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                           DEPARTMENT OF DEFENSE 
          DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ADP Case No. 14-01305 
  ) 
 ) 
 ) 
 
 
Appearances 
 
For Government: Robert J. Kilmartin, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
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Decision 
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WHITE, David M., Administrative Judge: 
 
 Applicant filed for Chapter 13 bankruptcy in December 2013, resulting in a court-
approved four-year wage earner’s plan. The court ordered his employer to submit the 
required monthly payments to the bankruptcy trustee via payroll deduction. Record 
evidence shows the plan is still in effect. Applicant mitigated any trustworthiness 
concerns raised under Guideline F, Financial Considerations. Eligibility for a public trust 
position is granted. 
 
On January 24, 2013, Applicant submitted an Electronic Questionnaire for 
Investigations Processing (e-QIP). On May 14, 2014, the Department of Defense (DoD) 
issued Applicant a Statement of Reasons (SOR) detailing trustworthiness concerns 
under Guideline F, Financial Considerations. (Item 1.) 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 for SORs issued after September 1, 2006.  
 
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On May 30, 2014, Applicant answered the SOR in writing. (Item 3.) In a later 
email to DoD, he indicated that he elected to have the case decided on the written 
record in lieu of a hearing. (Item 9.) On July 9, 2014, Department Counsel prepared a 
File of Relevant Material (FORM), containing nine Items. The Defense Office of 
Hearings and Appeals (DOHA) mailed Applicant a complete copy of the FORM on July 
16, 2014. Applicant received the FORM on August 1, 2014, and was provided 30 days 
from its receipt to file objections and submit additional information. He submitted no 
additional material in refutation, extenuation, or mitigation during that time; made no 
objection to consideration of any contents of the FORM; and did not request additional 
time to respond. On September 12, 2014, the Defense Office of Hearings and Appeals 
(DOHA) assigned the case to me.   
 
Findings of Fact 
 
 The SOR contains the single allegation that Applicant filed for bankruptcy under 
Chapter 13 in December 2013, and is on a four-year wage earner’s plan approved by 
the Court. In his response to the SOR, Applicant admitted the truth of this allegation. 
(Item 3.)  
 
 Applicant is 40 years old and unmarried with no children. He lived with his 
parents until June 2003, when he moved into his present home that his parents also 
own in the same town. He graduated from high school in 1992, and earned an 
associate’s degree from a technical college in 1996. He worked in various fast food and 
retail jobs before obtaining his current employment in early 2013. He continues to work 
a second, part-time job as a cashier in a mini-mart. (Item 3; Item 4; Item 6 at 24.)  
 
 Applicant initially went into debt while attending college. He paid down some of 
his debts when resources permitted, but encountered unexpected expenses and 
periods of unemployment that prevented resolving all of them. After beginning his 
current job he tried to resolve his outstanding debts with advice from a counselor and 
attorney. They advised him that his best option was to file for Chapter 13 bankruptcy 
relief. He did so in December 2013, and was participating in a four-year court-approved 
wage earner’s plan as of the close of the record. (Item 1; Item 3; Item 5; Item 7.) 
 
 Applicant’s bankruptcy petition reported $10,787 in assets, $41,648 in liabilities, 
$2,062 in net monthly income, and $1,684 in monthly expenses. On December 20, 
2013, the bankruptcy court ordered that his primary employer submit payments of $370 
per month, through payroll deduction from Applicant’s earnings, to his bankruptcy 
trustee for a period of 48 months to complete the wage earner’s plan. (Item 5; Item 6.)  
 
 The record evidence supports the conclusion that Applicant’s employer, a major 
health insurance company, has complied with the court order and made payments on 
his behalf. The most recent record credit report, dated March 6, 2014, shows that the 
Chapter 13 bankruptcy was filed and remained in effect. There is no evidence from 
which to infer or suspect that the court’s order has not been followed, or that the plan 
has been dismissed for any reason. Applicant completed all financial counseling 
 
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programs required in support of his bankruptcy petition and qualification for Chapter 13 
plan participation. (Item 6; Item 7.)  
 
Policies 
 
Positions designated as ADP I and ADP II are classified as “sensitive positions.” 
(See 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, based on all available information, 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.” (See 
Regulation ¶ C6.1.1.1.) The Deputy Under Secretary of Defense (Counterintelligence 
and Security) Memorandum, dated November 19, 2004, indicates trustworthiness 
adjudications will apply to cases forwarded to the DoD and DOHA by the Defense 
Security Service and Office of Personnel Management. Department of Defense 
contractor personnel are afforded the right to the procedures contained in the Directive 
before any final unfavorable access determination may be made. (See Regulation ¶ 
C8.2.1.)  
 
When evaluating an applicant’s suitability for a public trust position, the 
administrative judge must consider the disqualifying and mitigating conditions in the 
AGs. 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(a), describing the adjudicative process. The administrative 
judge’s overarching 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, 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 
[sensitive] 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 the applicant or proven by Department Counsel. . . .” The 
applicant has the ultimate burden of persuasion as to obtaining a favorable 
trustworthiness decision. 
 
 A person who applies for access to sensitive 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 
 
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Government reposes a high degree of trust and confidence in individuals to whom it 
grants access to sensitive information. Decisions include, by necessity, consideration of 
the possible risk the applicant may deliberately or inadvertently fail to protect or 
safeguard sensitive information. Such decisions entail a certain degree of legally 
permissible extrapolation as to potential, rather than actual, risk of compromise of 
sensitive information.  
 
Section 7 of Executive Order 10865 provides that “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.” 
See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified 
or sensitive information.) 
 
Analysis 
 
Guideline F, Financial Considerations 
 
 The trustworthiness 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 trustworthiness concerns and 
may be disqualifying in this case:  
 
(a) inability or unwillingness to satisfy debts; and 
 
(c) a history of not meeting financial obligations. 
 
 Applicant accumulated about $41,000 in debt over the past decade or more, 
some of which became delinquent when he could not afford to pay it. This evidence 
raises both security concerns, thereby shifting the burden to Applicant to rebut, 
extenuate, or mitigate those concerns.  
 
 The guideline includes five conditions in AG ¶ 20 that could mitigate 
trustworthiness concerns arising from Applicant’s financial difficulties: 
 
(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 
 
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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;  
 
(d) the individual initiated a good-faith effort to repay overdue creditors or 
otherwise resolve debts; and 
 
(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. 
 
 Applicant’s debts arose during periods when his income was insufficient to meet 
all of his financial obligations. For more than 18 months, he has held steady full-time 
employment, while also working a second part-time job. These positions provide him 
with sufficient income to meet all of his regular monthly expenses while paying $370 per 
month into his court-approved Chapter 13 wage-earner’s plan to resolve those debts. 
He chose this course of action, based on advice from his financial counselor and an 
attorney, as the best method to resolve his debts. Thus, his former inability to meet 
financial obligations is unlikely to recur and does not cast doubt on his current 
trustworthiness or good judgment. He has acted responsibly with respect to his financial 
problems, received and followed counseling for them, and is resolving them through 
compliance with a court-approved wage earner’s plan. Applicant established full 
mitigation of formerly valid trustworthiness concerns under AG ¶¶ 20(a) through 20(d). 
He did not dispute the legitimacy of his debts, so AG ¶ 20(e) does not apply.  
 
Whole-Person Concept 
 
 Under the whole-person concept, the 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. 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 
 
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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 to AG ¶ 2(c), the ultimate determination of whether to grant eligibility 
for a trustworthiness determination 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 the 
facts and circumstances surrounding this case. Applicant is a 40-year-old employee of a 
health insurance company who is enjoying his first secure, full-time employment in 
many years. Once he obtained sufficient financial resources, he sought financial 
counseling and followed the resulting advice to resolve his debts through a Chapter 13 
bankruptcy plan. His employer is ensuring compliance with his obligations under this 
plan through direct payments to the bankruptcy trustee from a payroll deduction. His 
current budget indicates solvency in the future, and his willingness to supplement his 
income through a second, part-time job demonstrates maturity, good judgment, and 
permanent behavioral change. Resolution of his debts through this court-approved plan 
minimizes the potential for pressure, coercion, or duress, and makes recurrence of 
financial problems unlikely.   
 
Overall, the record evidence leaves me with no questions or doubts as to 
Applicant’s present eligibility and suitability for a public trust position. For these reasons, 
I conclude Applicant met his burden to mitigate the trustworthiness concerns arising 
from his former financial problems. 
 
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 public trust 
position. Eligibility for access to sensitive ADP information is granted. 
 
 
                                                     
_________________ 
DAVID M. WHITE 
Administrative Judge