DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------------------------------- )
)      ISCR Case No. 10-08514
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Department Counsel
For Applicant: Pro se
July 6, 2012
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted her Electronic Questionnaires for Investigations Processing
(e-QIP) on August 11, 2010.  (Government Exhibit 1.)  On October 31, 2011, the
Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865
and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as
amended), issued a Statement of Reasons (SOR) to the Applicant, which detailed
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 a
security clearance for the Applicant and recommended referral to an Administrative
Judge to determine whether clearance should be denied or revoked.
Applicant answered the SOR in writing on December 2, 2011, and requested a
hearing before an Administrative Judge. The case was assigned to the undersigned
Administrative Judge on February 13, 2012.  A notice of hearing was issued on March
1, 2012, scheduling the hearing for March 28, 2012.  The Government offered seven
exhibits, referred to as Government Exhibits 1 through 7, which were received without
objection.  The Applicant presented six exhibits, referred to as Applicant’s Exhibits A
and F, which were admitted into evidence without objection.  She also testified on her
own behalf.  The record remained open until close of business on April 30, 2012, to
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allow the Applicant the opportunity to submit additional documentation.  The Applicant
requested additional time to submit the documentation based upon a medical condition
and she was given until close of business on July 2, 2012.  The Applicant submitted one
Post-Hearing Exhibit dated July 5, 2012, referred to as Applicant’s Post-Hearing Exhibit
A that was admitted without objection.  The transcript of the hearing (Tr.) was received
on April 10, 2012.  Based upon a review of the pleadings, exhibits, and testimony,
eligibility for access to classified information is denied.
 FINDINGS OF FACT
The Applicant is 58 years old and is unmarried.  She is currently unemployed, but
has been offered a job with a defense contractor and is seeking to obtain a security
clearance in connection with this 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).  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 clearance because she is financially overextended and at risk
of having to engage in illegal acts to generate funds.      
The Applicant admitted all of the allegations set forth in the SOR.  Credit Reports
of the Applicant dated August 24, 2010; August 23, 2011; and March 19, 2012, reflect
that the Applicant is indebted to each of the creditors set forth in the SOR, in an amount
totaling in excess of $220,000.  (Government Exhibits 2, 3 and 7.)  
The Applicant has worked off and on for defense contractors since at least 1997,
but has not had a security clearance.  She began working for her previous employer in
April 2011.  In November 2011, through no fault of her own, she was laid off.  In January
2012, she filed for unemployment.  Prior to being laid off, the Applicant was involved in
a contentious legal battle with the county that cost her approximately $120,000 in
litigation fees.     
The Applicant is an avid horse lover and political activist, who moved into a small
canyon town where she lives to raise her horses and escape the urban life and the
intrusions of “big government.”  (Applicant’s Exhibit D.)  She is involved in horse rescue
and has rescued four horses of her own.  She has had a number of run-ins with the
local government and believes that they were after her using harassment and corrupt
tactics, with the intent of putting her in jail.  A few of the issues she encountered with the
county are set forth below. 
In 2004, at a meeting with county officials, the Applicant denounced a proposal to
limit the residents to no more than eight horses per acre.  The ordinance later became
law.  (Applicant’s Exhibit D.)  
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Sometime following the meeting, a county code enforcement officer and sheriffs
came to the Applicant’s home and told her that her horse corral was too close to the
creek and that the wall beneath the corral needed upgrades to protect the water quality.
The Applicant agreed to the fixes.  (Applicant’s Exhibit D.) 
In February 2005, a boulder and rocks on the hill behind the Applicant’s house
fell on a teenage girl who was working on her computer in her bedroom and killed her.
(Applicant’s Exhibit A.)  At a county hearing, the Applicant objected to a plan by the
county to build a tunnel to bring water though the mountains located near her residence
because she believed that the drilling would cause boulders and rocks to come down off
the hills and endanger the public.  (Applicant’s Exhibit D.) 
Then later in 2005, as a result of a car accident involving five teenagers who
flipped their car off of a canyon road, the Applicant composted her horse manure, hay
and mud from her stable and placed it along the rocks between the road and the creek
(that runs through her property) and shaped it into a wall about two feet high, to prevent
erosion.  The Applicant believed that the wall would also help prevent further accidents.
To keep the wall from sliding into the creek, the Applicant planted it with six blackberry
bushes.  County officials determined that the Applicant was engaged in an illegal
dumping operation, an unlawful connection to a storm water drainage system, an illegal
discharge, an unlawful alteration of a watershed, a failure to store solid waste in a
container, a contamination of water with a material deleterious to fish, plant life or bird
life and a public nuisance.  The Applicant was asked to remove the wall and she
refused.  She states that bacteria results were negative, and she felt that she was being
harassed.  (Tr. p. 58.)  The District Attorney charged the Applicant with 12 misdemeanor
counts and won a 12 count conviction against the Applicant for polluting the creek which
runs through her property.  The Applicant was required to pay a $5,000 fine and perform
200 hours of community service, along with three years of informal probation.
(Applicant’s Exhibit D.)    
Between legal fees, involving three different attorneys, and lab tests, that
included an expert witness, the Applicant spent about $120,000 fighting the county.
She even sold one of her properties to fund her campaign.  The Applicant did not want
to be put in jail.  As a result, the Applicant did not pay her other bills and became
delinquently indebted.  The Applicant stated, “Why did I pay this and not my bills?  They
were trying to put me in jail.  I have never been in jail in my life. I’ve never done anything
to go to jail in my life.  This was a fight.  They were after me in ways you can’t imagine.
You tend to look at these guys and go - - - well, The Government is normal. The
Government is okay.”  (Tr. p. 69.)
In May 2011, the Applicant filed for Chapter 13 bankruptcy in an effort to
organize her finances and get under a plan to get her debts paid.  (Tr. p. 42.)  She
states that in August 2011, the bankruptcy was dismissed because the trustee told her
that she would not be able to do it without an attorney.  (Tr. p. 42.)  In March 2012, the
Applicant re-filed for Chapter 13 and hired an attorney to represent her by making a
deal to exchange a piece of property for the fee.  (Tr. p. 42.)  
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The Applicant currently owns four pieces of real property that have no
outstanding loans, but are encumbered by IRS tax liens, for the fine imposed by the
county for Applicant’s illegal berry planting.  (Tr. p. 79.)  As a result, the properties are
more difficult to sell.  The Applicant testified that she has every piece of property she
owns up for sale right now and is aggressively trying to market them so that if one sells
she can pay her debts.  (Tr. p. 78.)  She lives modestly and wants to pay her bills.  She
feels that she is in a catch 22 situation, she needs a job to pay her bills and in order to
get a job, she needs to pay her bills.  (Tr. p. 78.)    
Credit reports of the Applicant indicate that the following delinquent debts remain
outstanding.  (Government Exhibits 2, 3 and 7.)  The Applicant disagrees with the
information on her credit reports.  (Tr. p. 52.)  A delinquent debt owed to a creditor in the
amount of $468 has not been paid.  The Applicant states that she disputes the debt.
(Tr. p. 43 - 44.)  A tax lien owed to the Internal Revenue Service in the amount of
$6,314 remains owing.  A tax lien owed to the Internal Revenue Service in the amount
of $5,083 remains owing.  The Applicant states that she is working with an IRS agent
and getting all of her taxes filed and up to date.  She has now filed her 2008, 2009 and
2011 income tax returns.  She has not yet filed her 2010 income tax returns.  She
believes she currently owes the IRS a total of about $8,000 or less.  (Tr. pp. 44 - 45.)  A
state tax lien in the amount of $2,770 remains owing.  The Applicant believes that the
debt was paid through garnishment by her previous employer.  (Tr. p. 46.)  
Delinquent debts owed to the county in the amounts of $828, $69 and $414
remain owing.  The Applicant states that she did not live in that area and believes the
debts are erroneous.  (Tr. p. 47- 48.)  A delinquent debt owed to a bank for a mortgage
in the amount of $200,000 remains owing.  The Applicant tried to obtain a loan
modification but was unsuccessful.  (Applicant’s Exhibit C.)  She explained that this debt
was for a second mortgage on a property that was foreclosed upon in December 2010,
and written off by the bank.  (Tr. p. 48.)  A delinquent debt owed to a creditor in the
amount of $1,526 remains owing.  The Applicant disputes the debt.  (Tr. p. 49.)  A
delinquent debt owed to a creditor in the amount of $4,840 remains owing.  The
Applicant stated that the debt was originally $10,000 and that she has paid it down to
the current amount before she ran out of money.  (Tr. p. 49.)  Delinquent debts owed to
a creditor in the amount of $166, $178 and $57 remain owing.  The Applicant admits
that one of the three will trace back to her, the others she disputes.  (Tr. pp. 50- 51.)  A
delinquent debt owed to a creditor in the amount of $490 remains owing.  The Applicant
disputes the amount of the debt.  She contends that she has paid all of debt except for
$10.00 that she still owes.  (Tr. p. 51.)               
She also admits that she has other debts that are delinquent which are not
alleged in the SOR.  (Tr. pp. 52-53.)  She states that she has paid other bills not listed in
the SOR that include a hay bill for her horses, a department store and a personal loan.
(Applicant’s Exhibits E and F and Tr. Pp. 73-74.)  When one of her properties sells, she
will be able to resolve her indebtedness.
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The Applicant’s undated personal financial statement indicates that after paying
her regular monthly expenses, without paying the delinquent debts listed in the SOR,
she has $1,250 left at the end of the month. 
The Applicant’s son is currently serving on active duty in the United States Navy
as an E-6 and he has a cryto clearance.  (Applicant’s Exhibit A.)
A letter of recommendation from the Applicant’s previous employer indicates that
she was an excellent employee.  Her many noted attributes, including her expert
technical assistance, her skill in adapting to new situations, her efforts in helping the
engineering department meet their schedule, made her an invaluable addition to the
staff.  She was given their highest recommendation.  (Applicant’s Exhibit B.)
Applicant’s Post-Hearing Exhibit A indicates that she is currently battling stage
3C ovarian cancer.  She underwent surgery on May 10, 2012.  She is currently
undergoing an 18 week chemotherapy regime.  She was in the hospital and unable to
attend her Bankruptcy hearing scheduled for May 24, 2012.  Her Bankruptcy attorney
has recommended that she dismiss the case.  The Applicant indicates that given her
medical condition, it will be almost two years before she can accept a job.    
The Applicant claims that she has made some positive progress toward
addressing her debt problems.  Legal aide has assisted her in filing her income tax
returns through the year 2011.  The 2005 state lien against her has been released and
the debt for the IR has been reduced by $2,400.  She states that she has contacted the
county regarding certain filings on her credit report, and has written a letter to the
District Attorney reminding him of the Judge’s order limiting the judgment in the case to
$10,000.  She states that she has placed her cabin up for sale, and she has deeded
over her timeshare and its debts to the attorney handling her bankruptcy.  (Applicant’s
Post-Hearing Exhibit A.)  The Applicant failed to submit documentation to substantiate
her claims.
POLICIES
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. 
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Conditions that could raise a security concern:
19.(a) inability or unwillingness to satisfy debts; and 
19.(c) a history of not meeting financial obligations.  
Condition 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.
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 and surrounding
circumstances;
     b.  The circumstances surrounding the conduct, to include knowledgeable
participation;
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 behavior
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
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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, the security of classified industrial secrets is entrusted to
civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week.  The Government is therefore
appropriately concerned when available information indicates that an Applicant for
clearance 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
holding of 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 or her a security clearance.
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 her security clearance eligibility.
The evidence shows that a number of circumstances beyond the Applicant’s
control, namely, her job layoff, litigation costs, difficulty finding steady and stable
suitable employment, and most recently her medical condition, contributed to her
excessive indebtedness.  The Applicant made a choice to pursue the litigation, which
was very costly, as a matter of principle, which prevented her from paying other bills.
As a result, she must pay the consequences.  She has not had sufficient income to pay
her bills.  Her intentions to pay her debts are good.  Her efforts to file bankruptcy under
Chapter 13 was also a good intention.  However, first, there is no evidence of a plan
under the bankruptcy to pay the debts.  And, second, given her current financial
situation, living solely on unemployment benefits, it is not reasonable to expect the
Applicant to be able to pay her delinquent debts.  Finally, even if the Applicant could
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make some payments under a bankruptcy plan, a systematic payment schedule would
need to be followed for a while before she would meet eligibility requirements to
guarantee the government that she demonstrates fiscal responsibility.  At the present
time, in any case, the Applicant remains excessively indebted and she has not paid the
majority of her delinquent debts.   
Furthermore, understandably, given her current medical condition, the Applicant
in not in a situation that will enable her to pay her delinquent debts.  Under the particular
situation here, the Applicant has not met her burden of proving that she is eligible for a
security clearance at this time.  Most if not all of her delinquent debts remain owing.
Although she has made some accomplishments toward her goal of resolving her debts,
she has not done enough to meet the eligibility requirements for access to classified
information.  Thus, she has not demonstrated that she can properly handle her financial
affairs or that she is fiscally responsible.  The record is completely void of evidence in
mitigation.  There is insufficient evidence of financial rehabilitation at this time.  It is
important to note that in the event that the Applicant does follow a payment plan,
significantly reduces her indebtedness or even resolves her indebtedness, she may
reapply for a security clearance in the future and be much more eligible.  At this time
however, considering all of the evidence, the Applicant has not introduced persuasive
evidence in rebuttal, explanation or mitigation that is sufficient to overcome the
Government's case. 
Under Guideline F (Financial Considerations), Disqualifying Conditions 19.(a)
inability or unwillingness to satisfy debts; and (c) a history of not meeting financial
obligations, apply.  Although Mitigating Condition 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, applies, it
is not controlling.  Most of her delinquent debts remain owing and she has not shown
that she is financially responsible.  Accordingly, I find against 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 above, when viewed under all of the guidelines as a
whole, support a whole-person assessment of poor judgement, untrustworthiness,
unreliability, a lack of candor, an unwillingness to comply with rules and regulations,
and/or other characteristics indicating that the person may not properly safeguard
classified information.
I have considered all of the evidence presented.  It does not mitigate the negative
effects of her excessive financial indebtedness and the effects that it can have on her
ability to safeguard classified information.  On balance, it is concluded that the Applicant
has not overcome the Government's case opposing her request for a security
clearance.  Accordingly, the evidence supports a finding against the Applicant as to the
factual and conclusionary allegations expressed in Paragraph 1 of the SOR.   
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     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: Against the Applicant.
        Subpara.  1.a.: Against the Applicant.
    Subpara.  1.b.: Against the Applicant.
      Subpara.  1.c.: Against the Applicant.
     Subpara.  1.d.: Against the Applicant.
      Subpara.  1.e.: Against the Applicant.
    Subpara.  1.f.: Against the Applicant.
    Subpara.  1.g.: Against the Applicant.
      Subpara.  1.h.: Against the Applicant.
     Subpara.  1.i.: Against the Applicant.
    Subpara.  1.j.: Against the Applicant.
      Subpara.  1.k.: Against the Applicant.
    Subpara.  1.l.: Against the Applicant.
      Subpara.  1.m.: Against the Applicant.
    Subpara.  1.n.: Against the Applicant.
      Subpara.  1.o.: Against the Applicant.
  DECISION
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue a security clearance for
the Applicant.
  Darlene Lokey Anderson
Administrative Judge