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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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--------------------------- )       ISCR Case No. 10-10120
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Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Pro se
June 29, 2012
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Decision
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MOGUL, Martin H., Administrative Judge:
On February 3, 2012, 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. 
 
On March 1, 2012, Applicant replied to the SOR (RSOR) in writing, and he
requested a hearing before an Administrative Judge. The case was initially assigned to
an Administrative Judge on May 11, 2012. Because of a scheduling conflict, it was
assigned to a second Administrative Judge on June 6, 2012. Because of a second
scheduling conflict, it was assigned to this Administrative Judge on June 12, 2012.
DOHA issued a notice of hearing on May 21, 2012, and I convened the hearing as
scheduled on June 15, 2012. The Government offered Exhibits 1 through 11, which
were received without objection. Applicant testified on his own behalf and submitted
Exhibits A and B at the time of hearing, which were also received without objection.
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Applicant’s wife also testified on behalf of Applicant. DOHA received the transcript of the
hearing (Tr) on June 25, 2012. I granted Applicant’s request to keep the record open
until June 22, 2012, to submit additional documents, and Exhibits C through F were
timely received and entered into evidence without objection. Based upon a review of the
pleadings, exhibits, and the testimony of Applicant, eligibility for access to classified
information is granted.
Findings of Fact
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant and his
witness, and upon due consideration of that evidence, I make the following findings of
fact: 
Applicant is 37 years old. He is married, and he has two children. Applicant
served in the United States Army from 1995 to 2001, and he was Honorably
Discharged. Applicant has been employed by his current employer, a defense
contractors for more than 10 years. Applicant is seeking a DoD security clearance in
connection with employment in the defense sector.
Guideline F, Financial Considerations
The SOR lists 1 allegation (1.a.) regarding an overdue debt under Adjudicative
Guideline F:
1.a. This overdue debt is cited in the SOR in the amount of $37,993 for an
account placed in collection. At the hearing, Applicant testified that this debt was not
incurred by him, and he explained the history of the debt. (Tr at 31-34.) I find that this
debt was not incurred by Applicant, and he has acted very responsibly in attempting to
resolve this situation.  
Applicant testified that in 2008 or 2009, while he was on Temporary Duty, he lost
his American Express credit card when he was at a gas station. When he realized that
he lost the card, he immediately called American Express and reported that his card
had been lost. He completed a report on the phone and was informed that American
Express had an office in the city where he was staying. The next day, he went to the
American Express office, and he received a new card issued by the company with a
different number than the card he had lost. (Tr at 26-29.)  
While Applicant was deployed overseas, six or seven months later, he was
informed that his American Express card was frozen, and he could no longer use it.
When he returned to the United States, he contacted American Express and told a
representative of the company that any activity incurred on the card was fraudulent.  A
fraud number was assigned to the case, and Applicant was informed that they would be
sending him a fraud packet, which he was to complete. Applicant testified that he never
received the fraud packet, despite both he and his wife calling on many occasions and
ultimately sending written requests to have the fraud packet sent to them. Applicant
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estimated that he and his wife called to request a fraud packet, “a dozen or so times
over the next few years,” but one was never sent to them. (Tr at 30-35.) Exhibit A
consists of two letters, dated May 8, 2011, sent to two different addresses of American
Express, in which Applicant explains the situation and requests a fraud packet. Exhibit B
consists of the response letter from American Express, dated August 22, 2011,
informing Applicant that the matter was assigned to customer service, and once an
investigation was conducted the matter could be resolved. Applicant never received any
further contact from American Express. Exhibit 3 includes three letters sent on March
25, 2012, to the three major credit reporting agencies, in which Applicant disputes the
debt and explains the situation. Applicant continues to attempt to have American
Express send him a fraud packet so he can complete the form and reiterate what he
has informed them on may occasion by telephone and mail that the credit card in
question was lost and the bills on the card were fraudulently incurred. (Tr at 41-43.) 
Applicant testified, and the credit reports confirmed, that with the exception of this
debt, Applicant is current on all of his other debts. (Tr at 45.) (Exhibits 6-9.) Applicant
also confirmed that he first received the credit card in question in 2003, and from 2003
until 2008, prior to this incident, he had always paid the bills for this credit in a timely
fashion and was never late in paying the bills or used the card in an unauthorized
manner. Also, because this credit card was issued by Applicant’s employer, Applicant
has continued to keep the company aware of the status of this debt. (Tr at 48-50.) 
Mitigation
As discussed above, Applicant’s wife also testified on Applicant’s behalf. His wife
stated that because of her husband having the responsibility of deploying for his career,
she is the one in the family who pays the bills, and she always keeps her husband
apprised of the status of the bills. She reiterated that except for the problems associated
with the bill that is the subject of the SOR, they have had no other problem with any
other overdue bill. She also confirmed her husband’s testimony that they have been
doing every thing they can to resolve this problem of the lost credit card and the
fraudulently incurred debt, but despite their many requests, American Express has not
sent them a fraud packet to complete, or done anything else to help them resolve this
issue. Finally, she estimated that she has spent, “probably hundreds of hours talking
with people” to try to get this issue resolved, but they have received no cooperation from
American Express. (Tr at 53-61.) 
Applicant also submitted several post hearing documents. Exhibit C is a copy of
Applicant’s DD Form 214, which established that Applicant served in the United States
Army from 1995 to 2001, when he received an Honorable Discharge.  It also shows that
during Applicant’s military career, he received a number of medals and awards. Exhibit
D is an evaluation Applicant received during a period when he was deployed in 2008.
His ratings in all categories was “Excellent,” and he was described as, “an expert
repairman. Cheerful and enthusiastic, a pleasure to work with.” Exhibit E consisted of a
series of Performance Evaluations received by Applicant from 2002 through 2011. All of
his rating have been positive, and in his most recent evaluation from April 1, 2010, to
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March 31, 2011, he was rated as “High Meets” job requirements, and he was described
as a “valuable employee” and a “go to guy.” 
Finally, Applicant submitted two complimentary character letters from people who
know him in his professional life. (Exhibit F.) He was described as “a standup guy” and
“trustworthy, dependable, reliable, and hard-working.”
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 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
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.
 
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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 concerns relating to the guideline for Financial Considerations are
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
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 and
could potentially apply in this case.  Under AG ¶ 19 (a), “an inability or unwillingness to
satisfy debts” is potentially disqualifying. Similarly under AG ¶ 19 (c), “a history of not
meeting financial obligations” may raise security concerns. I do not find that either of
these disqualifying conditions apply to Applicant in this case, nor do any other
disqualifying conditions apply to this case. The evidence has established that Applicant
has been up to date on all of his other debts, and the one delinquent debt that is the
subject of the SOR was not incurred by him. Additionally, I am convinced that Applicant
and his wife have acted responsibly by using every reasonable means available to them
to attempt to resolve this debt that was incurred fraudulently against them.
AG ¶ 20 provides conditions that could mitigate security concerns from financial
difficulties. But since no disqualifying conditions apply to this case, no mitigating
conditions need be reviewed. I conclude that Guideline F, Financial Considerations, is
found for Applicant.
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. 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
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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.  
  
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why no disqualifying conditions apply, together with Applicant’s excellent
overall financial history as well as his excellent civilian and previous military careers, I
find that the record evidence leaves me with no questions or doubts as to Applicant’s
eligibility and suitability for a security clearance under the whole-person concept. For all
these reasons, I conclude Applicant has mitigated the security concerns under the
whole-person concept. 
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
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.
                                              
Martin H. Mogul
Administrative Judge