DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------------- )       ADP Case No. 10-00210
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Applicant for Public trust Position )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se
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 Decision
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WESLEY, Roger C., Administrative Judge:
Based upon a review of the case file, pleadings, and exhibits, eligibility for
holding a public trust position is denied.
   
Statement of Case
On July 8 2010, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing reasons why DOHA could not make the
preliminary affirmative determination of eligibility for a public trust position, and
recommended referral to an administrative judge to determine Applicant’s eligibility to
hold a public trust position. 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 (AGs), implemented by the Department of Defense on
September 1, 2006.
Applicant responded to the SOR on August 12, 2010, and elected to have his
case decided on the basis of the written record. Applicant received the File of Relevant
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Material (FORM) on October 6, 2010, and did not respond with any information within
the 30 days permitted.  The case was assigned to me on November 24, 2010.   
Summary of Pleadings
Under Guideline F, Applicant is alleged to have accumulated nine delinquent
debts, exceeding $99,000, as follows: creditor 1.a ($233); creditor 1.b ($82); creditor 1.c
($33,593); creditor 1.d ($1,010); creditor 1.e ($18,715); creditor 1.f ($380); creditor 1.g
($188); creditor 1.h ($9,089); and creditor 1.I ($14,098). In his response to the SOR,
Applicant admitted all but one of the alleged delinquent debts.  He provided no
explanations to his answers. 
Findings of Fact
Applicant is a 40-year-old TRICARE customer service representative who seeks
eligibility to hold a public trust position. The allegations covered in the SOR and
admitted by Applicant are adopted as relevant and material findings. Additional findings
follow.
                                  
Applicant has been married to his spouse since August 1977 (see Item 1).  He
has four children from this marriage. He attended college between September 1992
and August 1997 at accredited institutions of higher learning.  He has no degree from
either institution. 
While attending college, Applicant accumulated a number of student loans.
Records document he accrued student loans exceeding $73,000 (Items 4 through 6
and 9).  Unemployed for much of the period spanning December 2007 and April 2009,
he was unable to pay on any of his student loans.  Consequently, his loans were placed
in delinquent status. (Item 7) Applicant has made no payments on any of his delinquent
student loans.
Besides his delinquent student loans, Applicant accumulated a number of
delinquent consumer debts. Credit reports document that he accrued delinquent debts
with four creditors in excess of $1,500 (viz., creditor 1.a for $233, creditor 1.b for $82,
creditor 1.d for $1,010, and creditor 1.g for $188) between 2002 and 2006. (see Item 5) 
In an interview conducted by an agent from the Office of Personnel Management
in November 2009, Applicant listed net monthly income of $2,022, monthly expenses of
$1,060 and monthly debt payment outlays of $145. (Item 7) He reported monthly
discretionary funds of $417 and assets of $11,600. (Item 7) He provided no
explanations why he could not make monthly payments on his student loans with the
remaining funds available to him every month. He indicated only that he intended to
contact the listed four consumer creditors to explore payment options available to him.
Once he is able to do so, he wants to resolve his student loan accounts. (Item 7) 
Afforded an opportunity to supplement the record, Applicant provided no
endorsements or performance evaluations on his behalf.  Nor did he provide any proof
of community and civic contributions.
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Policies
The AGs list guidelines to be used by administrative judges in the decision-
making process covering DOHA cases. These guidelines take into account factors that
could create a potential conflict of interest for the individual applicant, as well as
considerations that could affect the individual’s reliability, trustworthiness, and ability to
occupy a public trust position. These guidelines include "[c]onditions that could raise a
security concern and may be disqualifying” (disqualifying conditions), if any, and many
of the "[c]onditions that could mitigate public trust concerns.” These guidelines must be
considered before deciding whether or not a determination of eligibility to occupy a
public trust position should be granted, continued, or denied. The guidelines do not
require administrative judges to place exclusive reliance on the enumerated
disqualifying and mitigating conditions in the guidelines in arriving at a decision. Each of
the guidelines is to be evaluated in the context of the whole person in accordance with
AG ¶ 2(c). 
In addition to the relevant AGs, administrative judges must take into account the
pertinent considerations for assessing extenuation and mitigation set forth in AG ¶ 2(a)
of the revised AGs, which are intended to assist the judges in reaching a fair and
impartial commonsense decision based upon a careful consideration of the pertinent
guidelines within the context of the whole person. The adjudicative process is designed
to examine a sufficient period of an applicant’s life to enable predictive judgments to be
made about whether the applicant is an acceptable trust risk. 
When evaluating an applicant’s conduct, the relevant guidelines are to be
considered together with the following AG ¶ 2(a) factors: (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 chances; (7) the motivation for the conduct; (8) the potential for
pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or
recurrence.
Viewing the issues raised and evidence as a whole, the following individual
guidelines are pertinent in this case:
Financial Considerations
The Concern: 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.  Compulsive gambling is a concern as it may lead to financial
crimes including espionage.  Affluence that cannot be explained by known
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sources of income is also a security concern.  It may indicate proceeds
from financially profitable criminal acts. AG ¶ 18.
Burden of Proof
By virtue of the principles and policies framed by the AGs, a decision to grant
or continue an applicant's eligibility to hold a public trust position may be made only
upon a threshold finding that to do so is clearly consistent with the national interest.
Because the Directive requires administrative judges to make a commonsense
appraisal of the evidence accumulated in the record, the ultimate determination of an
applicant's eligibility for a public trust position depends, in large part, on the relevance
and materiality of that evidence. See Kungys v. United States, 485 U.S. 759, 792-800
(1988).  As with all adversarial proceedings, the judge may draw only those inferences
which have a reasonable and logical basis from the evidence of record.  Conversely,
the judge cannot draw factual inferences that are grounded on speculation or
conjecture.
The Government's initial burden is twofold: (1) it must prove by substantial
evidence any controverted facts alleged in the SOR, and (2) it must demonstrate that
the facts proven have a material bearing to the applicant's eligibility to hold a public
trust position. The required materiality showing, however, does not require the
Government to affirmatively demonstrate that the applicant has actually mishandled or
abused privacy information before it can deny or revoke an applicant’s eligibility to
hold a public trust position. Rather, the judge must consider and weigh the cognizable
risks that an applicant may deliberately or inadvertently fail to safeguard privacy
information.
Once the Government meets its initial burden of proof of establishing admitted
or controverted facts, the evidentiary burden shifts to the applicant for the purpose of
establishing his or her public trust worthiness through evidence of refutation,
extenuation, or mitigation. 
Analysis  
Applicant is a TRICARE customer service representative who accumulated a
number of delinquent debts (mostly student loan obligations) during a period of
extended unemployment. His reported delinquent debts include four student loan
obligations exceeding $82,000 and four consumer debts exceeding $1,500. His
accumulation of delinquent debts and his past inability and unwillingness to address
these debts warrant the application of two of the disqualifying conditions (DC) of the
Guidelines: DC ¶ 19(a), “inability or unwillingness to satisfy debts,” and ¶19(c) “a
history of not meeting financial obligations.”
Applicant’s pleading admissions of most of the debts covered in the SOR
negate the need for any independent proof (see McCormick on Evidence, § 262 (6th
ed. 2006)). Each of Applicant’s listed debts, though, are fully documented in
Applicant’s latest credit reports and provide ample corroboration of his debts.
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Moreover, some judgment problems persist, too, over Applicant’s unexplained
delinquencies and his failure to demonstrate he acted responsibly in addressing his
listed debts once the underemployment conditions that contributed to the
delinquencies had passed or eased, and his finances had improved. See ISCR Case
03-01059 at 3 (App. Bd. Sep. 24, 2004). Not only are his listed debt delinquencies
ongoing, but he has failed to address them in any tangible way.  Mitigation credit is
not available to Applicant based on the evidence developed in this record.         
                                          
Holding a public trust position involves a fiduciary relationship between the
Government and the position. Quite apart from any agreement the position occupant
may have signed with the Government, the nature of the position occupant’s duties
and access to information protected by privacy laws impose important duties of trust
and candor on the position occupant that are considerably higher than those typically
imposed on Government employees and contractors involved in other lines of
Government business.  See Snepp v. United States, 444 U.S. 507, 511 n.6 (1980).
Failure of the applicant to make concerted efforts to pay or resolve his debts when
able to do so raises concerns about whether the applicant has demonstrated the trust
and judgment necessary to protect privacy-covered information in his possession. 
Based on the documented materials in the FORM, some extenuating
circumstances are associated with Applicant’s inability to pay or otherwise resolve his
debts. Available to Applicant is MC ¶ 20(b), “the conditions that resulted in the
behavior 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.”
Whole-person assessment does not enable Applicant to surmount the
judgment questions raised by his accumulation of delinquent debts. Since his return to
full-time employment in 2009, he has not shown any manifest effort in addressing any
of his covered student loan and consumer debts to mitigate his still delinquent
accounts. Resolution of his delinquent accounts is a critical prerequisite to his
regaining control of his  finances.
While unemployment conditions played a considerable role in his accumulation
of so much delinquent debt, Applicant failed to provide any explanatory material for
consideration. Endorsements and performance evaluations might have been helpful,
too, in making a whole-person assessment of his public trust position eligibility, but
were not provided. Overall, public trust position eligibility assessment of Applicant
based on the limited amount of information available for consideration in this record
does not enable him to establish judgment and trust levels sufficient to overcome trust
concerns arising out of his accumulation of delinquent debts.
Taking into account all of the documented facts and circumstances surrounding
Applicant’s debt accumulations and his failure to provide any proof of  corrective
actions taken to address his old debts, it is still soon to make safe predictive
judgments about Applicant’s ability to repay his debts and restore his finances to
stable levels commensurate with the minimum requirements for holding a public trust
position. Unfavorable conclusions warrant with respect to the allegations covered by
subparagraphs 1.a through 1.i.  
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In reaching my decision, I have considered the evidence as a whole, including
each of the 2(a) factors enumerated in the AGs.
Formal Findings
In reviewing the allegations of the SOR and ensuing conclusions reached in the
context of the findings of fact, conclusions, conditions, and the factors listed above, I
make the following formal findings:
GUIDELINE F (FINANCIAL CONSIDERATIONS): AGAINST APPLICANT
   
Subparas. 1.a through 1.i:                            Against Applicant
Conclusions
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant’s eligibility to occupy a
public trust position.  Public trust position eligibility is denied.
                                          
Roger C. Wesley
Administrative Judge 
                                        
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