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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ADP Case No. 10-04781
)
)
Applicant for Public Trust Position )
Appearances
For Government: Candace L. Garcia, 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, I
conclude that Applicant’s eligibility for access to sensitive information is denied.
Applicant submitted her Questionnaire for Public Trust Position (SF 85P) on July
9, 2009. The Defense Office of Hearings and Appeals (DOHA) issued Applicant a
Statement of Reasons (SOR), detailing trustworthiness concerns under Guideline F
(Financial Considerations) and Guideline E (Personal Conduct) on October 18, 2010.
The action was taken under Department of Defense Directive 5220.6, Defense
Industrial Personnel Security Clearance Review Program (January 2, 1992), as
amended (Directive); Department of Defense Regulation 5200.2-R, Personnel Security
Program, dated January 1987, as amended (Regulation); and the Adjudicative
Guidelines For Determining Eligibility for Access to Classified Information (AG)
implemented on September 1, 2006. 
Applicant answered the SOR in writing on November 2, 2010, and requested a
hearing before an Administrative Judge. DOHA received her request on November 8,
2010. Department Counsel was prepared to proceed on January 24, 2011, and I
GE 1; Tr. 24.1
GE 1; Tr. 24, 39-41, 49-50.2
GE 1; Tr. 33, 44-48.3
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received the case assignment on February 1, 2011. DOHA issued a notice of hearing
on February 23, 2011, and I convened the hearing as scheduled on March 10, 2011.
The Government offered exhibits marked as GE 1 through GE 5, which were received
and admitted into evidence without objection. Applicant testified. DOHA received the
hearing transcript (Tr.) on March 18, 2011. I held the record open until March 31, 2011
for Applicant to submit additional matters. Applicant timely submitted AE A through AE
T, which was admitted into the record  without objection. The record closed on March
31, 2010.
Procedural Ruling
Notice
At the hearing, Applicant indicated she did not receive the hearing notice. (Tr. at
12.) I advised Applicant of her right under ¶ E3.1.8 of the Directive to 15 days notice
before the hearing. Applicant affirmatively waived her right to 15 days notice. (Tr. at 12.)
Findings of Fact
In her Answer to the SOR, dated November 2, 2010, Applicant admitted the
factual allegations in the SOR. She denied the Guideline F concern.  
Applicant, who is 49 years old, works as a patient care advocate for a
Department of Defense contractor. She began her current employment in April 2009.1
Applicant graduated from high school in 1979. She married in 1979 and divorced
in 2000. She has six children and seven grandchildren. Her daughters are ages 30, 28,
26, and 25, and live independently. Her sons are ages 20 and 17 and reside with her,
as does her boyfriend.2
Applicant began working about three years before her divorce at minimum wage
jobs. In 1999, she started working at a gasoline station, which included a fast food
restaurant. She eventually became the manager of this business. She resigned her
position in October 2007 because the financial issues of the business caused her
severe stress. In December 2007, she started working as a customer service
representative for a financial services company. Four months later, she left this job and
began working as an administrative assistant at a manufacturing business. She worked
at this job for six months. After four to six weeks of unemployment, she began working
as a customer service representative for a retail business. She left the retail job for her
current position. She did not collect unemployment benefits during her periods of
unemployment.3
AE N - AE T; Tr. 44-46.4
AE L. In January 2011, Applicant’s net pay was $2,141. In February 2001, her net pay was $2,113. In5
March 2011, her net pay was $1,579. Id.
Tr. 39-40, 49-51.6
Tr. 69–71.7
Tr. 35-38, 56.8
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Applicant earned $34,000 a year when working as the gasoline station manager.
She earned more than $10,000 a year less at her subsequent jobs. Her federal and
state tax returns indicate an adjusted gross income of $34,879 for 2007, $20,119 for
2008, and  $23,478 for 2009.4
Applicant currently earns $12.32 an hour and $18.48 an hour for overtime. Her
net monthly pay averages $1,652 without overtime. Her net earnings are larger when
she works overtime.  Her sons are now working, but do not contribute to household5
expenses. This summer, she will ask them for financial assistance with the electric bill.
Her boyfriend contributes $500 a month to household expenses, and she receives $200
a month in food stamps. Her monthly expenses average $2,100. When she has extra
money, she transfers the money to her savings account to help with extra costs, such
as car maintenance, tires, and summer electric bills. She recently received her 2010 tax
refund of $2,400, which she placed in her savings account for unanticipated or one-time
expenses.6
Applicant owns a 2002 Ford vehicle. She does not have a loan on this car. She
has not taken a vacation since she left her gasoline station position. Last summer, her
boyfriend took her on an overnight trip, for which he paid. She does not use credit
cards.7
While reviewing the SOR debts at the hearing, Applicant advised that she does
not recognize the creditors for the debts listed in SOR allegations 1.b, 1.g, 1.h, 1.i, and
1.p, which are debts now owned by credit collection companies. She acknowledged the
remaining debts as hers. When she worked as a manager, she acquired credit cards.
When her income declined, she encountered problems with paying her credit cards and
other bills. She stated that she still did not have any money to pay these overdue debts
and has not paid the debts.8
Applicant saved her money and purchased a house in 2003 for approximately
$120,000. Three years later, her car stopped operating and required expensive repairs.
Because she did not have the money to repair her car, she decided to refinance her
house, which she now regrets. She refinanced her house in 2006 for $157,000 with a
two-year interest-only loan. She tried to refinance the house a second time, but when
the house appraised at lower than her mortgage debt, she could not get a loan. At the
same time, she encountered problems paying her interest-only loan because her
income had declined by one-third. The mortgage company eventually foreclosed on her
AE H; AE N; Tr. 28-33, 60-62.9
AE F; Tr. 52-55, 64.10
AE G.11
AE B; AE C; AE D; AE E; AE M.12
Tr. 41-42, 66-67.13
Id. 73-82.14
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house. She has not received any deficiency notices from the mortgage company, and
her most recent documentation from the company does not indicate that she has an
unpaid balance on her mortgage. In 2008, the mortgage company provided her with a
1099-A form for acquisition or abandonment of secured property, which was included
as a document with her 2008 federal and state tax returns, but was not computed as
income on her tax returns for that year.  9
At the hearing, Applicant indicated that she had not received financial
counseling. She also stated that she was seriously considering filing bankruptcy.
Subsequent to the hearing, Applicant submitted a copy of a contract showing that she
retained the services of a company to help her prepare the necessary documents to file
a Chapter 7 bankruptcy petition on her own.  She also completed the financial10
counseling course required for filing bankruptcy.  She pays her current bills each11
month.12
When she completed her SF 85P, Applicant answered “no” to Question 22b,
which asked if she had any loans or financial obligations more than 180 days
delinquent. She denies that she intentionally mislead the Government or tried to hide
her past debts from the Government. At the hearing, she did not provide a reason for
her actions, as she could not explain what she was thinking when she completed her
SF 85P. She said she focused primarily on making sure her addresses and dates of
residency were correct.13
Applicant’s immediate supervisor testified on her behalf. She understood that the
reason for the hearing related to Applicant’s debts, which were not a concern to her.
She described Applicant as a great worker, who is dependable, reliable, trustworthy,
and honest, and who works well with others. As for Applicant’s honesty, Applicant’s
supervisor described an incident which Applicant brought to the supervisor’s attention.
Applicant advised her supervisor that she was receiving top scores on all her calls,
which Applicant thought this was incorrect. Applicant’s supervisor checked out the
information and agreed with Applicant. Applicant’s employer pays a bonus based these
scores. By notifying her supervisor of the problem. Applicant negatively impacted the
amount of her bonus. In her supervisor’s opinion, this action of Applicant showed that
Applicant is not deceptive for monetary gain. Applicant recently received a merit
increase in pay, as well as a DoD-mandated increased in pay. She recommended
Applicant for a trustworthiness determination.14
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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,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
Applicant has the ultimate burden of persuasion as to obtaining 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.
ISCR Case No. 09-08533 (App. Bd. Oct. 6, 2010)15
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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. 
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 experienced problems with paying her bills when
she left her manager position in 2007, causing her to accumulate delinquent debts. She
has been unable to pay her obligations. The evidence is sufficient to raise these
potentially disqualifying conditions, requiring a closer examination.
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 reliability, trustworthiness, or good
judgment.@ Applicant=s financial worries arose about three years ago when her income
declined by one-third. Her income continues to remain significantly below her 2007
earnings. She pays her current bills and manages her limited income carefully. Her
current financial management does not raise a security concern, but her past debts do.
This mitigating condition has some applicability.  15
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’s financial
problems began when she left her manager position due to stress created by the
AG ¶¶ 20(e) and 20(f) are not applicable in this case.16
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financial decisions of the business owner. Applicant had no control over the actions of
the business owner. Applicant found new employment within two months, but she took
a significant decrease in salary. Her income has not improved, so she has been unable
to pay her overdue debts. She can only pay her current bills. This mitigating condition is
partially 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). After the hearing, Applicant received financial
counseling when she took the first steps towards filing for bankruptcy. Under her state’s
anti-deficiency statutes, she is not be liable for any unpaid mortgage debt following the
sale of her property because her loan was a purchase money mortgage. See State
Statutes 33-701 et seq and 33-801 et seq. Not only is she not liable for her mortgage
under state law, the mortgage company did not make a demand for payment when she
recently contacted the mortgagor for information on her debt. Thus, her mortgage debt
is resolved. This mitigating condition has limited application.
AG & 20(d) applies where the evidence shows Athe individual initiated a good-
faith effort to repay overdue creditors or otherwise resolve debts.@ Applicant has not
contacted the creditors to establish a payment plan nor has she paid her overdue
debts. This mitigating condition is not applicable.16
Guideline E, Personal Conduct
AG ¶ 15 expresses the trustworthiness concern pertaining to 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
failure to cooperate with the security clearance process.
AG ¶ 16(a) describes a condition that could raise a trustworthiness concern and
may be disqualifying:
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. The Government established that Applicant omitted a
material fact from her SF 85P when she answered “no” to Question 22b about debts
See ISCR Case No. 09-07551 (App. BD. Mar. 1, 2011); ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17,17
2004)(explaining holding in ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004)).
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over 180 days delinquent. This information is material to the evaluation of Applicant’s
trustworthiness to hold a position of public trust and to her honesty. In her response,
she agreed to the facts set out in SOR allegation 2.a. However, at the hearing, she
denied that she had an intent to mislead 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.17
When she completed her SF 85P in 2009, Applicant focused on providing
accurate information about her residential addresses and length of residency at these
addresses. She did not pay careful attention to the financial questions and readily
admits that she has no explanation for her answer. Her supervisor testified about how
Applicant advised her about problems with Applicant’s top rating scores. Applicant did
not believe her scores were correct, and Applicant was right. Applicant’s actions
resulted in a lower bonus. Her supervisor considered her actions a reflection of her
honesty. Applicant made no excuses for her failure to read the questions carefully, an
indication of her honesty. After consideration of Applicant’s credible testimony and the
record evidence, I find that Applicant did not intentionally falsify her SF 85P. The
Government has not established intentional falsification. Guideline E is found in favor of
Applicant.
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 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 public
trust position 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 trustworthiness determination requires a careful weighing of all relevant factors,
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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 trustworthiness
concern is established and then whether it is mitigated. A determination of an
applicant’s eligibility for a public trust position 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
trustworthiness concern.
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant married young. She raised
six children. The last 10 years she did so on her own. She works hard, but does not
earn a high salary. She pays her current bills and carefully manages her limited
financial resources. Her financial problems began when she left a highly stressful job,
resulting in a one-third loss of income, making it difficult to pay her bills. She regrets
refinancing her house because eventually she could not pay her mortgage and lost her
house to foreclosure. She fell behind in other bills because she over-extended herself
when she had more income. She has been unable to pay her overdue debts. Of course,
the issue is not simply whether all her debts are paid;Bit is whether her financial
circumstances raise concerns about her fitness to hold a position of public trust. She is
just beginning the process to file bankruptcy and resolve these debts. At the present,
her debts remain unresolved, and she lacks the financial means to pay these debts.
Thus, she has not mitigated the Government’s trustworthiness concerns arising from
her finances. She is an honest person. Her failure to list her debts resulted from
carelessness, not a deliberate intent to mislead or hide information from the
Government.
Overall, the record evidence leaves me with 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 personal
conduct, but she has not mitigated the trustworthiness concerns raised about her
finances. 
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.l: Against Applicant
Subparagraph 1.m: For Applicant
Subparagraphs 1.n-1.r: Against 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 not
clearly consistent with national security to grant Applicant eligibility for a public trust
position. Eligibility for access to sensitive information is denied.
                                              
                                                             
MARY E. HENRY
Administrative Judge