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                               DEPARTMENT OF DEFENSE 
                DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )       ISCR Case No. 11-07539 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Robert J. Kilmartin, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
DAM, Shari, Administrative Judge: 
 
 Applicant has a long history of criminal conduct that includes citations, 
misdemeanors, and felonies. Since 2005 he accumulated a substantial number of 
delinquent debts that remain unresolved. He failed to fully disclose his criminal 
background and delinquent debts in his security clearance application. Resulting 
security concerns were not mitigated. Based upon a review of the case file, pleadings, 
and exhibits, eligibility for access to classified information is denied.  
 
 Applicant submitted a security clearance application (SF 86) on December 22, 
2010. On February 4, 2013, the Department of Defense (DoD) issued Applicant a 
Statement of Reasons (SOR), detailing security concerns under Guideline J, (Criminal 
Conduct), Guideline F (Financial Considerations), and Guideline E (Personal Conduct). 
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 effective 
within the DoD for SORs issued after September 1, 2006.  
 
 
 
 
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 Applicant answered the SOR (AR) on March 7, 2013, and requested that his 
case be decided by an administrative judge on the written record without a hearing. 
(Item 3.) Department Counsel submitted the Government’s written case on April 4, 
2013. A complete copy of the File of Relevant Material (FORM), containing 11 Items, 
was provided to Applicant on April 4, 2013, and he was afforded an opportunity to file 
objections and submit material in refutation, extenuation, or mitigation within 30 days of 
his receipt of the FORM.  
 
 Applicant signed the document acknowledging receipt of his copy of the FORM 
on April 24, 2013, and timely returned it to the Department of Defense Office of 
Hearings and Appeals (DOHA). He provided no further response to the FORM within 
the 30-day period, did not request additional time to respond, and expressed no 
objection to my consideration of the evidence submitted by Department Counsel. I 
received the case assignment on June 10, 2013. 
 
Findings of Fact 
 
 Applicant is a 36-year-old employee of a defense contractor, where he was hired 
in September 2010. He attended college from 1994 to 1997. He has been married since 
August 2001. He has two sons and a stepson. He has been unemployed at various 
times: September 2008 to September 2010; February 2008 to August 2008; June 2007 
to September 2007; February 2005 to September 2006; and January 2002 to August 
2002. He received a secret security clearance in September 1997, and this SF 86 is 
part of the security clearance re-investigation process. (Item 4.) 
 
Criminal Conduct 
 
 Paragraph 1 of the SOR alleged 14 incidents of criminal conduct. They are as 
follows: 
 
 a. Applicant admitted that on January 10, 2003, he was charged with nine counts 
of Fraud Insufficient Funds Checks/Issuing Worthless Checks. (AR.) 
 
 b. Applicant admitted that on February 13, 2003, he was charged with two counts 
of Fraud Insufficient funds Checks/Issuing Worthless Checks. (AR.) 
 
 c. Applicant admitted that on July 29, 2004, he was charged with three counts of 
Fraud Insufficient Funds Checks and Probation Violation. (AR.)  
 
 d. Applicant admitted that in April 2007, he was cited for Switched Tags and 
ordered to pay a fine and court costs. He failed to pay those costs in full. (AR.) 
 
 e. Applicant admitted that in May 2007, he was cited for Expired Tags and 
ordered to pay a fine and court costs. He failed to pay those costs in full. (AR.) 
 
 
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 f. Applicant admitted that on June 2, 2008, he was arrested and charged with two 
felony counts of Deposit Account Fraud (Bad Checks), Greater Than or Equal to $500. 
He failed to appear in court and a warrant was issued in September 2009, which is 
currently outstanding. He did not appear because he was incarcerated at the time. (AR; 
Item 9.) 
 
 g. Applicant admitted that on June 11, 2008, he was arrested and charged with 
Driving While License Suspended or Revoked. (AR.) 
 
 h. Applicant admitted that on April 3, 2009, he was arrested on two counts of 
Failure to Appear (FTA) on the charges related to the April 2007 Switched Tags and 
May 2007 Expired Tags cases. The two FTA charges were nolle prossed. (AR.) 
 
 i. Applicant admitted that on April 3, 2009, he was arrested and charged with 2nd 
Degree Stolen Property. (AR.) 
 
 j. Applicant admitted that on April 4, 2009, he was arrested and charged with 1st 
Degree Theft of Property, a felony. That charge was nolle prossed. (AR.) 
 
 k. Applicant admitted that on April 5, 2009, he was arrested and charged with 
Willful Failure to Return to Place of Confinement. He pled guilty and was ordered to 
serve 90 days in jail with credit for time served. He was then placed on probation for two 
years. (AR; Item 4.)  
 
 l. On June 15, 2009, Applicant was charged with Public Order Crimes. (Item 10.) 
 
 m. Applicant admitted that on January 6, 2011, he was arrested and charged with 
two counts of Failure to Appear. He was fined and sentenced to 15 days in jail on both 
counts. The fine remains unpaid. (AR.) 
 
 n. On August 8, 2011, a warrant was issued for Applicant’s arrest for a violation 
probation that he committed in July 2011. The warrant is outstanding. (Item 11.) 
 
Financial Considerations 
 
 Paragraph 2 of the SOR alleged 26 delinquent debts and three unpaid fines that 
accumulated between 2005 and 2011, based on credit bureau reports (CBR) dated 
January 2011, May 2012, and December 2012. The debts and fines totaled over 
$39,000.  
 
 Applicant admitted owing all of the SOR-listed debts except four debts. (AR.) He 
paid the $3,000 debt alleged in Paragraph 2.p. He said he was paying the $897 debt 
alleged in Paragraph 2.j, but did not submit proof. He indicated that the $262 debt 
alleged in Paragraph 2.s should be removed because it is owed to his current cellular 
carrier. He did not submit proof that he does not owe the debt. He did not answer the 
 
 
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allegation in Paragraph 2.aa that alleges he failed to pay three fines or submit proof of 
payment. (Item 10.) 
 
 Applicant attributed his financial problems to various periods of unemployment. 
He submitted his budget as of April 2012. His net monthly income is $3,238 and his 
expenses are $3,195, leaving him $53 at the end of the month. The budget does not 
contain any payments on debts or financial obligations. He has not participated in 
financial or credit counseling, or established a plan to resolve the debts. (Item 9.) 
 
Personal Conduct 
 
 Paragraph 3 of the SOR alleged nine incidents of conduct that raised security 
concerns under this guideline. They are as follows: 
 
 a. This paragraph re-alleges the criminal allegations contained in Paragraph 1 of 
the SOR. 
 
 b. Applicant denied that he was terminated from a defense contractor in 
December 2004 for violating company rules. He asserted that he was laid off in his AR, 
during a May 2012 interview with a government investigator, and in written 
Interrogatories he submitted in October 2012. In Section 13(c) of the SF 86, inquiring 
into his employment record, he reported that he was laid off from this position due to 
“Cut backs on project.” (Item 4.) He believed he was eligible for rehiring. (Item 9.) 
 
 c. Applicant did not admit or deny the allegation that he was terminated by an 
employer in September 2007 due to abandoning his job. According to his answer to an 
interrogatory, he did not report any information related to this employment on his SF 86 
because he could not remember the temporary placement agency through which he 
obtained the position because he worked with several agencies. He did not have any 
check stubs with a phone number to review. (Item 9.) 
 
 d. Applicant denied that he was terminated from another position in October 2008 
after he failed to report to work. He said he emailed the employer that his son was 
hospitalized. He spoke to his supervisor, who informed him that he was not “a good fit” 
for the company. He did not interpret this situation as a termination, which is apparently 
the reason he did not disclose it on his SF 86. (Item 9.) 
 
 e. When Applicant completed Section 13(c) of the SF 86, he disclosed that he 
was laid off from the position referenced in Paragraph 3.b above, and from another 
position in 2002 because the employer moved to another country. He did not indicate 
that he was terminated from the positions referenced in Paragraphs 3.c and 3.d. In his 
AR to this allegation regarding his failure to report employment terminations, he did not 
specifically answer the allegation, but wrote that he was “laid off and [was] not able to 
get my employer (sic) file to see why.”  
 
 
 
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 f. When Applicant completed Section 22(b) of the SF 86, which inquired whether 
he had ever been arrested by any law enforcement officer, he disclosed a March 2009 
“Theft of Property 3rd” arrest and indicated that the action taken was “Misdemeanor 
Probation.” (Item 4.) He did not disclose any of the other arrests listed in the SOR. In his 
AR, he admitted that he did not disclose other arrests because he did not “remember all 
charges and dates.” 
 
 g. When Applicant completed Section 22(c) of the SF 86, which inquired whether 
Applicant had ever been charged with a felony offense, he answered “No.” He did not 
disclose the 2008 felonies related to writing bad checks or the April 2009 felony related 
to theft. He admitted that he failed to disclose them, but asserted some charges were 
dismissed by the court. (AR.)  
  
 h. When Applicant completed Sections 26(g) of the SF 86, which inquired 
whether he ever had debts referred to a collection agency, he listed one account that 
was turned over to a collection agency. He did not disclose numerous other SOR-listed 
delinquent debts that were referred for collections. He denied that he intentionally failed 
to disclose them, but indicated that he knew one account was delinquent but did not 
have a credit report to “be sure” of others. (AR.) 
 
 i. When Applicant completed Section 26(m) and (n) of the SF 86, which inquired 
whether he had debts that were more than 180 or 90 days delinquent, he failed to 
disclose any debts. He admitted that he knew some debts should have been disclosed. 
(AR.) 
   
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 (AG) list 
potentially disqualifying conditions and mitigating conditions, which are to be 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 
factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s 
overarching adjudicative goal is a fair, impartial, and commonsense decision. According 
to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable 
guidelines in the context 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 the national security.” In reaching this 
 
 
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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, “[t]he applicant is responsible for presenting witnesses and 
other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant 
or proven by Department Counsel, and has the ultimate burden of persuasion as to 
obtaining a favorable clearance decision.” Section 7 of Executive Order 10865 provides: 
“[a]ny determination under this order adverse to an applicant 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.” 
 
A person applying for access to classified information seeks to enter 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. 
 
Analysis 
 
Guideline J, Criminal Conduct 
 
AG ¶ 30 expresses the security concern pertaining to criminal conduct, reads in 
pertinent part: 
 
Criminal activity creates doubt about a person's judgment, reliability, and 
trustworthiness. By its very nature, it calls into question a person's ability 
or willingness to comply with laws, rules and regulations. 
 
AG ¶ 31 describes two conditions that could raise a security concern and may be 
disqualifying in this case: 
 
(a) a single serious crime or multiple lesser offenses; and 
 
(e) violation of parole or probation, or failure to complete a court-mandated 
rehabilitation program. 
 
 Applicant has a long history of criminal conduct, which began in January 2003 
and continued to August 2011. It includes citations, misdemeanors and felonies. The 
most recent charge in August 2011 involved a probation violation. The evidence raises 
 
 
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both security concerns, thereby shifting the burden to Applicant to rebut, extenuate, or 
mitigate those concerns.  
 
AG ¶ 32 provides two conditions that could mitigate the security concerns raised 
under this guideline: 
 
(a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances that it is unlikely to recur 
and does not cast doubt on the individual's reliability, trustworthiness, or 
good judgment; and 
 
(d) there is evidence of successful rehabilitation; including but not limited 
to the passage of time without recurrence of criminal activity, remorse or 
restitution, job training or higher education, good employment record, or 
constructive community involvement. 
 
Neither mitigating condition applies. Applicant has a history of criminal conduct 
that spans eight years. The last offense occurred in July 2011 when he violated his 
probation. Given the length of time he has engaged in criminal activity, the 
repetitiveness of the crimes, and the offense that occurred less than two years ago, AG 
¶ 32(a) does not apply. Applicant did not present any evidence of successful 
rehabilitation. Hence, AG ¶ 32(d) cannot apply. 
 
Guideline F, Financial Considerations 
 
 The security concerns relating to the guideline for financial considerations are set 
out in AG ¶ 18, which reads in pertinent part:       
 
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.  
 
 AG ¶ 19 describes two conditions that could raise security concerns and may be 
disqualifying in this case:  
 
(a) inability or unwillingness to satisfy debts;  
 
(c) a history of not meeting financial obligations; and 
 
(d) financial problems that are linked to drug abuse, alcoholism, gambling 
problems, or other issues of security concern. 
 
 
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 Since 2005 Applicant has been unable or unwilling to satisfy the delinquent debts 
alleged in the SOR that total over $39,000. He also has a criminal history of writing bad 
checks. The evidence raises all three security concerns, thereby shifting the burden to 
Applicant to rebut, extenuate, or mitigate those concerns.  
 
 The guideline includes four conditions in AG ¶ 20 that could mitigate security 
concerns arising from Applicant’s delinquent debts: 
 
(a) the behavior happened so long ago, was so infrequent, or occurred 
under such circumstances that it is unlikely to recur and does not cast 
doubt on the individual’s current reliability, trustworthiness, or good 
judgment;  
 
(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; and 
 
(d) the individual initiated a good-faith effort to repay overdue creditors or 
otherwise resolve debts. 
 
 Applicant’s delinquent debts are in excess of $39,000, arose during and since 
2005, and continue to date. Applicant failed to demonstrate that such problems are 
unlikely to continue or recur, or that his reliability in managing his debts has improved 
over the years. The evidence does not support the application of AG ¶ 20(a).  
 
 Applicant offered some evidence that his financial problems arose as a result of 
periods of unemployment. Other than times when he was incarcerated, those may have 
been circumstances beyond his control. However, he did not provide documentation 
that he responsibly addressed his debts while they were accumulating, which evidence 
is necessary for the full application of AG ¶ 20(b).  
 
 Applicant did not document participation in credit counseling or other financial 
assistance. He provided a budget that documents a limited financial capability to resolve 
his debts. The evidence does not establish clear indications that his delinquent debts 
are being resolved or are under control. AG ¶ 20(c) does not apply.  
 
 Applicant paid a $3,000 debt, demonstrating a good-faith effort to resolve that 
debt (SOR ¶ 2.p). However, over $36,000 of debt remains outstanding and 
unaddressed. Mitigation under AG ¶ 20(d) applies only to that one debt.  
 
 
 
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Guideline E, Personal Conduct 
 
AG ¶ 15 expresses the security concern pertaining to personal conduct, which 
reads in pertinent part: 
 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual's reliability, trustworthiness and ability to protect 
classified information. Of special interest is any failure to provide truthful 
and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process. 
 
AG ¶ 16 describes two conditions that could raise a security concern and may be 
disqualifying in this case: 
 
(a) deliberate omission, concealment, or falsification of relevant facts from 
any personnel security questionnaire, personal history statement, or 
similar form used to conduct investigations, determine employment 
qualifications, award benefits or status, determine security clearance 
eligibility or trustworthiness, or award fiduciary responsibilities; and 
 
(d) credible adverse information that is not explicitly covered under any 
other guideline and may not be sufficient by itself for an adverse 
determination, but which, when combined with all available information 
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.  
 
Paragraph 3.a of the SOR alleges that Applicant’s criminal conduct raises 
security concerns under this guideline. While all misconduct involves elements of 
questionable judgment, Applicant’s history of criminal conduct is appropriately raised 
under Guideline J. Hence, AG ¶ 16(d) is redundant. This allegation is found in 
Applicant’s favor. 
 
Paragraphs 3.b, 3.c, and 3.d of the SOR allege that Applicant’s termination from 
employment in three instances raises a security concern under AG ¶ 16(d), because it is 
information that is not explicitly covered under any other guideline, but may be sufficient 
when combined with all available information. Applicant denied the allegations in 
Paragraphs 3.b and 3.d, and gave explanations. Although he did not address the 
allegation in Paragraph 3.c in his AR, he noted in an interrogatory that he could not 
recall the name of the temporary agency referenced, which is the reason he did not list 
it. The record does not contain sufficient evidence to contradict his denials or to support 
the allegations. AG ¶ 16(d) does not apply. These three allegations are found in his 
favor.  
 
 
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Paragraph 3.e is also found in Applicant’s favor, as the record does not contain 
sufficient information to support a finding that he intentionally failed to disclose 
information about the three terminations, which evidence is required to establish the 
application of AG ¶ 16(a).   
 
Paragraph 3.f of the SOR alleged that Applicant failed to disclose in his SF 86 
the numerous arrests listed on the SOR. He failed to disclose at least seven arrests. 
AG ¶ 16(a) applies.  
 
Paragraph 3.g of the SOR alleged that Applicant failed to disclose arrests for 
felony charges in his SF 86. He failed to disclose his felony arrests in 2008 and 2009. 
AG ¶ 16(a) applies.  
  
Paragraph 3.h of the SOR alleged that Applicant failed to disclose all of his debts 
that were referred to collection. Although he said he could only remember one, he could 
have noted in the SF 86 that he knew he had other such debts, but he could not 
remember them. AG ¶ 16(a) applies.   
 
Paragraph 3.i of the SOR alleged that Applicant failed to disclose debts that 
were more than 180 and 90 days delinquent. Applicant admitted that he did not disclose 
any delinquent debts. AG ¶ 16(a) applies.  
 
 AG ¶ 17 includes two conditions that could mitigate security concerns arising 
from Applicant’s personal conduct: 
 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; and 
 
(c) the offense is so minor, or so much time has passed, or the behavior is 
so infrequent, or it happened under such unique circumstances that it is 
unlikely to recur and does not cast doubt on the individual's reliability, 
trustworthiness, or good judgment. 
 
The evidence does not support the application of either mitigating condition. 
There is no evidence that Applicant made any effort to correct his omissions. His failure 
to disclose requested information pertinent to his criminal history and financial problems 
cannot be construed to be a minor offense. It is an intentional and serious offense, 
casting doubt on his current trustworthiness and good judgment. 
 
 
 
 
 
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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 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.  
 
 According 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 
pertinent facts and circumstances surrounding this case. Applicant is a 36-year-old 
adult, who is responsible for his choices and conduct that underlie the security concerns 
expressed in the SOR. His eight-year history of criminal conduct, including periods of 
incarceration, and his seven-year history of financial problems raise questions about his 
judgment and reliability. His lack of complete candor when completing his SF 86 raises 
serious trustworthiness concerns.   
 
 Overall, the record evidence leaves me with substantial doubt as to Applicant’s 
present eligibility and suitability for a security clearance. He did not meet his burden to 
mitigate the security concerns arising from his criminal conduct, financial 
considerations, and personal conduct. 
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: 
 
 Paragraph 1, Guideline J:   AGAINST APPLICANT 
 
  Subparagraphs 1.a through 1.n:  Against Applicant 
 
 Paragraph 2, Guideline F:   AGAINST APPLICANT 
 
  Subparagraphs 2.a through 2.o:  Against Applicant 
 
 
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  Subparagraph 2.p:    For Applicant 
  Subparagraphs 2.q through 2.aa:  Against Applicant 
 
 Paragraph 3, Guideline E:   AGAINST APPLICANT 
 
  Subparagraphs 3.a through 3.e:  For Applicant 
  Subparagraphs 3.f through 3.i:  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. 
 
                                                     
 
SHARI DAM 
Administrative Judge