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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
 . )  ADP Case No. 11-00719 
  ) 
 ) 
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: Richard A. Stevens, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, THOMAS M., Administrative Judge: 
 
Based on a review of the case file, pleadings, exhibits, and testimony, eligibility 
for access to sensitive information is granted. 
 
On September 20, 2009, Applicant submitted a Questionnaire for Public Trust 
Position (SF 85P), as part of his employment with a defense contractor. After an 
investigation conducted by the Office of Personnel Management (OPM), the Defense 
Office of Hearings and Appeals (DOHA) issued an interrogatory to Applicant to clarify or 
augment potentially disqualifying information in his background. After reviewing the 
results of the background investigation and Applicant's response to the interrogatory, 
DOHA could not make the preliminary affirmative findings required to issue a security 
clearance. On May 27, 2011, DOHA issued to Applicant a Statement of Reasons (SOR) 
detailing trustworthiness concerns for financial considerations (Guideline F). 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); Department of Defense (DoD) Regulation 5200.2-R, Personnel 
Security Program, dated January 1987, as amended (Regulation); and the adjudicative 
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guidelines (AG) effective in the Department of Defense on September 1, 2006. 
Applicant acknowledged receipt of the SOR on June 7, 2011. 
 
 Applicant answered the SOR on June 16, 2011. He admitted one allegation 
(SOR 1.a) and denied the other six allegations under Guideline F. He requested a 
hearing before an administrative judge. Department Counsel was prepared to proceed 
on July 19, 2011, and the case was assigned to me on July 25, 2011. DOHA issued a 
Notice of Hearing on August 3, 2011, for a hearing on August 22, 2011. I convened the 
hearing as scheduled. The Government offered five exhibits which I marked and 
admitted into the record without objection as Government Exhibits (Gov. Ex.) 1 through 
5. Applicant and one witness testified. Applicant submitted six exhibits which I marked 
and admitted into the record without objection as Applicant Exhibits (App. Ex.) A 
through F. DOHA received the transcript (Tr.) of the hearing on September 7, 2011.  
 
Procedural Issues 
 
 Applicant received the notice of hearing on August 15, 2011, only seven days 
before the hearing. Applicant is entitled to 15 days advanced notice of hearing. 
(Directive E3.1.8.) Applicant discussed with Department Counsel the hearing date of 
August 22, 2011, prior to the Notice of Hearing being mailed on August 3, 2011. 
Applicant was ready to proceed and had sufficient time to prepare. He waived the 15 
days notice requirement. (Tr. 5-6) 
 
Findings of Fact 
 
 Applicant admitted one allegation and denied six allegations under Guideline F in 
the SOR. Applicant’s admission is included in my findings of fact. After a thorough 
review of the pleadings, transcript, and exhibits, I make the following essential findings 
of fact.   
 
 Applicant is 29 years old, and has been a senior server technician for a defense 
contractor for approximately two years. He is a high school graduate, single, with no 
children. He completed an associate’s degree at a technical school. (Tr. 12-14, 28-30; 
Gov. Ex. 1, SF 85P, dated September 20, 2009)  
 
 When Applicant was a college student his finances were good. He was attending 
his first semester of college when his mother, sister, and niece had a severe automobile 
accident in November 2002. His mother and niece were hospitalized for a period of 
time. Applicant immediately left school to help his mother in her recovery. He left so fast 
he was unable to make arrangements to turn off the utilities or phone service. In 
December 2003, Applicant started his own franchised janitorial service. His father had 
been a franchisee for the same company for years. Applicant’s franchise business was 
successful until October 2006 when he was severely injured in an accident at work and 
was immobile for over six months. He returned his franchise business to the franchise 
company and lost the income he had been receiving. After his recovery, he attended the 
technical school from May 2007 until May 2009. Applicant’s current yearly salary is 
$47,000. He is current with his student loans and taxes. His mother testified that he 
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helps support both her and his sister with approximately $200 each per month. (Tr. 38-
40) 
 
 Credit reports (Gov. Ex. 3, dated August 22, 2009; Gov. Ex. 4, dated January 16, 
2010; and Gov. Ex. 5, dated March 31, 2011), anD Applicant’s answers to the 
interrogatory (Gov. Ex. 2, dated March 16, 2011) show the following delinquent debts 
for Applicant; a medical collection account for $37,399 (SOR 1.a); a credit card 
collection account for $1,184 (SOR 1.b); a credit card debt charged off for $376 (SOR 
1.c); a gym membership debt in collection for $1,548 (SOR 1.d); a utility bill in collection 
for $562 (SOR 1.e); a telephone account in collection for $430 (SOR 1.f); and a medical 
account in collection for $254 (SOR 1.g). The debts arose when he abruptly left his 
apartment to care for his mother without making arrangements for the utilities or as a 
result of his accident at work. Applicant’s latest credit report lists most debts, including 
student loans, as current or paid. The only delinquent debts listed on Applicant’s latest 
credit reports are the medical debt listed at SOR 1.a, and the medical debt listed at 
SOR 1.g. Applicant paid a telephone debt of $2,359 incurred by his family when he 
allowed his mother and sister to be part of his phone plan. He also paid a $854 cable 
debt that was incurred when his mother did not pay the bill even though Applicant 
provided her with the funds to do so. (Tr. 27-33; App. Ex. A, Credit Report, dated June 
8, 2011; App. Ex. E, Credit Report, dated August 18, 2011) 
 
 Applicant was the franchise owner of a janitorial service from December 2003 
until October 2006. In October 2006, Applicant fell down a flight of stairs while working 
and severely broke and injured his ankle. His company did not have health insurance. 
He required extensive medical treatment and was on bed rest for over four months. He 
gave up the franchise since he was physically unable to continue the janitorial work. All 
of the medical costs associated with treatment of his injury were consolidated and listed 
at SOR 1.a, except for the $254 medical debt at SOR 1.g for medical equipment 
required after he injured his ankle. Applicant has been unable to pay the debts. 
However, he discussed the debts with the creditors and collection agency. The 
collection agency offered a settlement agreement of either a lump sum payment of 
$29,000, or monthly payments of $450 until the debt is satisfied. As noted below, 
Applicant just prior to the hearing completed paying the debt at SOR 1.b. He will start 
making monthly payments on the medical debt settlement in September 2011. He will 
also pay the medical equipment supplier now that he has the funds. (Tr. 30-33) 
 
 The debt at SOR 1.b was for his technical school tuition. He settled the debt for 
$1,000, with a payment of $800 in June 2011, and $200 in July 2011. (Tr. 24-26; App. 
Ex. F, Cancelled checks, June 30, 2011, and July 30, 2011) 
 
 The credit card debt at SOR 1.c was for a credit card Applicant’s father opened in 
Applicant’s name when he was only 13 year old. Applicant never knew the credit card or 
the debt existed. He disputes the debt and it is no longer on his credit report. (Tr. 33-34; 
App. Ex. A, Credit Report, dated June 8, 2011; App. Ex. E, Credit Report, dated August 
18, 20110 
  
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 The debt listed at SOR 1.d is for a gym membership. Applicant and his sister 
entered a joint two year gym membership in 2004. After paying for approximately six or 
seven months, his sister stopped paying her part of the bill when she lost her job. 
Applicant tried to pay the debt to the gym but they had no record of the debt since it was 
sent for collection. He contacted the collection agency but they also had no record of 
the debt. He has a present current membership with the gym. (Tr. 34-35, 42-44) 
 
 The utility debt for $562 at SOR 1.e was incurred when Applicant abruptly left his 
apartment when his mother had an accident and was hospitalized. He left the heat on 
and did not return to turn it off. He contacted the utility company to settle the debt but 
they have no record of the debt since the debt was sent for collection. The collection 
agency also had no record of the debt. Applicant is unable to pay the debt. The debt is 
no longer on his credit report. (Tr. 35-37) 
 
 The telephone debt at SOR 1.f was also incurred when Applicant left his 
apartment after his mother’s accident. Most of the debt is for penalties and interest. He 
tried to pay the debt but the telephone company and the collection agency do not have 
a record of the debt. (Tr. 41-42) 
 
 Applicant is a highly regarded employee. His performance rating shows that he 
meets or exceeds expectations. He was commended by his instructors in technical 
school for his work habits, integrity, responsibility, and academic achievements. He was 
a student leader who was organized, smart, and dedicated. (App. Ex. D, Letters, dated 
April 6, 2009; App. Ex. C, Performance Review, dated June 16, 2011) 
 
Policies 
 
Positions designated as ADP I and ADP II are classified as “sensitive positions.” 
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.” Trustworthiness adjudications will apply to cases forwarded to DOHA 
by the Defense Security Service and Office of Personnel Management. (See, The 
Deputy Under Secretary of Defense (Counterintelligence and Security) Memorandum, 
dated November 19, 2004) 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 or a sensitive 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 overarching 
adjudicative goal is a fair, impartial and commonsense decision. 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. (AG ¶ 2(c)) 
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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, an 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 for 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 safeguard 
sensitive information. Such decisions entail a certain degree of legally permissible 
extrapolation of potential, rather than actual, risk of compromise of sensitive information. 
 
Analysis 
 
Guideline F, Financial Considerations 
 
There is a public trust concern for a failure or inability to live within one=s means, 
satisfy debts, and meet financial obligations because such actions 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. (AG ¶ 18) Similarly, an individual who is 
financially irresponsible may also be irresponsible, unconcerned, or careless in his or 
her obligation to protect sensitive information. Behaving responsibly or irresponsibly in 
one aspect of life provides an indication of how a person may behave in other aspects 
of life. 
 
 A person’s relationship with his creditors is a private matter until evidence is 
uncovered demonstrating an inability or unwillingness to repay debts under agreed 
terms. Absent evidence of strong extenuating or mitigating circumstances, an applicant 
with a history of serious or recurring financial difficulties is in a situation of risk 
inconsistent with the holding of a public trust position. An applicant is not required to be 
debt free, but is required to manage his finances in such a way as to meet his financial 
obligations. Applicant’s delinquent debts, as established by credit reports and 
Applicant’s answers to questions in the interrogatory, are a security concern raising 
Financial Consideration Disqualifying Conditions (FC DC) ¶ 19(a) (inability or 
unwillingness to satisfy debts), and FC DC ¶ 19(c) (a history of not meeting financial 
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obligations). The delinquent debts show a history of not meeting financial obligations 
because of an inability, and not unwillingness, to satisfy debt. 
 
 I considered Financial Considerations Mitigating Conditions (FC MC) ¶ 20(a) (the 
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), and FC MC ¶ 20(b) (the 
conditions that resulted in the financial problems 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). Both of these mitigating conditions apply to Applicant's 
financial problems.  
 
 Applicant was reasonably managing his finances until his mother was involved in 
an automobile accident and he left college to assist her. The debts were incurred 
because of the hasty departure from his apartment. He again incurred delinquent 
medical debts when he severely injured his ankle on the job. His medical costs were not 
covered by health insurance. The accidents that caused the financial problems were not 
the fault of Applicant and were beyond his control. Applicant acted responsibly by 
contacting his creditors and attempting to reach settlement plans. He paid or is paying 
on the payment plans he was able to negotiate. Applicant established a pattern of acting 
responsibly towards his finances. His present credit report shows his debts are current 
indicating his financial management is sound and responsible. It is unlikely that he will 
have additional or recurring financial problems. His past-due debts do not cast doubt on 
his reliability, trustworthiness, and good judgment.  
 
 I have considered FC MC ¶ 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). Applicant did not present any information concerning 
financial counseling. However, his present credit report shows his financial problems 
are being resolved or are under control. 
 
I considered FC MC ¶ 20(d) (the individual initiated a good-faith effort to repay 
the overdue creditors or otherwise resolve debts) and it applies. For FC MC ¶ 20(d) to 
apply, there must be an “ability” to repay the debts, the “desire” to repay, and “evidence” 
of a good-faith effort to repay. Good faith means acting in a way that shows 
reasonableness, prudence, honesty, and adherence to duty and obligation. A 
systematic method of handling debts is needed. Applicant must establish a "meaningful 
track record" of debt payment. A "meaningful track record" of debt payment can be 
established by reduction of debt through payment of debts. All that is required is that 
Applicant demonstrates he has established a plan to resolve his financial problems and 
has taken significant actions to implement that plan.  
 
Applicant’s debts were incurred by conditions beyond his control. He paid one of 
the SOR debts in full. He also paid other debts in full not listed on the SOR. One SOR 
debt was not his debt but his father’s debt. He was unable to make payments on three 
debts because the creditors did not have sufficient records or information to determine 
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his responsibility for the debt and accept payments. He has received settlement offers 
on the two big medical debts incurred when he was injured on the job. He will start to 
make payments according to the settlement agreement. He is current with his taxes and 
student loans. Applicant's financial management of his debts provides significant and 
credible information to establish a meaningful track record of debt payment. His actions 
are reasonable and prudent under his financial circumstances and shows honesty and 
an adherence to his financial duties and obligations. He established a good-faith effort 
to repay his creditors and resolve debt. His reasonable and responsible efforts indicate 
that his past delinquent debts do not reflect adversely on his trustworthiness, honesty, 
and good judgment. He has mitigated public trust concerns based on financial 
considerations. 
 
Whole-Person Concept 
 
 Under the whole-person concept, an 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) the 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.   
 
 I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. I considered that Applicant is a 
trusted and highly regarded employee with a good work record and reputation for 
honesty, reliability, and trustworthiness. Most of Applicant's debts were incurred by 
circumstances beyond his control. He acted responsibly by contacting creditors and 
arranging payment plans when he could. Most of the creditors did not have records of 
his debts and they could not present him with a payment plan. He paid those debts he 
could and is current with his present debts. The record evidence leaves me without 
questions and doubts about Applicant’s eligibility and suitability for a public trust 
position. For all these reasons, I conclude Applicant has mitigated the trustworthiness 
concerns arising from his financial situation.  
 
 
 
 
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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 
 
  Subparagraphs 1.a - 1.g:  For Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with the national interest to grant Applicant eligibility for a public trust 
position. Eligibility for access to sensitive information is granted. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge