by
complete account numbers, while others are identified by partial account numbers, in
some instances eliminating the last four digits and in others eliminating other digits.
Three SOR debts (1.c, 1.j, and 1.l) listed on the February 1, 2008 credit report no
longer appear on her credit reports for unexplained reasons. Three SOR debts (1.c,
2.e, and 1.l), totaling $2,518, may have been removed under the requirements of the
Fair Credit Reporting Act because these debts are eight or more years old. Applicant
believes one of these debts (1.e) has been paid with her state tax refund. Her
bankruptcy application lists a medical bill for $84, but does not contain sufficient
information to determine if it is the same as the $89 medical debt in SOR paragraph 1.l.
Applicant submitted a budget which indicates a net household income of
approximately $3,400 with monthly expenses totaling approximately $3,278, including
her bankruptcy payment. She has sufficient income each month to pay her monthly
expenses.10
After she was hired in her current position, she completed her application for
trustworthiness with the help of an employee (employee A) of the company which found
Response to SOR; Tr. 35-36, 40-48.11
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her the job. Employee A filled in the information for her trustworthiness application
using the computer. Employee A did not read Applicant the questions, but asked
Applicant for information. Employee A asked Applicant if she had any recent debts that
were outstanding. Because she did not have recent overdue debts, Applicant said “no”
to Question 22B about debts more than 180 days past due. Employee A completed the
application on the computer and requested Applicant to sign it. Applicant signed the
application a second time, without reading it, when a representative of her employer
(employee B) requested her to do so at orientation. Applicant acknowledges that she
was careless and relied upon others when completing her SF 85P, but denies any
intent to hide her debts from the Government.  11
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 over-arching 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.
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,
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or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
Applicant has the ultimate burden of persuasion 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 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@
may raise security concerns. Applicant accumulated delinquent debt and was unable to
pay her education loans for a period of time. 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 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.@ Applicant=s
financial worries arose around 2000. Because of her income and her living expenses,
she was unable to pay her education loans and allowed smaller accounts to go unpaid.
AG ¶¶ 20(e) and 20(f) are not applicable in this case.12
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While her debts occurred long ago, the circumstances are not unusual and could occur
again. This mitigating condition is not applicable. 
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.@ Applicant has not
presented evidence that her financial problems occurred because of circumstances
beyond her control. This mitigating condition is not applicable. 
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 received financial counseling,
which helped her decide to file for Chapter 13 bankruptcy. Most of the debts listed in
the SOR, especially her education loans, are included in her bankruptcy payment plan.
Her monthly payments are being deducted from her bi-weekly pay. She pays her
monthly bills and does not use credit cards to pay for a lifestyle. She developed a
budget and now understands how to allocate her income and expenses. She wants
financial independence and knows that she must resolve her debts to achieve her goal.
Her monthly finances are under control and her past financial problems are being
resolved. This mitigating condition applies. 
Similarly, AG & 20(d) applies where the evidence shows Athe individual initiated a
good-faith effort to repay overdue creditors or otherwise resolve debts.@ Applicant paid
the debts in SOR paragraphs 1.k and 1.m on her own. This mitigating condition applies
to these two debts only.12
In sum, under Appellant’s Chapter 13 bankruptcy plan, the Bankruptcy Court has
determined that Appellant and her spouse can afford to pay $632 per month for 60
months. If they fail to complete the bankruptcy plan, all payments are forfeited, and
Appellant and her spouse return to their pre-bankruptcy status, except all the interest
payments are added onto what they owe. In the last three months, Appellant has made
the required payments and have shown sufficient diligence and effort to resolve her
delinquent debts. Appellant’s recent financial track record shows she is using good
judgment, and she is trustworthy and reliable.
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern for personal conduct:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
about an individual's reliability, trustworthiness and ability to protect
classified information. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-13
23133 at 5 (App. Bd. Jun. 9, 2004)).
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failure to cooperate with the security clearance process.
AG ¶ 16(a) describes conditions that could raise a security concern and may be
disqualifying:
(a) deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or
similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities.
For AG ¶ 16(a) to apply, Applicant’s omission, concealment or falsification in her
answer must be deliberate. Applicant’s completed SF 85P was initially signed on
January 15, 2008 and resigned on January 29, 2008. She answered “no” to Question
22B, denying having any debts more than 180 days past due. Thus, she omitted
material facts from her SF 85P about her finances. This information is material to the
evaluation of Applicant’s trustworthiness to hold a position of trust and to her honesty.
In her response to the SOR, she admits that her answer was incorrect, but denies that
she had an intent to falsify her answer or to hide this information from the Government.
When a falsification allegation is controverted, the Government has the burden of
proving it. Proof of an omission, standing alone, does not establish or prove an
applicant’s intent or state of mind when the omission occurred. An administrative judge
must consider the record evidence as a whole to determine whether there is direct or
circumstantial evidence concerning an applicant’s intent or state of mind at the time the
omission occurred.13
Applicant provided her answers for her SF 85P to employee A, who had asked
Applicant for information, but did not read the specific questions to Applicant. Employee
A simply asked if she had any recent debts that were outstanding, which Applicant did
not have. Employee A typed in Applicant’s responses to the SF 85P. On January 15,
2008, employee A presented Applicant with the application asking her to sign it.
Applicant did not read it. At orientation with her new employer, employee B asked
Applicant to resign and initial her answer to Question 22B. Applicant did as requested,
but did not pay close attention to what she was signing or read it. Her carelessness and
inattentiveness to what she was signing does not show that she had an intent to hide
information from the Government about her past due debts. She realized that she did
not answer this question correctly when she initially heard from DOHA. I find Applicant’s
explanation credible. Overall, I find the evidence of record failed to show that Applicant
intentionally falsified her answers on her SF 85P. The Government has not established
intentional falsification under Guideline E. Guideline E is found in favor of Applicant. 
Whole-Person Concept
Under the whole-person concept, the administrative judge must evaluate an
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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) 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. The decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct,
but on a reasonable and careful evaluation of all the evidence of record to decide if a
nexus exists between established facts and a legitimate security concern.
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant’s financial problems arose
when she was young and made poor financial decisions. Her debts are old. In recent
years, she has changed her spending habits. She has not incurred significant unpaid
debts since 2007. She pays her usual monthly bills. She decided to file a Chapter 13
bankruptcy petition to help her resolve her debts. She received financial counseling and
generated a budget. In 57 months, she will complete her Chapter 13 plan and all of her
delinquent unsecured, nonpriority debts will be discharged. She will still have to repay
her student loans. If she fails to comply with the Chapter 13 bankruptcy payment plan,
she will lose all payments made to the bankruptcy trustee, and will be further in debt
due to additional interest charges. She agreed to have her monthly bankruptcy
payments withheld from her pay check. 
Applicant has undergone significant behavioral changes. She has developed a
budget and lives within her budget. She works steadily and is respected at her job for
her performance. With her husband, she is helping to raise his teenage stepsons. She
has focused her attention on providing a stable financial environment for her family,
especially with her husband’s current sporadic employment situation. Most significantly,
she has taken affirmative action to pay or resolve most of the delinquent debts raising
security concerns by developing a repayment plan through the bankruptcy court. (See
AG & 2(a)(6).) She has not paid four bills totaling $2,700.00. These debts are no longer
on her credit reports. These debts were never reduced to a judgment and the Statute of
Limitations has expired, making the debts uncollectible. (See AG & 2(a)(8).) Thus,
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these debts cannot be a source of improper pressure or duress. Of course, the issue is
not simply whether all her debts are paidBit is whether her financial circumstances raise
concerns about her fitness to hold a position of public trust. While some debts remain
unpaid, they are insufficient to raise trustworthiness concerns as she has taken control
of more than 90% of her debts listed in the SOR. She is not required to be debt free to
hold a position of trust; rather she must manage her income, expenses, and debts. She
did not intentionally falsify her SF 85P. (See AG & 2(a)(1).)  
Overall, the record evidence leaves me without questions or doubts as to
Applicant’s eligibility and suitability for a public trust position. For all these reasons, I
conclude Applicant mitigated the trustworthiness concerns arising from her finances
and personal conduct.
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
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Subparagraph 1.g: For Applicant
Subparagraph 1.h: For Applicant
Subparagraph 1.i: For Applicant
Subparagraph 1.j: For Applicant
Subparagraph 1.k: For Applicant
Subparagraph 1.l: For Applicant
Subparagraph 1.m: For Applicant
Subparagraph 1.n: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: 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 public trust
position. Eligibility for access to sensitive information is granted.
                                              
                                                             
MARY E. HENRY
Administrative Judge