1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-05241 ) Applicant for Security Clearance ) Appearances For Government: Gregg A. Cervi, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ HENRY, Mary E., Administrative Judge: Based upon a review of the pleadings, exhibits, and testimony, Applicant’s eligibility for access to classified information is granted. Statement of the Case Applicant signed an Electronic Questionnaire for Investigations Processing (e- QIP) on January 26, 2011. The Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) on August 9, 2011, detailing security concerns under Guideline F, financial considerations, that provided the basis for its preliminary decision to deny him a security clearance. 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); and the Adjudicative Guidelines For Determining Eligibility for Access to Classified Information (AG) implemented on September 1, 2006. 2 Applicant received the SOR on August 12, 2011. He answered the SOR on September 1, 2011 and requested a hearing before an administrative judge. DOHA received the request, and Department Counsel was prepared to proceed on October 26, 2011. I received the case assignment on November 1, 2011. DOHA issued a Notice of Hearing on November 17, 2011, and I convened the hearing as scheduled on December 6, 2011. The Government offered exhibits marked as GE 1 through GE 5, which were received and admitted into evidence without objection. Applicant testified. He submitted exhibits marked as AE A through AE J, which were received and admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on December 13, 2011. I held the record open until January 15, 2012, for Applicant to submit additional matters. Applicant timely submitted AE K - AE Q, which were marked and admitted without objection. The record closed on January 15, 2012. Procedural and Evidentiary Rulings Notice Applicant received the hearing notice on November 28, 2011, less than 15 days before the hearing. (Tr. 7.) I advised Applicant of his right under ¶ E3.1.8 of the Directive to receive the notice 15 days before the hearing. Applicant affirmatively waived his right to the 15-day notice. (Id.) Evidence Subsequent to the close of the record, Applicant submitted two additional documents for inclusion in the record. Applicant’s submission is treated as a Motion to Reopen the Record. Department Counsel objected to the admission of the additional evidence on the grounds that the evidence is untimely. Department Counsel’s objection is treated as a response to Applicant’s motion. Applicant’s latest submissions supplement and clarify information previously submitted by Applicant and issues discussed at the hearing. This evidence does not raise new issues. Although Applicant’s latest evidence is untimely, Department Counsel’s objections are overruled as Department Counsel has not shown that the Government would be prejudiced by the submission of this evidence. Applicant’s motion is granted, and the record is reopened for the admission of AE R and AE S into the record. Findings of Fact In his Answer to the SOR, Applicant admitted the factual allegations in ¶ 1.c of the SOR. His admission is incorporated herein as a finding of fact. He denied the factual W hen SOR allegations are controverted, the Government bears the burden of producing evidence sufficient1 to prove controverted allegations. Directive, ¶ E3.1.14. “That burden has two components. First, the Government must establish by substantial evidence that the facts and events alleged in the SOR indeed took place. Second, the Government must establish a nexus between the existence of the established facts and events and a legitimate security concern.” See ISCR Case No. 07-18525 at 4 (App. Bd. Feb. 18, 2009), (concurring and dissenting, in part) (citations omitted). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 08-06605 at 3 (App. Bd. Feb. 4, 2010); ISCR Case No. 08-07290 at 2 (App. Bd. Nov. 17, 2009). Applicant asserted that these allegations were the same debt. He admitted the debt, which is discussed infra.2 GE 1; AE A; AE D; AE E.3 GE 1; GE 2; Tr. 19.4 Tr. 20-21.5 3 allegations in ¶¶ 1.a and 1.d of the SOR. He neither admitted nor denied the1 allegations in ¶¶ 1.b and 1.e of the SOR. He also provided additional information to2 support his request for eligibility for a security clearance. After a complete and thorough review of the evidence of record, I make the following additional findings of fact. Applicant, who is 40 years old, works as a test engineer for a Department of Defense contractor. He began his current employment in December 2010. He has worked in computer test engineering for 15 years. Three co-workers, who worked with him in the past and now work with him at his current job, wrote letters of recommendation. All describe him as hard-working, reliable, dependable, and trustworthy. They view him as a man of character and integrity. One co-worker knows about his financial problems and briefly discussed the reasons for Applicant’s financial problems and his handling of these problems.3 Applicant married his first wife in 1990 at the age of 19. They separated in 2006, and their divorce finalized in 2007. He married his second wife in December 2009. He has three children. His two sons are 18 and 14 years old, and his daughter is 17 years old. He also has three stepchildren, who 19, 15, and 12 years old. The oldest stepchild graduated from high school and is now in the United States military. Applicant attends college, and is working toward a bachelor’s degree in religion.4 In late 2006 or early 2007, Applicant sustained an injury to his shoulder, which required surgery. He did not work for three months. During this time, Applicant received disability income, which was less than his regular income. His reduced income impacted his ability to fully pay his living expenses.5 When Applicant and his first wife decided to separate in 2006, they agreed that she would live in the marital home and that she would pay the mortgage. He moved out of the house, and shortly thereafter, he signed a contract to buy a house for himself. He Response to SOR; GE 3; Tr. 24. There is some confusion in the record on the principal amount of Applicant’s6 primary mortgage loan on his house. After a review of the information in the record, I find that the primary mortgage loan was $300,000. Tr. 47.7 AE N; Tr. 43-44.8 GE 3 - GE 5; AE H; AE I; AE L; AE N; Tr. 20-21, 26-27, 41-42, 47.9 4 purchased his house for $375,000 in August 2006. He paid for his house with a $300,000 primary mortgage and a $75,000 second mortgage.6 Less than two weeks prior to the settlement on his new house, Applicant’s first wife informed him that she had purchased a house and did not want to live in the marital home. Applicant and his first wife agreed to sell the marital home, and she transferred her interest in the home to him in August 2006. He agreed to perform repairs on the marital home and to pay the mortgage ($1,480 a month) until he sold it, which he believed would occur within three months of August 2006. He also decided to proceed with the settlement on his new house because he could manage two mortgages for three months. He timely completed the necessary repairs. Throughout the year 2007,7 Applicant made regular payments on both primary mortgages and his second mortgage. His evidence does not clearly reflect that he made his mortgage payments every month, but it shows that he made most of his monthly payments in 2007.8 Applicant placed the marital home for sale, but it did not sell quickly. In October 2007, Applicant received a short-sale offer on this property. The mortgage lender agreed to the $150,000 offer on the marital home. The sale of the property finalized in December 2007. Applicant signed a warranty deed for this property on December 5, 2007. The mortgage company released the Deed of Trust on December 18, 2007. The release indicated that the Deed of Trust had been paid pursuant to a settlement agreement. The February 4, 2011 and May 19, 2011 credit reports show that Applicant owed $108,000 (SOR ¶ 1.c) on this mortgage account, which is incorrect as shown by the release of the Deed of Trust. Applicant submitted a challenge to the credit reporting agencies after the hearing. On January 24, 2012, he received notice that one credit reporting agency had corrected the account information to show a zero balance and current account.9 In early 2008, Applicant applied to the lender holding the mortgages on his house for a loan modification. On February 20, 2008, the mortgage lender mailed Applicant two letters outlining a modification plan for his first and second mortgages. The mortgage lender requested two payments from Applicant, one in the amount of $2,513.43 and the other in the amount of $187.42. Applicant obtained two cashier’s checks in these amounts on March 19, 2008 and mailed the checks to the mortgage lender. On March 27, 2008, the mortgage lender denied his request for modification on the grounds it did not receive the requested funds. By letter dated April 22, 2008, the mortgage lender acknowledged receipt of documentation from him, but again stated that The record does not contain any information as to what happened with these funds.10 AE K. The lender also denied a 2007 request by Applicant for a loan refinance because the value of the11 house was not sufficient. Response to SOR; AE M. AE K; AE S; Tr. 21-23.12 The SOR identified this debt twice (SOR ¶¶ 1.b and 1.e) It is not unusual for credit reports to show some13 accounts as transferred, reassigned, or sold to other creditors or collection agents. Other accounts are referenced repeatedly in all credit reports, in many instances duplicating other accounts listed, either under the same creditor or collection agency name or under a different creditor or collection agency name. Some accounts are identified by complete account numbers, while others are identified by partial account numbers, in some instances eliminating the last four digits and in others eliminating other digits. In this case, the collection agency assigned the account a different account number. GE 4; GE 5; AE J; AE S; Tr. 24-26, 34-36.14 5 it did not receive his funds and denied his request for modification. The mortgage10 lender proceeded with foreclosure.11 In March 2008, Applicant hired a real estate agent to sell the house he purchased in August 2006. The real estate agent listed Applicant’s house for $365,000. He received an offer of $360,000 on his house, and the real estate agent forwarded the offer to the mortgage lender. The mortgage lender denied receiving the offer and never acted on Applicant’s request to approve this offer. The buyer withdrew the offer when the mortgage lender took no action. Applicant received a second offer in the amount of $300,000, which was forwarded to the lender. Again, the lender took no action on the offer. Instead the lender foreclosed on his property in July 2008. The record contains evidence showing an offer was forwarded to the mortgage lender on May 20, 2008, but it is not clear which offer was forwarded on this date. The February 4, 2011 credit report indicates that the $300,000 primary mortgage has a zero balance because the mortgage lender reclaimed the collateral to settle the defaulted debt. The May 19, 2011 credit report shows a zero balance and mortgage default on the primary mortgage. (SOR ¶ 1.d) Applicant submitted a challenge to the credit reporting agencies after the hearing. On January 24, 2012, he received notice from one credit reporting agency which contained a notation that this was a foreclosure and that the collateral had been sold. This report also showed a zero balance and current account.12 The second mortgage continues to be listed on all credit reports with a balance due of $74,747. The February 4, 2011 credit report and the January 24, 2012 notice from one credit reporting agency reflect that the mortgage lender sold the second mortgage to another lender. The May 19, 2011 credit report lists this debt twice, with the mortgage lender and with the collection agency. Applicant admitted owning his second13 mortgage, but denied two second mortgage loan debts. Based on the information in the record, I find that SOR allegation 1.e is a duplicate of SOR allegation 1.b. Applicant contacted the collection agency for the second mortgage on two occasions. He could not and has not reached an agreement to settle this debt because the creditor seeks a monthly payment of $1,100, which Applicant cannot afford to pay.14 Response to SOR; AE G; AE O; AE S; Tr. 28.15 Response to SOR; AE O; Tr. 21, 33.16 AE P; AE Q; Tr. 29-32.17 AE B; AE C; AE F.18 6 SOR ¶ 1.a identifies a small debt of $128 for a cable bill. Applicant denies the debt as he pays his cable bill every month. He submitted copies of recent payments on his cable bill as well as copies of his cable bills in 2008. The documents show a different monthly amount for his bill than the amount shown on the credit report as past-due. After the hearing, Applicant submitted a challenge to the credit reporting agencies on this debt. On January 24, 2012, he received notice that one credit reporting agency had deleted this debt and one other challenged debt from his credit report. Applicant has resolved this debt.15 Applicant incurred other debts during 2006 and 2007 when he attempted to pay the mortgages on two houses. His debts included unpaid utility bills and condo fees. He paid these debts between 2006 and 2010. Applicant has resolved all the non-mortgage debts from this time period. He also paid over $4,000 in Attorney fees in 2008 when his first wife sought to change their custody agreement.16 Applicant’s net monthly income totals $5,641. His $765 monthly child support payment is deducted from his pay. His monthly expenses total $4,932. He did not list his $200 a month church contribution in his expenses. With this amount added to his expenses, he has a monthly remainder of $509. He owns three cars: a 1999 jeep, a 1996 Honda, and a 1993 Mazda Miata, which does not work. His wife does not work. He has not received financial counseling.17 Applicant performs volunteer work with his church, particularly with teenagers. Applicant submitted three letters of recommendation from friends. Each individual described him as reliable and trustworthy. He is also described in these letters as hard- working and honorable, a man of integrity. One individual stated that he never knew Applicant to be lavish in his spending. All three individuals recommend him for a security clearance.18 Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the 7 factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense 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. 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. . . .” An applicant has the ultimate burden of persuasion for obtaining a favorable security 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 an 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 classified information. Section 7 of Executive Order 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). Analysis Guideline F, Financial Considerations The security concern relating to the guideline for Financial Considerations is set out in AG & 18: 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 8 protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. AG ¶ 19 describes the disqualifying conditions that could raise security concerns. I have considered all the conditions, and the following are potentially applicable: (a) inability or unwillingness to satisfy debts; and (c) a history of not meeting financial obligations. Appellant developed significant financial problems when he and his first wife separated and divorced. He was unable to pay all his living expenses because he owned two houses with mortgages. As a result, he incurred unpaid debts. The SOR lists only five debts, one of which is a duplication. These two disqualifying conditions apply. The Financial Considerations guideline also includes examples of conditions that can mitigate security concerns. I have considered mitigating factors AG ¶ 20(a) through 20(f), and the following are potentially applicable: (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; (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; (d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; and (e) the individual has a reasonable basis to dispute the legitimacy of the past-due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue. In assessing whether an Applicant has established mitigation under Guideline F, the Appeal Board provided the following guidance in ISCR Case No. 07-06482 at 3 (App. Bd. May 21, 2008): In evaluating Guideline F cases, the Board has previously noted that the concept of “‘meaningful track record’ necessarily includes evidence of actual debt reduction through payment of debts.” See, e.g., ISCR Case No. 05-01920 at 5 (App. Bd. Mar. 1, 200). However, an applicant is not required, as a matter of law, to establish that he has paid off each and every debt listed in the SOR. See, e.g., ISCR Case No. 02-25499 at 2 9 (App. Bd. Jun. 5, 2006). All that is required is that an applicant demonstrate that he has “. . . established a plan to resolve his financial problems and taken significant actions to implement that plan.” See, e.g., ISCR Case No. 04-09684 at 2 (App. Bd. Jul. 6, 2006). The Judge can reasonably consider the entirety of an applicant’s financial situation and his actions in evaluating the extent to which that applicant’s plan for the reduction of his outstanding indebtedness is credible and realistic. See Directive ¶ E2.2(a) (“Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.”) There is no requirement that a plan provide for payments on all outstanding debts simultaneously. Rather, a reasonable plan (and concomitant conduct) may provide for the payment of such debts one at a time. See, e.g., ISCR Case No. 06-25584 at 4 (App. Bd. Apr. 4, 2008). Likewise, there is no requirement that the first debts actually paid in furtherance of a reasonable debt plan be the ones listed in the SOR. Applicant’s financial problems began in 2006, when he and his first wife decided to separate and divorce after many years of marriage. She initially agreed to live in the marital home and pay the mortgage. Because of this agreement, Applicant signed a sales contract to purchase another home for himself. His first wife decided not to live in the marital home. The divorce and his wife’s decision are factors beyond his control. His decision to proceed with the purchase of his house, in hindsight, was ill-advised. His belief that he could repair and sell the marital home in three months was impacted by the start of the decline in housing the market in the area in which he lived, another factor beyond his control. These two events resulted in three SOR debts, including defaulted mortgage loans. He paid and resolved the smaller debts on his own. He tried on two occasions to refinance or modify his mortgage loans on his house without success. He sold the marital home through a short-sale, and he no longer owes any money on the mortgage for this house. He listed his house for sale and obtained two offers on the house. His mortgage company did not act on either offer, a factor he cannot control. The mortgage company foreclosed on his house, then took possession of the house in payment of the primary mortgage. Overall, the evidence of record reflects that he acted reasonably under the circumstances in which he found himself. AG ¶ 20 (b) applies. Applicant has resolved all but one SOR debt. While he has not received financial counseling, he lives within his financial means. He has sufficient monthly income to pay his usual and customary living expenses and to pay for unexpected expenses, such as car repairs. He owns three old cars. There is no evidence he has high levels of other debt. Rather, he has a track record for paying and resolving his debts. AG ¶ 20(c) applies. AG ¶ 20(d) has some applicability because Applicant spoke on two occasions with the creditor for the one remaining unpaid debt in an effort to resolve his outstanding 10 second mortgage debt. He and the creditor have been unable to reach a settlement agreement on this debt. After the hearing, Applicant filed challenges with the credit reporting agencies about several debts listed in the SOR. Because he pays his cable bill every month and because he does not have any indication that he has a past-due balance on this account, he had a legitimate basis for disputing this $128 account. He also disputed the credit reports information concerning a debt owed on the marital home. He provided proof that the mortgage lender accepted a settlement on this debt; thus, he properly disputed this debt as being improperly listed on his credit report. AG ¶ 20(e) applies to SOR allegations 1.a and 1.c. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of an applicant’s conduct and all relevant 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 security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. The decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern. The evidence in support of granting a security clearance to Applicant under the whole-person concept is more substantial than the evidence in support of denial. In reaching a conclusion, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant paid his bills and supported his family for many years. When he and his first wife decided to divorce, financial problems ensued simply because he now paid for his own housing expenses and incurred attorney fees for his divorce. He relied upon the 11 agreement he and his wife reached on managing the cost of the marital home when he entered into a purchase contract on a house. When his wife reneged on their agreement, he agreed to take responsibility for repairing the marital home and selling it. She transferred her interest in the marital property to him, and he paid the mortgage. He knew when he made the decision to proceed with the purchase of his house that he could be creating financial problems for himself. He struggled for one year to pay both mortgages. During this year, property values decreased. He sold the marital home through a short-sale and at a loss. Although his real estate agent obtained two short- sale offers on his house, one for $360,000 and one for $300,000, the mortgage lender failed to take any action on the offers and instead, foreclosed on his property. This decision by the mortgage lender left Applicant with an unpaid second mortgage of $74,000. If the first short-sale offer had been accepted, he would owe at most $15,000 on his second mortgage. Throughout the foreclosure process on his house, he and his real estate agent attempted to work with the mortgage lender without any success. The mortgage lender ignored him. Applicant recognizes that his decision to pay two mortgages created a financial crisis for him. He acted responsibly in resolving the problems he created. His one remaining debt is not resolved because he continues to encounter problems with the creditor over how to pay the debt. Applicant is a fiscally responsible individual. He pays his bills and supports his family. He is not financially irresponsible because of his decision in 2006. In 2006, he believed he made the right decision as he had sufficient funds to pay his mortgages for a few months. He did not anticipate the decline in the real estate market, which created his financial problems. He managed his bills to the best of his ability, particularly since his income was reduced for three months, when he collected disability income during his recuperation from shoulder surgery. Applicant is recognized for his dedication, reliability, dependability, integrity, and trustworthiness by his colleagues. He is married and supports five children. He provides a stable domestic environment for his family. Most significantly, he has taken affirmative action to pay or resolve most of the delinquent debts raising security concerns. (See AG & 2(a)(6).) He has not been able to resolve the second mortgage; however, this debt cannot be a source of improper pressure or duress since Applicant acknowledged it. Of course, the issue is not simply whether all his debts are paid: it is whether his financial circumstances raise concerns about his fitness to hold a security clearance. While this debt remains unpaid and unresolved, it is insufficient to raise a security concern. (See AG & 2(a)(1).) In weighing all the positive and negative evidence of record, I find that the evidence record supports granting Applicant a security clearance. Applicant has a track record for paying his debts and his living expenses. He is not required to be debt free or to pay all the debts identified in the SOR to hold a security clearance. See ISCR Case No. 07-06482 at 3 (App. Bd. May 21, 2008). Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his finances under Guideline F. 12 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 Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: 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 security clearance. Eligibility for access to classified information is granted. MARY E. HENRY Administrative Judge