DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
   
In the matter of: )
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---------------------------------- )       ISCR Case No. 10-07411
)
)
Applicant for Security Clearance )
Appearances
For Government: Paul M. Delaney, Department Counsel
For Applicant: Pro se
October 25, 2011
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on July 6, 2010.  (Government Exhibit 5.)  On May 2, 2011, the Defense Office
of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department
of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as amended), issued a
Statement of Reasons (SOR) to the Applicant, which detailed 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 a security clearance for the
Applicant and recommended referral to an Administrative Judge to determine whether
clearance should be denied or revoked.
The Applicant responded to the SOR on May 18, 2011, in which he elected to
have the case determined on a written record in lieu of a hearing.  Department Counsel
submitted  the Government’s File of Relevant Material (FORM) to the Applicant on July
26, 2011.  The Applicant was instructed to submit information in rebuttal, extenuation or
mitigation within 30 days of receipt.  Applicant received the FORM on August 5, 2011,
and he submitted no reply.  The case was assigned to the undersigned for resolution on
October 5, 2011.  Based upon a review of the case file, pleadings and exhibits, eligibility
for access to classified information is denied.
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 FINDINGS OF FACT
The Applicant is 62 years old and is an ordained minister.  He is employed as a
Chaplain with a defense contractor and 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).  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 clearance because he is financially overextended and at risk of
having to engage in illegal acts to generate funds.      
The Applicant admits that he is indebted to the Internal Revenue Service for
back taxes owed in the amount of $23,443.45.  Credit Reports of the Applicant dated
October 29, 2010; and July 27, 2010, collectively reflect that the Applicant is indebted to
this tax authority.  (Government Exhibits 7 and 8.)     
The Applicant claims that his home construction business was negatively
impacted by the events of September 11, 2001.  As a result of the terrorist attacks, the
United States economy declined and home sales decreased.  The Applicant’s
construction business suffered greatly as illegal immigrants were taking jobs at lower
wages than those legally employable.  As a result, he was unable to pay all of his
business debts and he could not find work.  
He was unemployed and retired from about May 1998, worked part time as a
Molder-Foundry from about April 2006 to May 2008, and then started working in his
current position as a Chaplain in about November 2008, where he has worked full time
since then.  He claims that over the past ten years he has worked and slowly paid off
the debt.  In August 2003, a federal tax lien in the approximate amount of $23,443 was
filed against the Applicant for unpaid taxes owed for tax years 1998, 1999 and 2000.
He has not paid this delinquent tax debt.  Instead, he argues that the statute of
limitations is enforceable, as the debt has passed the ten years statutory enforcement
period and he is no longer required by law to pay it.  He cities Internal Revenue Service
Code Section 6343 and Section 6502 to support his position. 
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POLICIES
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. 
Conditions that could raise a security concern:
19.(a) inability or unwillingness to satisfy debts; and, 
19.(c) a history of not meeting financial obligations. 
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.
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 and surrounding
circumstances;
     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 behavior
changes;
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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, the security of classified industrial secrets is entrusted to
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
clearance may be involved in instances of financial irresponsibility, 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
holding of 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 or her a security clearance.
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
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the scope and nature of the Applicant's conduct, I conclude there is a nexus or
connection with his security clearance eligibility.
The Applicant argues that circumstances largely beyond the Applicant’s control,
namely, the consequences of September 11, 2001, and its adverse effects on the
economy, negatively effected his construction business.  As a result the Applicant
incurred tax debt that has remained unpaid and unresolved for many years, including
years in which he was employed.  He has not shown a good faith effort to resolve the
debt with the IRS nor has he addressed it in any fashion.  He has not shown that he has
acted prudently or responsibly in managing his finances in order to pay the debt and
has not shown a firm commitment and/or a financial plan in place to do so.  Although he
argues that the statute of limitations applies and he is no longer required by law to pay
the debt, he provides no supporting documentation to substantiate this.  Furthermore,
even if Applicant’s contention is legally correct, this does not mitigate the fact that he
has a federal debt to the IRS that has remained unpaid for over ten years. 
Under the particular circumstances of this case, the Applicant has not made a
good faith effort to resolve his past due indebtedness.  He obviously does not
understand the importance of demonstrating that he is financially responsible.  Simply
asserting a legal technicality that may relieve him from his legal obligation to pay the
debt does not demonstrate that he can properly handle his financial affairs or that he is
fiscally responsible.  The evidentiary record in this matter is void as to mitigation.
Considering all of the evidence, the Applicant has not introduced persuasive evidence in
rebuttal, explanation or mitigation that is sufficient to overcome the Government's case. 
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.  Mitigating Condition 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 also applies, but is not controlling
in this case.  The Applicant remains indebted to the IRS for back taxes that he has not
paid.  Accordingly, I find against the Applicant under Guideline F (Financial
Considerations).    
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 above, when viewed under all of the guidelines as a
whole, support a whole-person assessment of poor judgement, untrustworthiness,
unreliability, a lack of candor, and an unwillingness to comply with rules and regulations,
and/or other characteristics indicating that the person may not properly safeguard
classified information.
  
I have considered all of the evidence presented.  It does not mitigate the negative
effects of his financial indebtedness and the effects that it can have on his ability to
safeguard classified information.  On balance, it is concluded that the Applicant has
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failed to overcome the Government's case opposing his request for a security
clearance.  Accordingly, the evidence supports a finding against the Applicant as to the
factual and conclusionary allegations expressed in Paragraph 1 of the SOR.   
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: Against the Applicant.
        Subpara.  1.a.: Against the Applicant.
  DECISION
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue a security clearance for
the Applicant.
  Darlene Lokey Anderson
Administrative Judge