DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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----------------------------------   )       ADP Case No. 10-02536
)
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Applicant for ADP Determination )
Appearances
For Government: Jeff A. Nagel, Department Counsel
For Applicant: Pro se
May 16, 2011
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Public Trust Positions Application (Standard Form 85-P)
dated September 1, 2009.  (Government Exhibit 1.)  On August 25, 2010, the Defense
Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as
amended), and Department of Defense Directive 5220.6 (Directive), dated January 2,
1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the
reasons why DOHA could not make the preliminary affirmative finding under the
Directive that it is clearly consistent with the national interest to grant or continue access
to sensitive information for the Applicant and recommended referral to an Administrative
Judge to determine Applicant’s eligibility for a position of trust.
 The Applicant responded to the SOR on September 13, 2010, and he requested
a hearing before a DOHA Administrative Judge.  This case was assigned to this
Administrative Judge on January 4, 2011.  A notice of hearing was issued on January
13, 2011, scheduling the hearing for February 16, 2011.  The Government presented
nine exhibits, referred to Government Exhibits 1 to 9, which were admitted without
objection.  The Applicant presented five exhibits, referred to as Applicant’s Exhibits A
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and E, which were admitted without objection.  He also testified on his own behalf.  The
official transcript (Tr.) was received on February 25, 2011.  Based upon a review of the
case file, pleadings, exhibits, and testimony, eligibility for a position of trust is granted.
FINDINGS OF FACT
The following Findings of Fact are based on the Applicant’s Answer to the SOR,
the testimony and the exhibits.  The Applicant is 54 years old and married with three
adult children.  He is a high school graduate.  He is employed by a defense contractor
as a Material Handler/Packer and is seeking to obtain a favorable trustworthiness
determination in connection with his employment.  
The Government opposes the Applicant's request for a trustworthiness
determination, on the basis of allegations set forth in the Statement of Reasons (SOR).
After a complete and thorough review of the evidence in the record, and upon due
consideration of the same, the following findings of fact are entered as to each
paragraph and guideline in the SOR:
Paragraph 1 (Guideline F - Financial Considerations)  The Government alleges that the
Applicant is ineligible for a trustworthiness determination because he is financially
overextended and at risk to engage in illegal acts to generate funds. 
The Applicant denies each of the delinquent debts set forth in the SOR under this
guideline that total over $76,000.00.  (See, Applicant’s Answer to SOR.)  Credit Reports
of the Applicant dated September 19, 2009; June 17, 2010; and December 12, 2010,
collectively reflect that at one time each of the delinquent debts set forth in the SOR
were owing.  (Government Exhibits 6, 7 and 8.)  Presently, all but one of the debts have
been discharged in bankruptcy. 
The Applicant has had three employers his entire life.  He served honorably in
the United States Marine Corps for six years from 1975 to 1981, from the age of
seventeen until he was twenty-three.  In 1974, he started working at a grocery store as
a bagger, and over a thirty-six year period he held numerous positions of great trust and
handled large amounts of money.  He worked his way up to co-manager of the store
and retired in 2010.  He is currently working for a defense contractor.  Up to this point,
he had excellent credit and always demonstrated responsibility, reliability and
trustworthiness.  
About three years ago, due to the recession, the Applicant’s household income
took a drastic drop.  His wife’s income was reduced by 50%, his income was reduced by
15%, and the value of his residence fell 50%.  He was receiving less overtime than he
had been, and his wife, who was working part-time, had her hours cut in half.  So
instead of receiving $900.00 weekly, he received $550.00 a week.  His wife, who had
been receiving almost $700.00 weekly, was now receiving $350.00 weekly.  (Tr. p. 43.)
The Applicant tried to pay his bills, but for the most part he was paying late.  The
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Applicant became indebted to creditors in the following amounts: in the amount of
$6,385.00; in the amount of $2,431.00; in the amount of $3,446.0; in the amount of
$204.00; in the amount of $5,490.90; in the amount of $692.00; in the amount of
$4,392.00; in the amount of $100.00; and in the amount of $55,624.00 (for a second
mortgage on the Applicant’s house).  Realizing that he needed professional help to
resolve the problem, the Applicant retained an attorney.  Although it was not something
he wanted to do, based upon his drastically reduced income his attorney advised him
that his best option was to file for bankruptcy.  On June 3, 2010, the Applicant filed for
Chapter 7 and listed each of his delinquent debts set forth in the SOR, except 1(i), the
second mortgage on the Applicant’s house.  Each of the delinquent debts set forth in
the SOR, except 1(i), were discharged in bankruptcy on August 2, 2010.  (See
Applicant’s Answer to SOR and Tr. p. 48.)  The Applicant also completed his debtor
education course and received a Certificate of Financial Counseling.  (Applicant’s
Exhibit D.)  
The Applicant can no longer afford the house that he has lived in for the past
twelve years.  The mortgage loan adjusted and the payments are now too high.  The
Applicant tried to modify his loan, but was unsuccessful.  The house is in the process of
being short saled.  The bank has agreed to accept the offer by the purchasers and the
short sale process is well underway.  (Applicant’s Exhibit E.)   
The Applicant understands the importance of being fiscally responsible.  He has
now adjusted his lifestyle to his reduced income and is living within his means.  He
understands that he must never overspend.  He believes that he can now handle his
finances in a timely fashion and without difficulties.  He is working to repair his credit.    
Applicant’s bank statements for the period from October 20, 2010, to November
17, 2010, indicates that after paying his monthly expenses, he has a monthly balance of
$1,287.58 left at the end of the month.  (Tr. p. 33 and Applicant’s Exhibit B.) 
Paragraph 2 (Guideline E - Personal Conduct).  The Government alleges that the
Applicant is ineligible for a trustworthiness determination because he intentionally
falsified material aspects of his personal background during the security clearance
process.
The Applicant completed a Public Trust Position Application dated September 1,
2009.  (Government Exhibit 1.)  Question 22 of the application asked the Applicant, “Are
you now over 180 days delinquent on any loan or financial obligation.  Include loans or
obligations funded or guaranteed by the Federal Government.”  The Applicant
answered, “NO.”  (Government Exhibit 1.)  The Applicant failed to disclose those debts
set forth in the SOR listed in 1(b) through 1(i) of the SOR.  
The Applicant explained that he never intended to mislead the Government when
he answered this question on the application.  He stated, “It was a matter of haste.  I
filled out the paper real quick and I - - honestly , I had a cocky attitude.  And I go, I got
this job and, you know, I signed it - - you know, cause like - - even when they
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interviewed me, I told the boss - - they go, you know, what do you know, what do you
think about - - you know, what words can you tell us?  I go, anybody that hires me is
lucky because I have a lot to bring to the board.  And I told ‘em that.”  The Applicant did
not pay as much attention to the form as he should have and he made an error.  He has
learned that it can never happen again.  (Tr. pp. 57-58.)       
Letters of recommendation from the Applicant’s current supervisor, past
supervisor from his previous employer, and other professional associates attest to his
strong work ethic and integrity, professionalism, reliability, diligence and honesty.  The
Applicant is described as a “valuable asset to the company.”  He is recommended for a
position of trust.  (Applicant’s Exhibit A.)
POLICIES
Positions designated as ADP I and ADP II are classified as “sensitive positions.”
(See Regulation ¶¶C3.1.2.1.1.7 and C3.1.2.1.2.2.)  “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 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.
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.
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Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR.  Under Directive ¶ ED3.1.15, 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 failed 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).
Enclosure 2 of the Directive sets forth adjudication policies divided into
"Disqualifying Factors" and "Mitigating Factors."  The following Disqualifying Factors
and Mitigating Factors are found to be applicable in this case:
Guideline F (Financial Considerations)
18.  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 sources of income is also a
security concern.  It may indicate proceeds from financially profitable criminal acts.
Conditions that could raise a security concern:
19(a)  inability or unwillingness to satisfy debts;
19(c)  a history of not meeting financial obligations.
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Conditions that could mitigate security concerns:
20(b) 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 circumstance;
20(d) the individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts.
Guideline E (Personal Conduct)
15.  The Concern.  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.
Condition that could raise a security concern:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19,  in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct;
b. The circumstances surrounding the conduct, to include knowledgeable
participation;
c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The extent to which participation is voluntary;
f.  The presence or absence of rehabilitation and other permanent behavioral
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and 
 
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i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to sensitive information.
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
an acceptable security risk.  Eligibility for access to classified information is predicated
upon the individual meeting these personnel security guidelines.  The adjudicative
process is the careful weighing of a number of variables known as the whole-person
concept.  Available, reliable information about the person, past and present, favorable
and unfavorable should be considered in reaching a determination.” The Administrative
Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record.  The Judge cannot draw inferences or conclusions
based on evidence which is speculative or conjectural in nature.  Finally, as emphasized
by President Eisenhower in Executive Order 10865, “Any determination under this order
. . . shall be a determination in terms of the national interest and shall in no sense be a
determination as to the loyalty of the Applicant concerned.”
CONCLUSIONS
In the defense industry, a position of trust is granted to only those civilian workers
who must be counted upon to safeguard such sensitive information twenty-four hours
per day, seven days per week.  The Government is therefore appropriately concerned
when available information indicates that an Applicant for such access may be involved
in instances of financial irresponsibility or dishonesty which demonstrates poor judgment
or unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s conduct and the
eligibility for a trustworthiness determination.  If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case.  The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a favorable trustworthiness determination and
access to sensitive information.
In this case the Government has met its initial burden of proving that the
Applicant has been financially irresponsible (Guideline F).  This evidence indicates poor
judgment, unreliability and untrustworthiness on the part of the Applicant.  Because of
the scope and nature of the Applicant's conduct, I conclude there is a nexus or
connection with his trustworthiness eligibility.
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Due to the recession, and through no fault of his own, the Applicant’s household
income was substantially reduced.  He did not have enough money to pay the bills he
had previously accumulated.  To resolve his debts, he hired an attorney who
recommended bankruptcy.  He filed bankruptcy and discharged his debts.  His house
that he can no longer afford, is in the process of being short saled.  Although his
situation is unfortunate, he has done everything humanly possible to show that he is
responsible, trustworthy and reliable.  At this point, he is for the most part debt free and
he plans to stay that way.  He is working to rebuild his credit.
There is sufficient evidence of financial rehabilitation at this time.  Under
Guideline F (Financial Considerations), Disqualifying Conditions 19(a) inability or
unwillingness to satisfy debts, and 19(c) a history of not meeting financial obligations
apply.  However, Mitigating Conditions 20(b) 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 circumstance and, 20(d) the individual initiated a
good-faith effort to repay overdue creditors or otherwise resolve debts also apply.  The
Applicant has indeed made a good faith effort to repay his overdue creditors or
otherwise resolve his debts.  Accordingly, I find for the Applicant under Guideline F
(Financial Considerations).  
Under Guideline E, the Applicant did not deliberately conceal material information
from the Government on his application in response to questions about his  delinquent
debts.  He was careless in answering the questions, but not deceitful.  He was not trying
to conceal his delinquent indebtedness, he simply did not spend sufficient time to
answer the questions as carefully as he should have.  He now realizes the importance
associated with the application and indicates that it will never happen again.
Accordingly, I find for the Applicant under Guideline E (Personal Conduct.)  
I have also considered the “whole-person concept” in evaluating the Applicant’s
eligibility for access to classified information.  Under the particular facts of this case, the
totality of the conduct set forth under all of the guidelines viewed as a whole, support a
whole-person assessment of good judgement, trustworthiness, reliability, candor, a
willingness to comply with rules and regulations, or other characteristics indicating that
the person may properly safeguard classified information.  
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 his financial
considerations and personal conduct.  Accordingly, the evidence supports a finding for
the Applicant as to the factual and conclusionary allegations expressed in Paragraphs 1
and 2 of the Government's Statement of Reasons.       
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FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: For the Applicant.
    Subpara.  1.a.: For the Applicant.
    Subpara.  1.b.: For the Applicant.
    Subpara.  1.c.: For the Applicant.
    Subpara.  1.d.: For the Applicant.
    Subpara.  1.e.: For the Applicant.
    Subpara.  1.f.: For the Applicant.
    Subpara.  1.g.: For the Applicant.
    Subpara.  1.h.: For the Applicant.
    Subpara.  1.i.: For the Applicant.
   
Paragraph 2: For the Applicant.
    Subpara.  2.a.: For the Applicant.
DECISION
In light of the circumstances presented by the record in this case, it is clearly
consistent with the national interests to grant Applicant eligibility for a public trust
position.  Eligibility for access to sensitive information is granted.
  Darlene Lokey Anderson
Administrative Judge