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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ADP Case No. 10-06574 
  ) 
  
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: Richard 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 denied. 
 
Statement of the Case 
 
On October 21, 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, the Defense Office of 
Hearings and Appeals (DOHA) issued two interrogatories to Applicant to clarify and 
augment information from the investigation. On April 8, 2011, DOHA issued to Applicant 
a Statement of Reasons (SOR) detailing trustworthiness concerns for 15 allegations of 
delinquent debt under financial considerations (Guideline F), and one allegation of 
personal conduct (Guideline E). 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 guidelines (AG) effective in the 
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Department of Defense on September 1, 2006. Applicant acknowledged receipt of the 
SOR on April 19, 2011. 
 
 Applicant answered the SOR on April 27, 2011. He admitted two of the financial 
consideration allegations (SOR 1.a and 1.b) and denied the remaining financial 
consideration allegations and the personal conduct allegation. He requested a hearing 
before an administrative judge. Department Counsel was prepared to proceed on June 
13, 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 
testified and submitted two exhibits which I marked and admitted into the record without 
objection as Applicant Exhibits (App. Ex.) A and B. I left the record open for Applicant to 
submit additional documents. Applicant timely submitted one additional document which 
I marked and admitted into the record without objection as App. Ex. C. Department 
Counsel had no objection to admission of the document. (Gov. Ex. 6, Memorandum, 
dated September 12, 2011). DOHA received the transcript (Tr.) of the hearing on 
September 7, 2011.  
 
Procedural Issues 
 
 Applicant received the written notice of hearing on August 10, 2011. Applicant is 
entitled to 15 days advance 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 on August 22, 
2011, and stated that he had sufficient time to prepare. He waived the 15-day notice 
requirement. (Tr. 7-8) 
 
Findings of Fact 
 
 Applicant admitted two and denied the remaining 13 allegations under Guideline 
F. He denied the one allegation under Guideline E. After a thorough review of the 
pleadings, transcript, and exhibits, I make the following essential findings of fact.   
 
 Applicant is 32 years old and has been a computer systems engineer for a 
defense contractor since 2009. He is a high school graduate with an associate’s degree 
in computer technology. He has never married but has a ten year old daughter that he 
supports. He has not served in the military. Applicant’s net monthly pay is $2,000. He 
also has a part-time position earning $400 to $600 monthly. His monthly expenses are 
about $1,600, leaving about $700 to $900 in monthly discretionary funds. (Tr. 12-13, 53-
56)  
 
 Applicant was employed at a mill for over eight years. His pay was over $35,000 
annually, and he had excellent health benefits. He did not have delinquent debt. The 
mill closed in December 2007, and he was laid off. His severance package was less 
than $1,000. During the next year, he worked a few months under a temporary agency 
for his present employer. When the temporary position was completed, he went to 
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school full time to earn an associate’s degree. He used unemployment benefits for living 
expenses and student financial aid to pay his tuition. He also had a temporary seasonal 
position with a package delivery company from November 2008 until January 2009. He 
was hired full time by the defense contractor employer in October 2009. His annual pay 
with the defense contractor is $24,000. (Tr. 23-31)  
 
 Credit reports (Gov. Ex. 4, dated October 24, 2009, and Gov. Ex. 5, dated 
September 24, 2010), and Applicant’s response to Interrogatories (Gov. Ex. 2, and Gov. 
Ex. 3, dated October 26,  2010) show the following delinquent debt for Applicant: a 
credit card in collection for $14,476 (SOR 1.a); a cell phone debt in collection for $377 
(SOR 1.b); a debt to an internet service provider in collection for $267 (SOR 1.c); a 
mortgage account for $27,830 more than 180 days past due on a mobile home (SOR 
1.d); and 11 medical debts in collection for $189 (SOR 1.e), $83 (SOR 1.f), $570 (SOR 
1.g), $233 (SOR 1.h), $194 (SOR 1.i), $26 (SOR 1.j), $17 (SOR 1.k), $18 (SOR 1.l), 
$32 (SOR 1.m), $137 (SOR 1.n), and $184 (SOR 1.o). The total amount of the 
delinquent debt is approximately $17,000. 
 
 Applicant had one credit card prior to being laid off from his job at the mill. The 
maximum limit for the card was $8,000. While employed at the mill, he always paid the 
card as agreed. After losing his job, he used the card to make child support payments, 
car payments, and purchase necessities such as food. He believes the original amount 
that he charged was only $7,000 and the remaining portion of the debt is due to interest 
and penalties. He has not made any payments on the credit card debt and has had no 
contact with the creditor in three to four years. (Tr. 33-36, 56) 
 
 The delinquent debt at SOR 1.b is for Applicant’s previous cell phone. He stated 
he made a $100 payment on the debt about a month before the hearing but was unable 
to provide a receipt for the payment. Applicant has not made any other payment. (Tr. 
36-37, 56) 
 
 The delinquent debt at SOR 1.c is for Applicant’s previous internet service. When 
Applicant moved from his house when he was laid off, he notified the internet service 
provider of the move and told them to discontinue the service. The provider did not 
immediately stop service and charged Applicant for two additional months. Applicant 
disputed the charge with the service provider by voice over the telephone. He did not 
file a written dispute. He has no further information on the dispute. (Tr. 37-38, 56) 
 
 The delinquent debt at SOR 1.d is for payments on the mobile home owned by 
Applicant’s mother. He resides with her. He believes his mother purchased the house 
for approximately $32,000 11 years ago. The payments are $380 per month. He helps 
his mother with the payments. He believes his mother may have been a month or two 
behind in payments. After the hearing, Applicant provided a receipt to show two months 
of payments. It appears the payments are current. (Tr. 39-43, 56; App. Ex. C, Receipt, 
dated September 3, 2011) 
 
 The remaining debts are medical debts. When Applicant worked in the mill, he 
had health insurance and no medical debts. When he was laid off, he lost his health 
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insurance 30 days after the lay off. Since he has been working for the defense 
contractor, he also has good health insurance. Applicant had emergency room visits in 
2007 for migraine headaches. He did not have health insurance at the time and 
remembers receiving mail concerning medical bills from collection agencies. He also 
injured his ankle in 2004 and was treated at the hospital. He does not believe the debts 
were from co-pays for doctor visits since he had to pay the co-pays before he could see 
the doctor. He contacted the collection agency to determine the origin of the debts. The 
collection agency could not provide him with sufficient information to determine the 
nature of each debt. He is not even sure that whether all of the debt and bills belong to 
him. His father has the exact same name as Applicant. However, his father has had 
good health insurance coverage for almost 30 years. Applicant has only received 
negative results from the collection agency. He has not contacted the hospital or the 
medical provider to learn if they can provide him information on the bills. He has not 
made payments on the debts. (Tr. 44-49, 54-55) 
 
 When Applicant realized his credit would be an issue for his employment, he 
knew he needed financial assistance but did not know how to proceed. He contacted his 
local bank for assistance. The bank provided him with a service to protect his financial 
identity and to daily monitor his credit report. They did not provide him assistance in 
paying or resolving his delinquent debts. (Tr. 50-52; App. Ex. A, Credit Monitoring 
Pamphlet, undated. App. Ex. B, Daily Monitoring Alert, dated August 11, 2011).  
 
 When Applicant completed the Application for a Position of Public Trust on 
October 21, 2009, he listed only the debt at SOR 1.a in response to the question at 
Section 22b that asked if he had any debts more than 180 days delinquent. In fact he 
had medical and other debts that were more than 180 days delinquent. However, the 
Government noted that Applicant listed his most significant delinquent debt on the 
application, and that it is questionable whether he knew of some of the other debts or 
knew other debts were more than 180 days delinquent. The Government conceded 
there was insufficient information to establish that Applicant deliberately failed to inform 
the Government of his delinquent debts past-due over 180 days with the intent to 
deceive. (Tr. 57-60) 
 
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.)  
  
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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)) 
 
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. 
 
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 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 statements, testimony, and admissions, 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 
obligations). Applicant incurred delinquent debt when he was laid off from a position in a 
mill that paid well. He was unemployed, except for short periods, from December 2007 
until October 2009. When he finally found employment, his yearly salary went from 
$35,000 to his present yearly salary of $24,000. This information indicates there may be 
both an inability and an unwillingness to satisfy debts. 
 
 The Government produced substantial evidence to establish the disqualifying 
conditions as required in AG ¶¶ 19(a) and 19(c). The burden shifts to Applicant to 
produce evidence to rebut, explain, extenuate, or mitigate the security concerns under 
financial considerations. An applicant has the burden to refute an established allegation 
or prove a mitigating condition, and the burden to prove or disprove it never shifts to the 
Government. 
 
 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 separations and the individual acted responsibly 
under the circumstances). These mitigating conditions have some applicability to 
Applicant's financial problems. Applicant incurred delinquent debt when he was laid off 
from a job with good pay and was only sporadically employed from December 2007 until 
October 2009. During this period of unemployment, he used his time productively to get 
an associate’s degree that enhanced his employment opportunities. The causes of his 
financial problems were unusual, beyond his control, and are unlikely to recur. However, 
he has not acted responsibly and reasonable under the circumstances. While he has 
made some efforts to contact creditors, his efforts have been only minimal and 
ineffective. He has not paid any of the delinquent SOR debts. One debt for the mobile 
home mortgage has been made current by his mother, the owner of the house.  
Applicant has not established a pattern of acting responsibly towards his finances, so 
his past-due debts 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). This mitigating condition does not apply. Applicant 
contacted his bank when he realized his credit was an issue. However, the bank did not 
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provide him assistance but only daily credit monitoring. It did nothing to assist him in 
paying past-due obligations. His financial problems are not being resolved and are not 
under control. 
 
I considered FC MC ¶ 20(d) (the individual has initiated a good-faith effort to 
repay the overdue creditors or otherwise resolve debts) and it does apply. 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 evidence of actual debt payments or reduction of debt through payment 
of debts. An applicant is not required to establish that he paid each and every debt 
listed. All that is required is that Applicant demonstrates an established plan to resolve 
his financial problems and shows he has taken significant actions to implement that 
plan.  
 
Applicant did not present any information to establish that he paid any of the 
delinquent debts. He did present information that his mother, the owner of the mobile 
home, is current with the mortgage payments. He attempted to contact some of the 
creditors but his attempts were limited. He has not made any payments or established 
any payment plans for any of the delinquent debts. Applicant claims he made a 
payment on one debt and disputed another. He provided no documentation at the 
hearing to support his assertions. Applicant was provided the opportunity after the 
hearing to present documentation of debt payments and disputes filed. He did not 
present any post-hearing documents on these issues. Without documentation, I cannot 
give him credit for either the payment or the dispute. Applicant contacted the collection 
agency on the medical debts but they were unable to provide him any information on 
the medical debts. He has not taken the opportunity to contact the medical provider or 
the hospital to learn the nature and origin of the medical debts. Some of these debts are 
small and could easily be paid within the discretionary funds Applicant has each month. 
He just has to determine they are his debts. He can learn this information from the 
hospital or the medical providers. Applicant’s lack of sufficient action shows he has not 
acted responsibly towards his debts. He has not presented sufficient information to 
mitigate public trust concerns for financial considerations. His finances create and 
establish a public trust concern. 
 
Personal Conduct 
 
 A trustworthiness concern is raised for personal conduct based on Applicant's 
responses to financial and employment questions on his SF 85(P). Personal conduct is 
a trustworthiness concern because conduct involving questionable judgment, 
untrustworthiness, unreliability, or unwillingness to comply with rules and regulations 
can raise questions about an individual’s reliability, trustworthiness, and ability to protect 
sensitive information. Of special interest is any failure to provide truthful and candid 
answers during the process to determine eligibility for a public trust position or any other 
failure to cooperate with this process (AG ¶ 15). Personal conduct is always a 
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trustworthiness concern because it asks whether the person’s past conduct justifies 
confidence the person can be trusted to properly safeguard sensitive information. 
Authorization to hold a public trust position depends on the individual providing correct 
and accurate information. If a person conceals or provides false information, the 
trustworthiness process cannot function properly to ensure that granting access to 
sensitive information is in the best interest of the United States Government.  
 
 Applicant, on his application for a public trust position, listed only one debt as 
more than 180 days past due. His failure to list his other debts past-due more than 180 
days raises a public trust concern under Personal Conduct Disqualifying Condition (PC 
DC) AG ¶ 16(a) (the deliberate omission concealment, or falsification of relevant and 
material facts from any personnel security questionnaire, personal history, or similar 
form used to conduct investigations, to determine security eligibility or trustworthiness).  
 
Applicant denied an intentional falsification for the incorrect or missing material 
information on the application. While there is a security concern for an omission, 
concealment, or falsification of a material fact in any written document or oral statement 
to the Government when applying for a security clearance, not every omission, 
concealment, or inaccurate statement is a falsification. A falsification must be deliberate 
and material. It is deliberate if it is done knowingly and willfully with intent to deceive. 
The Government conceded that since Applicant listed his largest debt in response to the 
question concerning debts more than 180 days past-due, and it is not clear that his 
other debts were either past-due or past-due more than 180 days. The Government has 
agreed that there is no information to establish an intentional falsification by Applicant 
with intent to deceive.  
 
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.   
 
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 I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. I consider that Applicant incurred 
delinquent debt under unusual circumstances that were beyond his control. I also 
considered that he has sufficient discretionary funds to pay and resolve his delinquent 
debts.  
 
Applicant has not established that he took positive action to resolve his financial 
problems. He has not established that he has paid any of the debts except for the 
mobile home mortgage which is really his mother’s debt that she made current. He has 
not established that he made sufficient attempts to contact his creditors and resolve his 
debts. He made only limited contact with his creditors. When he was told that the 
collection agencies did not have sufficient information to identify debts, he made no 
further inquiry on the medical debts from the medical provider or the hospital. He did not 
contact the creditors for his largest debt on a credit card as well as a cell phone bill. He 
disputed a bill for an internet service provider but provided no documentation to 
substantiate the dispute. Applicant was provided the opportunity after the hearing to 
present documentation on his financial actions, but he provided only a document to 
show the mobile home payments were current. Applicant has not established a history 
of responsible resolution of his debts.  
 
The record evidence leaves me with questions and doubts about Applicant’s 
eligibility and suitability for a public trust position. For all these reasons, I conclude 
Applicant has not mitigated the trustworthiness concerns arising from his financial 
situation. The personal conduct security concern is resolved in favor of Applicant.  
 
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.c:  Against Applicant 
 
  Subparagraph 1.d:   For Applicant 
 
  Subparagraphs 1.e – 1.o:  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. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge