DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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----------------------------------   )       ISCR Case No. 10-00047
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Department Counsel
For Applicant: Joseph Testan, Attorney At Law
February 29, 2012
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
dated August 19, 2009.  (Government Exhibit 1.)  On August 2, 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 September 14, 2011, and he requested
a hearing before a DOHA Administrative Judge.  This case was assigned to this
Administrative Judge on November 30, 2011.  A notice of hearing was issued on
December 7, 2011, scheduling the hearing for January 18, 2012.  The Government
presented six exhibits, referred to Government Exhibits 1 through 6, which were
admitted without objection.  The Applicant called one witness (his ex-wife) to testify and
submitted thirteen documentary exhibits, referred to as Applicant’s Exhibits A through
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M, which were admitted without objection.  He also testified on his own behalf.  The
official transcript (Tr.) was received on January 26, 2012.  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 52 years old and divorced.  He is
employed by a defense contractor as a Crew Chief on an Aircraft Program, and 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 each of the delinquent debts set forth in the SOR, except
1(b).  (See, Applicant’s Answer to SOR.)  Credit reports of the Applicant dated August
27, 2009; September 20, 2010; April 4, 2011; and January 17, 2012, collectively reflect
that at one time each of the delinquent debts set forth in the SOR totaling approximately
$100,000 were at one time owing.  (Government Exhibits 3, 4, 5 and 6.)  
The Applicant has been working for his current employer for over twenty years.
He has held a security clearance since October 2007, and he has no security violations.
  
The Applicant and his wife were married in 1992.  His wife had two daughters
from a previous relationship that the Applicant has helped raise.  (Tr. p. 40.)  From 1992
to about 2005, the Applicant paid all of the household bills and handled the finances.
During that time he maintained good credit.  In 2006, the Applicant’s job required that he
deploy in and out of the country for extended periods of time, which varied from weeks
to as long as several months.  (Applicant’s Exhibit L.)  During this time, he earned as
much as $175,000 a year with per diem and hazardous duty pay.  (Tr. pp. 94 - 95.)  At
that point, he turned over the responsibility of paying the household bills to his wife.  He
gave her his check and trusted her to pay the bills.  He lived frugally and responsibly.
He initially tried to help his wife with the bill paying by leaving envelopes with
instructions on them for her, but she became upset and insulted.  At some point, the
Applicant allow her to handle the finances herself.  His wife assured him that she was
taking care of the bills without problems, and he believed her.  In reality, she was falling
behind on the bills and they were snowballing.
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By 2008, the Applicant realized that his wife was having some problems paying
the bills.  They took a credit counseling program designed for his wife to assist her with
paying the bills.  (Applicant’s Exhibits J and K.)  His wife assured the Applicant that the
credit counselors were automatically taking payments our of their checking account to
pay the bills.  The Applicant trusted his wife and believed her when she told him that the
bills were being taken care of, when in fact they were not.  
In 2009, the Applicant was interviewed by an investigator from the defense
department, and was stunned to learn that his wife had lied to him and had not been
paying their bills. (Tr. p. 67.)  His wife once again assured him that she was taking care
of their finances and making their payments.  
In 2010, the Applicant’s wages were garnished.  (Tr. p. 70.)  At this point, he
realized that his wife had been continually lying to him.  This time he confronted her and
she admitted that she had been lying to him.  She stated that she had hidden the late
bills and notices from bill collectors from him.  She hid the mail box key from him so he
was unable to access the mail.  She would also unplug the telephone so the telephone
would not ring with bill collectors.  
The Applicant’s wife testified that instead of paying the household bills, she would
give money to his daughter who had a baby, and whose husband was laid off from his
job.  She would also go to the casino and gamble.  (Tr. pp. 49-50.)    
In January 2011, the Applicant filed for divorce that was finalized in July 2011.
(Tr. p. 74.)  To resolve his excessive indebtedness, he hired an attorney and filed for
Chapter 13 bankruptcy relief in September 2011.  (Tr. pp. 74 -75 and Applicant’s
Exhibits A and C.)  Instead of discharging his debt, he wanted to pay his creditors what
he owed.  Although the payment plan has not yet been confirmed, the proposed
Chapter 13 bankruptcy has claims in the amount of approximately $62,000.  (Applicant’s
Exhibit B.)  The Applicant’s payments under the plan are anticipated to be between
$1,000 or $1,200 a month for five years to resolve the debt.  He has already made
several payments according to the plan and intends to follow through with it until he is
debt free.  (Applicant’s Exhibit D.)  
The Applicant has incurred no new debt since filing for Bankruptcy.  Since
divorcing his wife, he is current on all of his monthly expenses and is ahead on his
alimony.  His personal financial statement dated January 17, 2012, indicates that he is
current with all of his monthly expenses, and that after paying his bills, he has
discretionary funds left over at the end of the month.  (Applicant’s Exhibit M.)        
Letters of recommendation from the Applicant’s supervisor, coworkers and
customer describe the Applicant as honest, dependable, dedicated, hardworking,
skilled, valuable to the organization, and a person of integrity and high moral standards.
(Applicant’s Exhibit F.)   
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Applicant’s performance appraisals for 2007 through 2010 reflect that he has
either met, exceeded or far exceeded his job requirements in every category.
(Applicant’s Exhibit H)
The Applicant has also received awards and commendations for his work
performance.  (Applicant’s Exhibit G.)  
            
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 fail 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.
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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. 
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.
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;
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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,
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
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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
circumstances largely beyond his control, namely his irresponsible wife who was
supposed to be paying the bills while he was deployed.  For several years she lied and
misled the Applicant into believing that she was paying the bills, and that their
household finances were under control, when in fact they were not.  During this period,
the Applicant did not live beyond his means or spend lavishly.  He gave his check to his
wife with the understanding that she was to pay the bills.  Instead of paying their bills,
she gave money to her daughter and went to the casino to gamble.  Since realizing that
she lied to him, the Applicant divorced his wife, and filed for Chapter 13 bankruptcy to
resolve his delinquent debts.  Each of the debts listed in the SOR have been included in
the Chapter 13 bankruptcy petition.  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).  
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
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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.
Accordingly, the evidence supports a finding for the Applicant as to the factual and
conclusionary allegations expressed in Paragraph 1 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.
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