DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 11-06651
)
)
Applicant for Security Clearance )
Appearances
For Government: Marc G. Laverdiere, Esquire, Department Counsel
For Applicant: Pro se
April 12, 2012
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Electronic Questionnaires for Investigations (e-QIP)
on January 14, 2011.  On November 21, 2011, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns
under Guideline F for Applicant.  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 (AG), effective within the Department of Defense after
September 1, 2006.
 
The Applicant acknowledged receipt of the SOR on December 9, 2011.  He
answered the SOR in writing on December 29, 2011, and requested an Administrative
Determination by an Administrative Judge.  Department Counsel issued a File of
Relevant Material (FORM) on January 20, 2012.  The Applicant responded to the
FORM (Response) on March 2, 2012.  Based upon a review of the pleadings, and
exhibits, eligibility for access to classified information is denied.
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Findings of Fact
In his Answer to the SOR, dated December 29, 2011, the Applicant admitted the
factual allegations in Paragraphs 1.a.~1.e., 1.g., 1.h., and 1.j. of the SOR, with
explanations.  He denied the factual allegations in Paragraphs 1.f., 1.i., and 1.k. of the
SOR.
Guideline F - Financial Considerations
The Applicant attributes his current financial difficulties to being laid off his job in
October of 2001, and to his not obtaining “a job that provided health benefits until March
of 2004.”  (Response at page 2.)  He was also unemployed in 2007 and again in 2009.
(Item 6 at page 11.)
1.a. and i.h.  The Applicant has failed to file his State A income tax returns for tax
years 2004~2007; and owes about $9,399 in back taxes as a result of a tax lien.  (Item
8 at page 1.)  He avers that he has “entered into a payment plan with . . . a debt
collector for” State A, but has submitted no corroborating documentation in this regard.
(Response at page 1.)  I find that this debt is still outstanding, as alleged.
1.b.  The Applicant is indebted to State B for about $747 in back taxes as a result
of a tax lien.  (Item 8 at page 1.)  He admits this allegation, and avers “this issue
remains open.”  (Response at page 1.)  I find that this debt is still outstanding, as
alleged.
1.c.~1.e. and 1.g.  The Applicant has failed to file his Federal income tax returns
for tax years 2005~2007; and as a result, owes about $483,986 in back taxes as a
result of  tax liens.  (Item 8 at page 1.)  He avers that “the missing 2005 . . . [through]
2007 returns . . . will be submitted in January 2012 and then . . . [he] will then(sic)
negotiate a payment plan with the IRS,” but has submitted no corroborating
documentation in this regard.  (Response at page 1.)  I find that this debt is still
outstanding, as alleged.
1.f.  It is alleged that the Applicant is indebted to Creditor G in the amount of
about $103.  He avers that this “debt was paid in full on 6 January 2011"; and as it does
not appear on the Government’s most recent November 2011 credit report, I find that
the Applicant has paid this debt.
1.i.  It is alleged that the Applicant is indebted to Creditor I in the amount of about
$1,142.  He avers that this “debt was paid in full on 5 April 2011"; and as it does not
appear on the Government’s most recent November 2011 credit report, I find that the
Applicant has paid this debt.
1.j.  It is alleged that the Applicant is indebted to Creditor J in the amount of
about $2,000. He admits this allegation, and avers “this is my wife’s account and it
remains unpaid at this time.”  (Response at page 2.)  I find that this debt is still
outstanding, as alleged.
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1.k.  It is alleged that the Applicant is indebted to Creditor K in the amount of
about $900. He admits, in part, this allegation, and avers “that my wife has an unpaid
account in the amount of $271.28 . . . from 2005,” and that he “will be paying this off.”
(Response at page 2.)  I find that this debt is still outstanding, in the amount of $271.28.
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG).  In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are useful 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
factors listed in the adjudicative process.  The administrative judge’s over-arching
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.  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
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
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
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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 Paragraph 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
protect classified information.  An individual who is financially
overextended is at risk of having to engage in illegal acts to generate
funds.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 19(a), an “inability or unwillingness to satisfy debts@ is potentially
disqualifying.  Similarly under Subparagraph 19(c), “a history of not meeting financial
obligations@ may raise security concerns.  The Applicant has significant past due debts.
I can find no countervailing Mitigating Condition that is applicable here.  The
Mitigating Condition found in Subparagraph 20(b) is applicable where “the conditions
that resulted in the financial problem were largely beyond the person’s control, . . . and
the individual acted responsibly under the circumstances.@  Here, while his financial
difficulties can be attributed, in part, to his periods of unemployment, it does not explain
why he failed to file both State and Federal tax returns.
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 the Applicant’s
conduct and all the circumstances.  Under Paragraph 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 Administrative Judge should also consider the nine adjudicative process
factors listed at AG Paragraph 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
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for the conduct; (8) the potential for pressure, coercion, exploitation, or
duress; and (9) the likelihood of continuation or recurrence.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The record evidence leaves me with
questions and doubts as to Applicant’s eligibility and suitability for a security clearance.
The Applicant has about $500,000 in past due debts or back taxes.  For this reason, I
conclude Applicant has not mitigated the security concerns arising from his Financial
Considerations.
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.e. Against Applicant
Subparagraph 1.f. For Applicant
Subparagraphs 1.g. and 1.h. Against Applicant
Subparagraph 1.i. For Applicant
Subparagraphs 1.j. and 1.k. Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
Richard A. Cefola
Administrative Judge