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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 11-11732
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Pro se
January 25, 2013
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Electronic Questionnaires for Investigations
Processing (e-QIP) on May 2, 2011.  On September 4, 2012, the Department of
Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns
under Guidelines F and E for the 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 September 14, 2012.  He
answered the SOR on October 1, 2012, and requested a hearing before an
Administrative Judge.  DOHA received the request on October 6, 2012, and I received
the case assignment on December 3, 2012.  DOHA issued a notice of hearing that
same day, and I convened the hearing as scheduled on December 18, 2012.  The
Government offered Exhibits (GXs) 1 through 6, which were received without objection.
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The Applicant testified on his own behalf, but submitted no Exhibits.  DOHA received
the transcript of the hearing (TR) on December 28, 2012.  The record closed on
December 18, 2012.  Based upon a review of the pleadings, exhibits, and testimony,
eligibility for access to classified information is denied.
Procedural and Evidentiary Rulings
Motion to Amend SOR
Department Counsel moved to amend the SOR by adding ¶ 1.h., alleging the
Applicant owed an additional creditor about $4,811, and that “this debt has not been
paid and has been charged off.”  (TR at page 7 line 22 to page 11 line 14).  The
Applicant did not object to the motion; and as such, the SOR was so amended.  (Id).
Findings of Fact
In his Answer to the SOR, the Applicant admitted the factual allegations in all of
the Subparagraphs of the SOR, with explanations, except for Subparagraph 1.e., a debt
he disputes.
Guideline F - Financial Considerations
The Applicant past due indebtedness stems from a long period of unemployment
or underemployment, commencing in 2001, when he was “laid off” from a job where he
made about “$95,000 a year.”  (TR at page 27 line 20 to page 28 line 11, and at page
45 line 21 to page 46 line 13.)  The alleged past due debts are as follows:
1.a. and 1.h.  I find that these are one and the same debt to a bank for a credit
card debt, with an outstanding judgement of about $6,512.  (GX 6 at page 1.)  The last
time the Applicant made a payment towards this judgement was “at least four years”
ago.  (TR at page 28 line 15 to page 29 line 25, and at page 35 line 24 to page 37 line
1.)  I find that this judgement is still outstanding.
1.b. and 1.d.  These debts are separate tax liens, in favor of the state where the
Applicant lives, in the amounts of about $11,655 and $8,456, respectively.  (GX 6 at
page 1.)  He admits that he has not addressed these tax liens; and as such, I find them
to be still outstanding.  (TR at page 30 line 1 to page 31 line 9, and at page 33 line 2 to
page 34 line 7.)
1.c.  This debt is a tax lien, in favor of the federal government, in the amount of
about $29,848.  (GX 6 at page 1.)  The Applicant admits that he has not addressed this
tax lien other than having his refunds credited towards the lien; and as such, I find it to
be still outstanding.  (TR at page 31 line 10 to page 33 line 1.)
1.e.  The Applicant disputes this debt of about $332 for an unspecified item
“advertised on the radio”; which he ordered, but he claims the creditor delivered more
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items than he had ordered.  (TR at page 34 line 8 to page 35 line 7.)  As this debt
appears on the Applicant’s most recent credit report (GX 6 at page 1); and he offers
nothing further in this regard other than his bare averment, I find this debt to be still
outstanding.
1.f.  This debt is a credit card debt in the amount of about $8,598.  (GX 6 at page
2.)  As the last time the Applicant made a payment towards this debt was
“approximately four years” ago, I find this debt to be still outstanding.  (TR at page 35
lines 8~23.)
1.g.  This debt is to a bank for a mortgage that is past due in the amount of about
$133,000.  (GX 6 at page 2.)  From the “end of 2008,” when the Applicant “got laid off at
another job,” until the time of his hearing, the Applicant has made only one payment
towards this outstanding mortgage.  (TR at page 37 line 2 to page 43 line 1.)  He is
awaiting a short sale of this property, but at present it is still outstanding.  (Id.)
Guideline E - Personal Conduct
2.a.  In September of 2008, the Applicant was arrested for and charged with
Possession of a Controlled Substance.  (GX 1 at page 28, and GX 2 at page 3.)
Although he avers that the controlled substance belonged to the passenger of the car
he was driving, he pled guilty to the charge, was fined $200, placed on probation,
ordered to complete drug awareness classes, and to attend Drug Anonymous meeting.
(Id, and TR at page 43 lines 2~21.)  He was also placed in a deferred judgement
program, which he completed in July of 2010.  (Id.)
2.b.  In September of 2009, the Applicant was arrested for and charged with
Having an Improper License Plate on a car, and with Providing a False Registration.
(GX 2 at page 4.)  He pled guilty as charged and was fined.  (Id, and TR at page 43 line
22 to page 45 line 11.)
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,
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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
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.
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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 admittedly has a significant
amount of past due debt, which he has yet to address.
I can find no countervailing Mitigating Condition that is applicable here.  Although
the Applicant can attribute his inability to pay his debt to being unemployed or
underemployed since 2001, he has not “acted responsibly under the circumstances,” as
required by the second Mitigating Condition.  Financial Considerations is found against
the Applicant.
Guideline E - Personal Conduct
The security concern relating to Personal Conduct in Paragraph 15, “Conduct
involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply
with rules and regulations,” could indicate that the person may not properly safeguard
information.
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Paragraph 16(c) arguably applies and provides that “credible adverse
information in several adjudicative issue areas that is not sufficient for an adverse
determination under any other single guideline, but which, when considered as a whole,
supports a whole-person assessment of questionable judgment, untrustworthiness,
unreliability, lack of candor, unwillingness to comply with rules and regulations, or other
characteristics indicating that the person may not properly safeguard protected
information” may be disqualifying.  Here, the Applicant has two arrests resulting in
convictions, the last arrest being in September of 2009.  These are countered, however,
by mitigating condition 17(c) as “the offense is so minor, or so much time has passed . .
. that it is unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment.”  His last arrest occurred more than three years ago.
Personal Conduct is found for the 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.  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): 
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(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.
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 yet to address his significant past due debt.  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.h. Against Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a. and 2.b. For 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