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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
 [Redacted] )  ADP Case No. 11-11598 
 ) 
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: Chris Morin, Esq., Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves trustworthiness concerns raised under Guideline F (Financial 
Considerations). Eligibility for a public trust position is denied. 
 
Statement of the Case 
 
Applicant submitted an application for a public trust position on May 4, 2011. On 
January 25, 2013, the Department of Defense (DOD) sent him Statement of Reasons 
(SOR), citing trustworthiness concerns under Guideline F. DOD acted under DOD 
Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program 
(January 2, 1992), as amended (Directive); DOD Regulation 5200.2-R, Personnel 
Security Program (January 1987), as amended (Regulation); and the adjudicative 
guidelines (AG) implemented by DOD on September 1, 2006.  
 
 Applicant received the SOR on February 4, 2013; answered it on March 12, 
2013; and requested a hearing before an administrative judge. Department Counsel 
was ready to proceed on April 1, 2013, and the case was assigned an administrative 
judge on April 8, 2013. Scheduling of the hearing was delayed by budgetary constraints 
and unavailability of video teleconference facilities at the location where Applicant lives 
and works. The case was reassigned to me on May 8, 2013. DOHA issued a notice of 
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hearing on May 15, 2013, scheduling it for June 4, 2013. I convened the hearing as 
scheduled. Government Exhibits (GX) 1 through 5 were admitted in evidence without 
objection. Applicant testified but did not present the testimony of any witnesses or 
submit any documentary evidence. I kept the record open until June 19, 2013, to enable 
him to submit documentary evidence. He timely submitted Applicant’s Exhibits (AX) A 
through G, which were admitted without objection. Department Counsel’s comments 
regarding AX A through G are attached to the record as Hearing Exhibit I. DOHA 
received the transcript (Tr.) on June 20, 2013. 
 
Findings of Fact 
 
 Applicant is a 31-year-old warehouse specialist. He graduated from high school 
in June 1999. He worked as a driver for a large discount retailer from September 2000 
to August 2010. He was laid off in September 2010. He returned to work for about a 
month in late 2010, but he quit when his hours were reduced to 20-35 hours per week. 
(GX 2 at 22.) He was unemployed until he began working for his current employer in 
March 2011. He has never held a security clearance. 
 
 Applicant and his wife have a seven-year-old son and an infant daughter. (GX 2 
at 19.) He also has a 12-year-old daughter from a previous relationship, for whom he 
pays child support of $359 per month. When he was interviewed by a security 
investigator in June 2011, he had a child support arrearage of about $2,900. (GX 2 at 
21.) 
 
 Applicant filed a Chapter 7 bankruptcy petition in October 2005 and received a 
discharge in January 2006. He told a security investigator that he filed the bankruptcy 
petition because he had acquired too much debt, but that he did not recall the details of 
the debts that were included. (GX 2 at 22; GX 3 at 4.) The bankruptcy is alleged in SOR 
¶ 1.a.  
 
In response to financial interrogatories in November 2012, Applicant stated that 
he had contacted the creditors alleged in SOR ¶¶ 1.b through 1.f and 1.h through 1.i 
and made payment arrangements. He submitted copies of letters addressed to each of 
these creditors. All the letters are unsigned and bear no indication that they were sent. 
He presented no documentary evidence that the creditors agreed to the payment terms. 
(GX 2 at 1-15.)  
 
In his answer to the SOR, Applicant admitted the bankruptcy alleged in SOR ¶ 
1.a, admitted the delinquent debts alleged in SOR ¶¶ 1.b and 1.c, and denied the debts 
alleged in SOR ¶ 1.d through 1.m. The status of the delinquent debts alleged in the 
SOR is set out below. 
 
SOR ¶ 1.b, judgment for $1,668, filed in June 2008. This debt is for furniture. 
Applicant testified that he has an agreement with the creditor to pay $50 per month, but 
that the agreement was not reduced to writing. (Tr. 32.) On May 17, 2013, he made one 
$50 payment. (AX A.)  
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SOR ¶ 1.c, medical bill for $1,230, referred for collection in April 2011. 
Applicant testified that he has not made any payments on this debt. (Tr. 32-33.) 
 
SOR ¶ 1.d, delinquent utility bill for $483, referred for collection in August 
2010. Applicant paid this debt in June 2013. (AX C.) 
 
SOR ¶ 1.e, credit card account for $590, referred for collection in April 2007. 
Applicant disputed this debt and it was deleted from his credit record. (Enclosure to 
Answer to SOR; GX 5 at 1.) 
 
SOR ¶ 1.f, telephone bill for $582, referred for collection in December 2007, 
charged off in March 2010. Applicant settled this debt in March 2013. (Answer to SOR; 
GX 3 at 5; GX 5 at 2.) 
 
SOR ¶ 1.g, child support arrearage of $4,891, referred for collection in 
September 2010. Applicant made several payments of less than the amount due 
between June 2012 and February 2013. The child support payments are now being 
deducted by garnishment of his pay. He testified that his state income tax deductions 
were being seized to satisfy the arrearage. The arrearage has been reduced to about 
$3,800. (Tr. 37-40, 49; AX D.) 
 
SOR ¶ 1.h, medical bill for $373, referred for collection in June 2010. 
Applicant settled this debt for $186.63 in October 2012. (Tr. 41-42; Answer to SOR.) 
 
SOR ¶ 1.i, overdrawn credit union checking account for $701, referred for 
collection in July 2006. Applicant testified that he telephonically contacted the credit 
union and was informed by an unknown person that he did not have a debt to the credit 
union. (Tr. 43.) His April 2013 CBR reflects that this debt is a “closed or paid account” 
with a zero balance. (GX 5 at 2.) The debt is resolved. 
 
SOR ¶ 1.j, cell phone bill for $450, referred for collection in May 2011. 
Applicant paid this debt in full in March 2013. (AX E.) 
 
SOR ¶¶ 1.k and 1.l, medical bills for $173 and $387, referred for collection in 
December 2008 and January 2010. Applicant testified that he contacted the collection 
agency and was informed that it did not have any open collection accounts in his name. 
(Answer to SOR; Tr. 46-47.) The debts are not reflected on his September 2012 CBR or 
his April 2013 CBR. (GX 4; GX 5.) 
 
SOR ¶ 1.m, federal income tax debt for about $2,300. Applicant did not file 
federal income tax returns for several years. When he was interviewed by a security 
investigator in June 2011, he had been contacted by the IRS regarding a $2,300 tax 
debt, but he had not made any payment arrangements. (GX 2 at 22.) In his answer to 
the SOR, he asserted that he was making payments on his delinquent taxes, and he 
submitted an account summary reflecting that he owed $744 for tax year 2010. 
However, he has not presented evidence of a negotiated payment agreement. He 
testified that he has recently filed his returns for 2010 and 2011. (Tr. 47-48.) After the 
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hearing, he submitted an unsigned copy of a return for 2012, reflecting his calculation 
that he is entitled to a refund of $2,740, which he believes will satisfy his federal tax 
debt. (AX F.) 
 
 Applicant and his wife received financial counseling for about three or four 
months in 2012. The counseling was intended to increase Applicant’s credit score, and 
they terminated it because they believed that it was not worth the cost. (Tr. 55.) 
 
 In response to DOHA interrogatories, Applicant submitted a personal financial 
statement (PFS), which he updated at the hearing. He testified that his net monthly 
income is about $4,200. His monthly expenses are about $3,500, and his debt 
payments are about $610, leaving a net remainder of about $90. His net income reflects 
the involuntary deductions for child support. His debt payments reflected on the PFS do 
not include any of the debts alleged in the SOR. (GX 2 at 16; Tr. 50-53.) After the 
hearing, he submitted a printout of his family budget, which reflects monthly income of 
$5,232, expenses of $4,533 (including child support payments of $973 and $100 per 
month for past-due bills), and a monthly remainder of $699. (AX G.)  
 
Policies 
 
Positions designated as ADP I and ADP II are classified as “sensitive positions.” 
Regulation ¶¶ C3.1.2.1.1.7 and C3.1.2.1.2.3. The standard that must be met for 
assignment to sensitive duties is that the person’s loyalty, reliability, and trustworthiness 
are such that assigning the person to sensitive duties is “clearly consistent with the 
interests of national security.” Regulation ¶ C6.1.1.1. DOD contractor personnel are 
entitled to the procedural protections in the Directive before any final unfavorable 
access determination may be made. Regulation ¶ C8.2.1.  
 
A person in a public trust position 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. Decisions include, by necessity, 
consideration of the possible risk the applicant may deliberately or inadvertently fail to 
safeguard sensitive information.  
 
When evaluating an applicant’s suitability for a public trust position, the 
administrative judge must consider the disqualifying and mitigating conditions in the AG. 
These guidelines are not inflexible rules of law. Instead, recognizing the complexities of 
human behavior, these guidelines are applied in conjunction with an evaluation of the 
whole person. The administrative judge’s overarching adjudicative goal is a fair, 
impartial and commonsense decision. An administrative judge must consider all 
available, reliable information about the person, past and present, favorable and 
unfavorable.  
 
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 
[sensitive] information will be resolved in favor of national security. The Government 
must present substantial evidence to establish controverted facts alleged in the SOR. 
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Directive ¶ E3.1.14. Once the Government establishes a disqualifying condition by 
substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or 
mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a 
mitigating condition, and the burden of disproving it never shifts to the Government. See 
ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). An applicant has the ultimate 
burden of demonstrating that it is clearly consistent with national security to grant or 
continue eligibility for access to sensitive information.  
 
Analysis 
 
Guideline F, Financial Considerations 
 
 The SOR alleges that Applicant filed a Chapter 7 bankruptcy petition in October 
2005 and received a discharge in January 2006 (SOR ¶ 1.a). It also alleges that he 
accumulated 12 delinquent debts after his bankruptcy discharge, including a child 
support arrearage (SOR ¶ 1.g) and a federal income tax debt (SOR ¶ 1.m). 
 
The concern under this guideline is 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. 
 
 This concern is broader than the possibility that an individual might knowingly 
compromise sensitive information in order to raise money. It encompasses concerns 
about an individual’s self-control, judgment, and other qualities essential to protecting 
classified information. An individual who is financially irresponsible may also be 
irresponsible, unconcerned, or negligent in handling and safeguarding sensitive 
information. See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012). 
 
 Applicant’s CBRs, his admissions, and his testimony at the hearing establish 
three disqualifying conditions under this guideline: AG ¶ 19(a) (“inability or unwillingness 
to satisfy debts”), AG ¶ 19(c) (“a history of not meeting financial obligations”), and AG ¶ 
19(g) (“failure to file annual Federal, state, or local income tax returns as required or the 
fraudulent filing of the same”). The following mitigating conditions are potentially 
relevant: 
 
AG ¶ 20(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; 
 
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AG ¶ 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; 
 
AG ¶ 20(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; 
 
AG ¶ 20(d): the individual initiated a good-faith effort to repay overdue 
creditors or otherwise resolve debts; and 
 
AG ¶ 20(e): the individual has a reasonable basis to dispute the legitimacy 
of the past-due debt which is the cause of the problem and provides 
documented proof to substantiate the basis of the dispute or provides 
evidence of actions to resolve the issue. 
 
 AG ¶ 20(a) is not established. Applicant’s delinquent debts are numerous, 
ongoing, and not the result of unusual circumstances making them unlikely to recur. 
 
 AG ¶ 20(b) is not fully established. Applicant encountered a condition beyond his 
control when he was laid off in September 2010. However, he returned to work for about 
a month in late 2010, and he voluntarily quit when his hours were reduced. 
Furthermore, the judgment alleged in SOR ¶ 1.b was entered against him more than 
two years before he was laid off, and the debts alleged in SOR ¶ 1.d-1.f, 1.h, 1.i, 1.k, 
and 1.l were all referred for collection before he was laid off. His unemployment affected 
his ability to resolve his delinquent debts, but he has not acted responsibly. He did not 
resolve the medical debt alleged in SOR ¶ 1.h until October 2012. He did not make 
payments on the delinquent debts alleged in SOR ¶¶ 1.b, 1.d, 1.f, 1.h, and 1.j until 
March, May, and June of 2013, long after beginning his current employment. His loss of 
employment in late 2010 reduced his ability to pay any federal income taxes due, but it 
does not excuse his failure to file his tax returns. 
 
 AG ¶ 20(c) is not fully established. Applicant received counseling for three or four 
months in 2012, but his financial situation is not yet under control.  
 
AG ¶ 20(d) is not fully established. This mitigating condition requires a “good-faith 
effort.” Good faith means acting in a way that shows reasonableness, prudence, 
honesty, and adherence to duty or obligation. ISCR Case No. 99-0201, 1999 WL 
1442346 at *4 (App. Bd. Oct. 12, 1999). Adjudication of eligibility for a public trust 
position is not a debt-collection procedure; it is an evaluation of an individual’s 
judgment, reliability, and trustworthiness. ISCR Case No. 09-02160 (App. Bd. Jun. 21, 
2010.) Thus, evidence of past irresponsibility is not mitigated by payment of debts 
motivated primarily by the pressure of qualifying for a public trust position. Applicant did 
not begin to address his delinquent debts until he submitted his application for a public 
trust position in May 2011 and was questioned about his delinquent debts by a security 
investigator in June 2011. He did not contact most of his creditors until he responded to 
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DOHA financial interrogatories in November 2012. Applicant’s single $50 payment on 
the judgment alleged in SOR ¶ 1.b, and his belated settlement of the debts alleged in 
SOR ¶¶ 1.d, 1.f, 1.h, and 1.j do not demonstrate good faith within the meaning of this 
guideline. The involuntary garnishment of his pay to satisfy his child support arrearage 
“is not the same as, or similar to, a good-faith initiation of repayment by the debtor.” 
ISCR Case No. 09-5700 (App. Bd. Feb. 24, 2011), citing ISCR Case No. 08-06058 
(App. Bd. Sep. 21, 2009). Similarly, the seizure of his federal income tax refunds to 
satisfy his delinquent taxes does not constitute a good-faith effort to resolve them. On 
the other hand, the evidence indicates that Applicant made periodic efforts, separate 
from the involuntary garnishment of his pay, to keep up with his child support payments 
and reduce the arrearage after he began his current job. Thus, I conclude that AG ¶ 
20(d) is established for the child support arrearage alleged in SOR ¶ 1.g, but not for the 
other delinquent debts alleged in the SOR. 
 
 AG ¶ 20(e) is established for the medical debts alleged in SOR ¶¶ 1.e, 1.i, 1.k, 
and 1.l and the credit union debt in SOR ¶ 1.i, which Applicant successfully disputed. It 
is not established for the other delinquent debts alleged in the SOR.  
 
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
Applicant’s eligibility for a public trust position by considering the totality of the 
Applicant’s conduct and all the circumstances.  
 
 Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a 
public trust position must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole-person concept. In applying the whole-
person concept, an administrative judge must evaluate an applicant’s eligibility for a 
public trust position by considering the totality of the applicant’s conduct and all relevant 
circumstances. An 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.  
 
 I have incorporated my comments under Guideline F in my whole-person 
analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but 
some warrant additional comment. 
 
 Applicant has a long history of financial problems. The judgment alleged in SOR 
¶ 1.b was entered against him within six months of his bankruptcy discharge. Most of 
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the debts alleged in the SOR were delinquent before he was laid off in September 2010. 
After he began his current job, he did not pay attention to his delinquent debts until he 
realized that they were an impediment to obtaining a public trust position. He was 
candid and sincere at the hearing. He made considerable progress in resolving his 
financial situation once he decided to give it some attention. However, he has not 
established a track record of financial responsibility, and I am not convinced that he will 
continue his efforts to resolve his debts once the pressure of qualifying for a public trust 
position is removed. His failure to file federal income tax returns for several years is 
inexcusable. 
.  
 After weighing the disqualifying and mitigating conditions under Guideline F, and 
evaluating all the evidence in the context of the whole person, I conclude Applicant has 
not mitigated the trustworthiness concerns based on financial considerations. 
Accordingly, I conclude he has not carried his burden of showing that it is clearly 
consistent with national security to grant him eligibility for a public trust position. 
 
Formal Findings 
 
 Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.d:    Against Applicant 
  Subparagraph 1.e:     For Applicant 
  Subparagraph 1.f:     Against Applicant 
  Subparagraph 1.g:     For Applicant 
  Subparagraph 1.h:     Against Applicant 
  Subparagraph 1.i:     For Applicant 
  Subparagraph 1.j:     Against Applicant 
  Subparagraphs 1.k-1.l:    For Applicant 
  Subparagraph 1.m:     Against Applicant 
 
Conclusion 
 
 I conclude that it is not clearly consistent with national security to grant Applicant 
eligibility for a public trust position. Eligibility for a public trust position is denied. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge