DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------------------------------- )       ISCR Case No. 12–03606
)
)
Applicant for Security Clearance )
Appearances
For Government: Chris Morin, Department Counsel
For Applicant: Pro se
March 25, 2014
______________
Decision
______________
LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Questionnaire for National Security Positions, (SF-86) on
November 15, 2011.  (Government Exhibit 5.)  On November 20, 2013, the Department
of Defense (DoD) 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) detailing the security concerns under Guidelines J, E, and F for
Applicant. The SOR set forth the reasons why DoD adjudicators 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 Applicant and
recommended referral to an administrative judge to determine whether clearance
should be denied or revoked.
Applicant responded to the SOR in writing on December 6, 2013, and elected to
have the case determined on a written record in lieu of a hearing.  Department Counsel
submitted the Government’s File of Relevant Material (FORM) to Applicant on January
7, 2014.  Applicant received the FORM on January 17, 2014.  Applicant was instructed
to submit information in rebuttal, extenuation or mitigation within 30 days of receipt.
Applicant submitted a response to the FORM dated February 3, 2014.  Department
Counsel had no objection, and the documents were admitted into evidence as
2
Applicant’s Exhibits 1 through 10.  This case was assigned to the undersigned on
February 25, 2014.  Based upon a review of the pleadings, and exhibits, eligibility for
access to classified information is denied.
 
FINDINGS OF FACT
Applicant is 47 years old, divorced a second time, with four children who do not
live with him.  He has a high school diploma and some military training.  He also
completed some on-line college courses, and earned a certificate in industrial
management.  He is employed by a defense contractor as a Quality/EHS Manager and
is applying for a security clearance in connection with his employment.
Paragraph 1 (Guideline J - Criminal Conduct).  The Government alleges that Applicant
is ineligible for clearance because he engaged in Criminal Conduct.
Applicant served in the United States Air Force from November 1984 to
November 1992.  He received an Honorable Discharge from his first enlistment on
January 5, 1988.  (Applicant’s Exhibit 4.)  In January 1992, during his final enlistment,
Applicant received a Bad Conduct Discharge.  (Applicant’s Exhibit 5, and Government
Exhibit 10.)  Since January 1996, he has been employed on a full time basis with his
current employer.
Applicant criminal history began in 1991, and has continued off and on until at
least 2008.  In September 1991, at the age of 24, Applicant pled guilty to five counts of
uttering worthless checks, a felony.  He received a five year deferred sentence and
completed five years probation.  Applicant explained that at the time he was recently
married and had a child on the way.  He allowed the pressures of beginning a family to
overwhelm him and he made bad decisions.
  
While serving on active duty in the U.S. Air Force in January 1992, at the age of
25, Applicant was convicted at a General Court-Martial of uttering bad checks totaling
approximately $6,000 and failure to pay debts.  He was sentenced to a Bad Conduct
Discharge, 21 months confinement, and a reduction to paygrade E-1.  He was
incarcerated from January to October 1992.   
In December 2004, at the age of 38, Applicant was charged with 1  degree theft,st
over $2,500.  From about November 2002 to about November 2003, while serving as a
firefighter and bookkeeper with a volunteer Fire Department, he stole approximately
$18,000 by writing unauthorized checks on the Department’s bank account.  Applicant
stated that at the time he was going through a second divorce and having a child born
out of wedlock. These things, at least in part, led him to resume a drinking habit that
contributed to him taking the money.  Applicant explained that he turned himself into the
Sheriff’s office after being confronted and entered into an agreement with the
Department’s insurer to make restitution.  Applicant currently still owes the insurer
approximately $12,170.
3
In January 2008, at the age of 41, Applicant was arrested and charged with
Driving While Intoxicated (DWI.)  He pled guilty to misdemeanor Driving While
Intoxicated, paid a fine, served a year on probation, and his conviction was then
discharged.  From May to June 2008, Applicant sought out alcohol counseling through
his employee assistance program.  He states that since the program he has remained
completely sober, which has vastly improved his personal and professional life. 
   
Paragraph 2 (Guideline E - Personal Conduct).  The Government alleges that Applicant
is ineligible for a security clearance because he has engaged in conduct involving
questionable judgment, lack of candor, dishonesty, or an unwillingness to comply with
rules and regulations.  
The criminal conduct outlined above reveals that the Applicant has engaged in a
history of personal conduct that shows poor judgment, unreliability and
untrustworthiness.
Applicant completed a security clearance application dated November 15, 2011.
(Government Exhibit 5.)  Under Section 15: regarding Military History Discharge detail,
after responding, “Yes,” to being discharged from U.S. military service, when asked to list
the type of discharge he received, Applicant answered “General”.  He also listed that it
was “Other than Honorable”.  He failed to disclose that he was actually separated with a
Bad Conduct Discharge.  (Applicant’s Exhibit 3.)  
Applicant denies that he deliberately attempted to conceal information or mislead
the Government investigation when he answered as he did the question regarding his
military discharge on his security clearance questionnaire.  He states that at the time of
his discharge it was his understanding that a Bad Conduct Discharge was considered a
General Discharge.  He states that he now realizes differently.  I do not find this
explanation convincing.  If this were true, a simple review of his DD214 would have
corrected any misconception on his part.  Since he was untruthful, the only rational
explanation for this can be that he did not want the Government to know or to pay
particular attention to this information.      
Paragraph 3 (Guideline F - Financial Considerations)  The Government alleges that
Applicant is ineligible for clearance because he is financially overextended and at risk of
having to engage in illegal acts to generate funds.      
Applicant admits the allegations set forth in subparagraphs 3.a., through 3.v.,
under this guideline.  He denies allegations 3.u., and 3.w.  He has a history of financial
indebtedness that he attributes to several things.  His 2001 and 2005 divorces, his battle
with alcohol, and the fact that he fathered a child out of wedlock.  Credit Reports of the
Applicant reflect that each of the delinquent debts set forth in the SOR totaling
approximately $10,000 were at one time owing.  In July 2004 Applicant filed for Chapter
13 bankruptcy protection.  In October 2009 the bankruptcy was discharged.  
In December 2011, during his initial security clearance background interview,
when confronted with his numerous delinquent debts, Applicant told the investigator that
4
he would immediately contact his creditors and begin to resolve his debts.  Applicant
failed to do this.  Applicant was complacent and did not take any concrete action until
2013. 
The following delinquent debts went unpaid.  A delinquent debt in the amount of
$12,170 owed for restitution for funds stolen from the Dallas County Volunteer Fire
Department; A delinquent debt owed to a utility company in the amount of $404; A
delinquent debt owed to a telephone company in the amount of $1,205; A delinquent
debt owed to a cash advance company in the amount of $913; A delinquent debt owed
to a cable company in the amount of $207; A delinquent debt owed to a creditor in the
amount of $375; A delinquent debt owed to a gas company in the amount of $134; A
delinquent debt owed to a creditor in the amount of $206; A delinquent debt owed to a
cable company in the amount of $241;  A delinquent debt owed to a telephone company
in the amount of $106; A delinquent debt owed to a creditor in the amount of $413; A
delinquent debt owed to a creditor in the amount of $526; A delinquent debt owed to a
creditor in the amount of $1,221; A delinquent credit card debt in the amount of $1,001;
A delinquent credit card debt in the amount of $630; A delinquent credit card debt in the
amount of $974; A delinquent debt owed to a cable company in the amount of $242; A
delinquent debt owed to a utility company in the amount of $248; A delinquent debt owed
to a creditor in the amount of $624; A delinquent debt owed to a state in the amount of
$531; A delinquent credit card debt owed to a creditor in the amount of $375; A
delinquent debt owed to a creditor in the amount of $64.     
  
In August 2013, Applicant hired a credit counseling firm to assist him in resolving
his debt.  (Applicant’s Exhibit 2.)  He included each of the delinquent debts set forth in
subparagraphs 3.c., through 3.j., and 3.m., through 3.t, in his repayment schedule.
(Government Exhibit 4.)  Applicant also submitted a copy of a refund check for one of the
debts owed to Midland Credit.  (Applicant’s Exhibit 1.)  This shows some progress.  He
did not include his debt for restitution still owing in the amount of $12,170, as a result of
the theft at the volunteer fire department.  Of the debts that he included in the repayment
schedule, they will not be paid in full for three years.     
 
Applicant provided documentation showing that he has been making child support
payments that are automatically deducted out of his payroll check.  He has also been an
active and involved father in the lives of his children, and has done his best to provide for
their care and well being.  (Applicant’s Exhibits 5, 6, 7, 8, 9 and 10.)
POLICIES
Enclosure 2 and Section E.2.2. of the Directive set 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:
5
Guideline J (Criminal Conduct)
30.  The Concern.  Criminal activity creates a 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.
Conditions that could raise a security concern:
31.(a) a single serious crime or multiple offenses; and
31.(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted.
Conditions that could mitigate security concerns:
None.
Guideline E (Personal Conduct)
15.  The Concern.  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.
Conditions that could raise a security concern:
16.(a) 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
16.(c) 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, questionable judgment, unwillingness to
comply with rules an regulations, or other characteristics indicating that the person may
not properly safeguard protected information.
Conditions that could mitigate security concerns:
None.
6
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. 
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. 
Conditions 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; and
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. 
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;
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 behavioral
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and 
i.  The likelihood of continuation or recurrence.
7
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
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
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.”
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 criminal conduct, dishonesty and financial indebtedness
that 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
continued 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 Applicant
has engaged in criminal conduct (Guideline J), dishonesty (Guideline E) and financial
indebtedness (Guideline F) and the totality of this evidence indicates poor judgment,
unreliability and untrustworthiness on the part of Applicant.  Because of the scope and
nature of Applicant's conduct, I conclude there is a nexus or connection with his security
clearance eligibility.  Considering all of the evidence, Applicant has not introduced
persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome
the Government's case under Guidelines J, E, and F of the SOR.  
8
Applicant’s long history of criminal activity has not been mitigated.  Under
Guideline J, Criminal Conduct, Disqualifying Conditions 31.(a) a serious crime or multiple
lesser offenses, and 31.(c) allegation or admission of criminal conduct, regardless of
whether the person was formally charged, formally prosecuted or convicted apply.  None
of the mitigating conditions are applicable.  Applicant’s criminal activity  includes a felony
conviction in 1991, a General Court Marital in 1992, a theft of over $18,000 in 2002-
2003, and a DWI conviction in 2008, which casts serious doubts on Applicant’s reliability
trustworthiness, and good judgment.  Regardless of whether he was arrested, charged
or not, this conduct shows an on going pattern of behavior that started as a young man
and has continued well into his adulthood.  Each time he engaged in criminal conduct, he
was serving in a position of trust granted to him by his employer, or with whom he was a
trusted volunteer. This long dysfunctional criminal history establishes a dysfunctional
lifestyle pattern and it cannot be said with certainty that it will not continue and recur.
There is insufficient evidence of successful rehabilitation at this time.  Accordingly, I find
against Applicant under Guideline J, Criminal Conduct.
 
Equally as troubling in this case is the fact that Applicant was untruthful
concerning his military discharge on his security clearance application.  He deliberately
concealed material information from the Government. There is no excuse for this
misconduct.  The Government relies on the representations of its defense contractors
and must be able to trust them in every instance.  Applicant made no prompt, good-faith
effort to correct his mistakes.  Applicant cannot at this time be deemed sufficiently
trustworthy.  In fact, he has demonstrated unreliability and untrustworthiness.  Under the
particular facts of this case, his poor personal conduct is considered a significant security
risk, which prohibits a favorable determination in this case.  
Under Guideline E, Personal Conduct, Disqualifying Conditions 16.(a) 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 16.(c)
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, questionable judgment, unwillingness to
comply with rules and regulations, or other characteristics indicating that the person may
not properly safeguard protected information apply.  None of the mitigating conditions
are applicable.  Accordingly, I find against the Applicant under Guideline E, Personal
Conduct.
It is recognized that in 2013 Applicant hired a credit counseling firm to assist him
in resolving his delinquent debts and that he has been working toward that goal since
then.  However, given the extent of his indebtedness, and the fact that his repayment
plan does not address his large restitution debt that remains owing in the amount of
$12,170, he remains excessively indebted and will continue to be so for some time in the
future. There is some evidence that circumstances beyond Applicant’s control, and
through no fault of his own, caused his financial problems.  Namely, his two divorces and
9
possibly a fathering a child out of wedlock.  These occurrences brought unexpected
expenses that contributed to Applicant’s financial hardship.  However, Applicant has
been slow at climbing out of debt, and at this time continues to remain excessively
indebted.   
      
Applicant has not clearly demonstrated that he can properly handle his financial
affairs.  There is insufficient evidence of financial rehabilitation.  Considering all of the
evidence, Applicant has failed to introduce persuasive evidence in rebuttal, explanation
or mitigation that is sufficient to overcome the Government's case. 
   
In regard to Guideline F, Financial Considerations, Disqualifying Conditions 19.(a)
inability or unwillingness to satisfy debts; and 19.(c) a history of not meeting financial
obligations, apply.  I considered, Mitigating Conditions 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; 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.  Under the particular
facts of this case, they are not controlling.  Applicant still remains excessively indebted. 
Accordingly, I find against Applicant under Guideline F (Financial Considerations.)
I have also considered the “whole-person concept” in evaluating Applicant’s
eligibility for access to classified information.  Applicant is a 47-year-old man who has
made some very poor choices in his life that do not immediately go away.  He must
demonstrate over a sustained period of time that he can be honest and trustworthy as
well as financially responsible.  His long history of misconduct is a future indicator of poor
judgment and unreliability that preclude him from security clearance eligibility at this time.
  
Under the particular facts of this case, the totality of the conduct set forth under all
of the guidelines viewed as a whole supports a whole-person assessment of poor
judgment, 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.  
A security clearance is a privilege, not a right.  In order to meet the qualifications
for access to classified information, it must determined that the applicant is and has been
sufficiently trustworthy on the job and in his everyday life to adequately protect the
Government’s national interest. Overall, based upon the seriousness of the conduct
outlined here, this Applicant has not demonstrated that he is sufficiently trustworthy, and
without such, he does not meet the eligibility requirements for access to classified
information.  Accordingly, I find against the Applicant under Guideline J (Criminal
Conduct), Guideline E (Personal Conduct), and Guideline F (Financial Considerations.)   
On balance, it is concluded that the Applicant has failed to overcome the
Government's case opposing his request for a security clearance.  Accordingly, the
evidence supports a finding against Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1, 2 and 3 of the SOR.  
10
FORMAL FINDINGS
Formal findings for or against Applicant on the allegations in the SOR, as required
by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against Applicant.
    Subpara.  1.a.: Against Applicant.
    Subpara.  1.b.: Against Applicant.
    Subpara.  1.c.: Against Applicant.
    Subpara.  1.d.: Against Applicant.
Paragraph 2: Against Applicant.
    Subpara.  2.a.: Against Applicant.
    Subpara.  2.b.: Against Applicant.
          Paragraph 3: Against Applicant.
    Subpara.  3.a.: Against Applicant.
    Subpara.  3.b.: Against Applicant.
    Subpara.  3.c.: Against Applicant.
    Subpara.  3.d.: Against Applicant.
    Subpara.  3.e.: Against Applicant.
    Subpara.  3.f.: Against Applicant.
    Subpara.  3.g.: Against Applicant.
    Subpara.  3.h.: Against Applicant.
    Subpara.  3.i.: Against Applicant.
    Subpara.  3.j.: Against Applicant.
    Subpara.  3.k.: Against Applicant.
    Subpara.  3.l.: Against Applicant.
    Subpara.  3.m.: Against Applicant.
    Subpara.  3.n.: Against Applicant.
    Subpara.  3.o.: Against Applicant.
    Subpara.  3.p.: Against Applicant.
    Subpara.  3.q.: Against Applicant.
    Subpara.  3.r.: Against Applicant.
    Subpara.  3.s.: Against Applicant.
    Subpara.  3.t.: Against Applicant.
    Subpara.  3.u.: Against Applicant.
    Subpara.  3.v.: Against Applicant.
    Subpara.  3.w.: Against Applicant.
11
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
Applicant.
Darlene Lokey Anderson
Administrative Judge