DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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----------------------------------   )       ISCR Case No. 10-00106
)
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Department Counsel
For Applicant: Adam M. Zolonz, Attorney At Law
September 6, 2011
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
dated July 10, 2009.  (Government Exhibit 1.)  On March 17, 2011, 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 classified information
for the Applicant and recommended referral to an Administrative Judge to determine
Applicant’s eligibility for a security clearance.
 The Applicant responded to the SOR on April 8, 2011, and he requested a
hearing before a DOHA Administrative Judge.  This case was assigned to this
Administrative Judge on May 24, 2011.  A notice of hearing was issued on June 14,
2011, scheduling the hearing for July 20, 2011.  The Government presented ten
exhibits, referred to Government Exhibits 1 through 10, which were admitted without
objection.  The Applicant presented submitted ten documentary exhibits, referred to as
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Applicant’s Exhibits A through J, which were admitted without objection.  He testified on
his own behalf.  The record remained open until close of business on August 17, 2011,
to allow the Applicant the opportunity to submit additional documentary evidence.  The
Applicant submitted seven documentary exhibits referred to as Applicant’s Post-Hearing
Exhibits A through G, which were admitted without objection.  The official transcript (Tr.)
was received on August 5, 2011.  Based upon a review of the pleadings, exhibits, and
testimony, eligibility for a security clearance 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 31 years and unmarried.  He was
employed by a defense contractor as a Military Tactical Advisor, and was removed from
the position pending the outcome of this decision.  He is seeking to obtain a security
clearance in connection with his employment.  
The Government opposes the Applicant's request for a security clearance, 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 clearance because he is financially overextended and at risk
of having to engage in illegal acts to generate funds. 
The Applicant admits allegations 1(b), 1(c), 1(d), 1(e), 1(f), and 1(g) of the
delinquent debts set forth in the SOR.  He denies allegations 1(a), 1(h), 1(i), 1(j), 1(k),
and 1(l.)  (See, Applicant’s Answer to SOR.)  Credit Reports of the Applicant dated
September 10, 2009; November 12, 2010; February 24, 2011; and July 13, 2011,
collectively reflect that at one time each of the delinquent debts set forth in the SOR
were at one time owing.  (Government Exhibits 2, 3, 8 and 10.)
After graduating from high school in 1998 the Applicant joined the United States
Marine Corps in December 1999.  In January 2000 he went to boot camp, and then
graduated from platoon honor guard, receiving the highest award for the top recruit.  He
became an infantrymen, was quickly promoted, and became a Sergeant in the Marine
Corps in three years.  Based upon his leadership skills, he was selected for advanced
infantry squad leader school.  He was a squad leader responsible for 10 to 15 Marines
at any given time.  When he went out on certain missions, he was responsible for 30
Marines with attachments.  He served in Iraq during the invasion.  Among other
accolades he received a Good Conduct Medal.  He was released from active duty in
2004.  He immediately enrolled in college and started taking classes to improve himself.
He worked as a body guard for four months, and was then laid off.  Since then he has
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held six or seven different jobs trying to find something suitable.  In 2009, he was hired
by his current employer and has been working full time since then.  (Tr. p. 50.)  
The delinquent debts set forth in the SOR were mainly accumulated after leaving
the military, and while he did not have steady full time work or financial stability.  Since
becoming gainfully employed in 2009 he is now earning approximately $46,500.00
annually, and he has been working hard to resolve his indebtedness.  (Tr. p. 50.)  He
has hired a credit and financial counseling service to help him improve his financial
awareness and to help him clean up his credit.  (Applicant’s Post-Hearing Exhibit C and
Tr. p. 56.)  He has paid off or resolved all but one of his delinquent debts.  He testified
that he soon plans to pay the debt owed to a creditor in the amount of $12,060.00 that is
set forth in 1(g) fo the SOR.  (Tr. p.  97.)  
The Applicant explained that he does not have a lot of the receipts because he
has been moving and has lost track of them.  (Tr. p. 51.)  He has, however, provided
documentary evidence concerning conversations he has had with the respective
creditors.  (Applicant’s Post-Hearing Exhibits D, E and F.)
The following debts have either been paid, are currently being paid through
regular monthly installments or are in dispute: 1(a). A debt owed to a creditor in the
amount of $302.00.  (Applicant’s Exhibit E.)  1(b). A debt owed to a creditor in the
amount of $1,368.00.  (Applicant’s Exhibit C.)  1(c).  A debt owed to a creditor in the
amount of $997.00.  (Applicant’s Exhibits H and I.)  1(d). A debt owed to a creditor in the
amount of $2,543.00.  (Applicant’s Post-Hearing Exhibit F.)  1(e). A debt owed to a
creditor in the amount of $1,511.00.  (Applicant’s Post-Hearing Exhibit F.)  1(f). A debt
owed to a creditor in the amount of $1,383.00.  1(j). A debt owed to a creditor in the
amount $544.00.  (Applicant’s Exhibit E.)  1(k). A debt owed to a creditor in the amount
of $120.00.  1(l). A debt owed to a creditor in the amount of $325.00 is in the process of
being removed from his credit report.  (Applicant’s Post-Hearing Exhibit D.)    
Based upon the evidence, in regard to allegations 1(h), and 1(i), the Government
moved to strike the allegations.  (Tr. p. 86.)  The tax lien in the amount of $42,579.00
owed to the Internal Revenue Service is not the Applicant’s debt, but his father’s who
has the same name.  (Tr. p. 56.)  1(i). The judgment owed to a creditor in the amount of
$2,053.00 is not the Applicant’s debt, but his father’s who has the same name.  (Tr. p.
57.)  The motion to strike was granted.  (Tr. p. 86.)  
  
Although the Applicant qualifies for a credit card, he does not want one.   He lives
a very simple life and does not overspend.
Paragraph 2 (Guideline E - Personal Conduct).  The Government alleges that the
Applicant is ineligible for a security clearance because he intentionally falsified material
aspects of his personal background during the security clearance process.
The Applicant denies the allegation set forth in the SOR under this guideline.
(See Applicant’s Answer to SOR.)  The Applicant completed a security clearance
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application dated July 10, 2009. (Government Exhibit 1.)  Question 26 states: “For the
following, answer for the last seven years, unless otherwise specified in the question.
Disclose all financial obligations including those for which you are a cosigner or
guarantor.”  Question 26(b), “Have you had any possessions or property voluntarily or
involuntarily repossessed or foreclosed?” 26(d), “Have you had a judgment entered
against you?” 26(g), “Have you had bills or debts turned over to a collection agency?”
26(k), ”Have you had your wages, benefits, or assets garnished or attached for any
reason?”  26(m), “Have you been over 180 days delinquent on any debts?” 26(p) “Are
you currently delinquent on any Federal debt?”  The Applicant answered, “No” to each
question and failed to disclose any of his delinquent debts set forth in the SOR.
The Applicant explained that it was during a live fire exercise with students when
he was called into his supervisor’s office and requested to complete the security
clearance application.  He stated that he was required to complete the application that
day and not to get up from the computer until he was finished.  He answered all of the
questions by recollection, as he had no references to go by with him.  He felt pressured.
He states that he answered all of the financial questions with a “No” because he did not
have the information on hand.  He stated that he was certainly not trying to hide
anything from the Government.  (Tr. p. 76 - 77.)  He further stated that he went to his
supervisor and told him that he did not have all of the information he needed to answer
the questions, and was led to believe that it was not that important.  (Tr. p.78.)  He now
realizes his lack of judgment and that he made a serious mistake that will never happen
again.              
Although the Applicant is no longer in the Marines, he still considers himself to be
one.  He states that he lives by the credence of honor, courage and commitment.  (Tr.
p. 84.)  During his military career, the Applicant received numerous medals, awards,
commendations and certificates for his outstanding service to our country.  (Applicant’s
Post-Hearing Exhibit B.)    
A number of letters of recommendation submitted on behalf of the Applicant from
his Platoon Commander in the Marines; several firefighters, one of whom works for the
Department of Defense; a Detective with a County Police Department; his site manager;
the Range Master where the Applicant is assigned, and several friends collectively
indicate that the Applicant is a responsible, unselfish, honest individual who is dedicated
to his job and considered a true asset to his company.  He is described as always
positive, a true leader, a man of integrity and honor, and an efficient professional at all
times.   He is highly recommended for a security clearance.  (Applicant’s Post-Hearing
Exhibit A.)  
A letter from the Applicant’s recent college professor is quite laudatory about the
Applicant’s character.  He considers the Applicant a person of good judgment, highly
trustworthy and responsible.  (Applicant’s Post-Hearing Exhibit G.)   
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POLICIES
When evaluating an Applicant’s eligibility for a security clearance, the
Administrative Judge must consider the disqualifying and mitigating conditions in the
Adjudicative Guidelines.  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
classified 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 security
clearance decision.  
A person who seeks access to classified 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 classified information.  Decisions include, by necessity, consideration
of the possible risk the Applicant may deliberately or inadvertently failed to protect or
safeguard classified 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:
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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. 
Conditions that could raise a security concern:
19.(a) inability or unwillingness to satisfy debts; and 
19.(c) a history of not meeting financial obligation. 
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 circumstances;
20.(c) the 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; and
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;
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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 
 
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 classified 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 security clearance is granted to only those defense
contractor employees who must be counted upon to safeguard such classified
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.
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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 security clearance.  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 security clearance and access to classified 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 security clearance eligibility.
The evidence shows that the Applicant’s excessive indebtedness was caused by
five years of job searching and under-employment after leaving the military in 2004.
During this period, he did not live beyond his means or spend lavishly.  Since becoming
employed in 2009, he has paid off or is currently making payments to resolve most of
his delinquent debt set forth in the SOR.  He has also hired a credit counselor to assist
him in resolving his debts.  Under the circumstances, and with the resources available
to him, he has done everything humanly possible to show that he is responsible,
trustworthy and reliable.  At this point, it is obvious that 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 20.(c) the 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; 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 clearly did not deliberately conceal material
information from the Government on his security clearance application concerning his
delinquent debts.  Admittedly, he was careless in answering the questions, but he was
not deceitful.  At the time he answered the questions, he did not have the information he
needed to answer the questions correctly and he even consulted his supervisor about it.
He credibly testified that he realizes his lack of judgment, and that he made a serious
mistake that will never happen again.  Accordingly, I find for the Applicant under
Guideline E (Personal Conduct.)  
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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 for a security clearance.  For all these reasons, I conclude
Applicant mitigated the security 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.       
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.
                                   Subpara.  1.j.: For the Applicant.
   Subpara.  1.k.: For the Applicant.
                                   Subpara.  1.l.: For the Applicant.
Paragraph 2: For the Applicant.
   Subpara.  2.a.: For the Applicant.
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DECISION
In light of the circumstances presented by the record in this case, it is clearly
consistent with the national interests to grant or continue a security clearance for the
Applicant.  
  Darlene Lokey Anderson
Administrative Judge