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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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-------------------------- )       ISCR Case No. 11-14407
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Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se
December 12, 2013
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Decision
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MOGUL, Martin H., Administrative Judge:
On May 8, 2013, the Department of Defense (DoD) 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 June 7, 2013, Applicant replied to the SOR (RSOR) in writing, and he
requested a hearing before an Administrative Judge. The case was assigned to this
Administrative Judge on August 1, 2013. DOHA issued a notice of hearing on August
20, 2013, for the hearing to be scheduled on September 9, 2013. Because of a
scheduling conflict the hearing was taken off calendar. DOHA issued a second notice of
hearing on August 20, 2013, for the hearing to be scheduled on October 10, 2013.
Because of an additional scheduling conflict the hearing was again taken off calendar.
DOHA issued a third notice of hearing on October 16, 2013, and the  hearing was heard
on November 6, 2013.  
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The Government offered Exhibits 1 through 4, which were received without
objection. Applicant testified on his own behalf and submitted Exhibits A through L at
the time of hearing, which were also received without objection. DOHA received the
transcript of the hearing (Tr) on November 15, 2013. I granted Applicant’s request to
keep the record open until November 20, 2013, to submit additional documents, and
documents were timely received and entered into evidence as Exhibit M, 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 53 years old. He is married, although he is officially separated, and
he has two daughters. Applicant’s wife was present at the hearing to give him moral
support and to help him with his presentation of the case. Applicant served in the United
States Navy from 1978 to 1982, and he was Honorably Discharged. Applicant earned a
Ph.D. in Electrical Engineering in 1999, as well as a Master of Science degree in 1992
and a Bachelor of Science degree in 1988. Applicant has been employed by his current
employer, a defense contractor, for 25 years, and he 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 to a County Superior Court for a
money judgement in favor of Applicant’s estranged spouse for attorney’s fees, and
delinquent spousal and child support in the approximate amount of $60,111. Applicant
admitted this allegation in his RSOR with an explanation. 
At the hearing, Applicant testified that this debt arose out of his pending divorce
from his spouse. On October 24, 2010, the court froze the majority of his savings, which
included $386,396 in his 401k and $144,212 in a CD savings account for his children’s
college education, totaling $530,608. He was also ordered to pay $114,000 on that day,
two amounts for attorneys fees of $29,000 and $25,000, and $60,000 to his wife. Three
levies were issued for these three debts.  (Tr at 39-43.) Exhibit 3 includes copies of all
three levies. 
According to Applicant, two of the levies, the ones for the attorneys’ fees, were
paid from Applicant’s assets, and those debts were resolved. However, the levy order
for payment to Applicant’s wife did not include a number identifying that the money was
to be drawn from Applicant’s CD account. Because of this only $28,529 was withdrawn
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and paid to Applicant’s wife, rather than the court ordered $60,000. Applicant averred
and the evidence suggests that the debt would have been resolved completely if not for
the clerical error of not including the CD number on the levee notice. (Tr at 44-52.)
Applicant’s RSOR Attachment C confirms that $28,529 was withdrawn on January 8,
2013. Exhibit M includes three cancelled check, establishing that the three payments
were made as testified by Applicant.
Applicant testified that his wife received a letter from her attorney explaining to
her that $31,550 was still owed to her by her husband, and inquiring as to whether she
wanted them to pursue this resolution of the debt. Exhibit  H is the letter, dated June 10,
2013, from Applicant’s wife’s attorney. Applicant further testified  that the amount now
owed to his wife is not the $60,000 as stated in the SOR, but actually $31,550 as
reviewed in her attorney’s letter, because she has already received the payment of
$28,529. (Tr at 44- 59.) 
Finally, Applicant testified most credibly that the assets to pay the additional
amount owed to his wife are still in his frozen funds, and he has not opposed having the
amount owed taken from these funds and transferred to his wife. He contends that he
has “encouraged her to get that money.” (Tr at 66.) RSOR Attachment C establishes
that Applicant has more than sufficient funds remaining in the account from which the
money was drawn that partially paid his wife, to pay the additional amount owed to his
wife. Finally, in the post hearing submissions offered by Applicant, he wrote that he and
his wife were scheduled to meet with his wife’s attorney on November 26, 2013, to
attempt to resolve the remaining debt owed by Applicant to his wife. (Exhibit M.) 
Applicant also testified, and the credit report confirmed, that with the exception of
the one SOR debt, Applicant is current on all of his other debts. He stated that his
mortgage is paid off, as are his vehicles, and no other debt is overdue. (Tr at 67-69.)
(Exhibit 2.) 
Mitigation
Applicant submitted several post hearing documents, including certificates and
awards. One certificate congratulated him for his employment with his current employer
for 25 years, and another one he received as an “Innovation Award” from his employer.
Applicant also submitted letters thanking him for speaking to public school classes
about his work, and for being a judge at a science fair. (Exhibit M.)
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.
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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 “any 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 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
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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 he has done everything he reasonably could do to resolve the one
delinquent debt that is the subject of the SOR. Applicant actually had three debts as a
result of his divorce. Two of the debts have been paid in full, and the SOR debt to his
wife was reduced by approximately 50% to $31,550. Additionally, I am convinced that
Applicant has acted responsibly by using every reasonable means available to him to
attempt to resolve the remaining part of the debt to his wife.
AG ¶ 20 provides conditions that could mitigate security concerns from financial
difficulties. While I have ruled that no disqualifying conditions apply to this case, I do find
that certain mitigating conditions are applicable. Under AG ¶  20(b), it may be mitigating
where “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.” As reviewed above, Applicant’s divorce resulted in three
debts. I find that Applicant has acted responsibly as two debts have been paid in full,
and the debt listed on the SOR has been reduced by half.  Additionally, Applicant has
acted responsibly by not only not opposing having his funds transferred to his wife, but,
in fact, encouraging her to have them transferred. I find that this mitigating condition is
applicable. 
Similarly, I find that AG ¶ 20(d) is applicable, because, as discussed above,
Applicant has “initiated a good-faith effort” to resolve his one overdue debt. 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
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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.
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, 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