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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 14-02996 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: David F. Hayes, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines J (Criminal 
Conduct) and F (Financial Considerations). Applicant has mitigated the Guideline J 
concerns, but he has not mitigated the Guideline F concerns. Eligibility for access to 
classified information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (SCA) on February 21, 
2014. On October 2, 2014, the Department of Defense (DOD) sent him a Statement of 
Reasons (SOR) alleging security concerns under Guidelines J and F. The DOD acted 
under Executive Order 10865, Safeguarding Classified Information within Industry 
(February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel 
Security Clearance Review Program (January 2, 1992), as amended (Directive); and the 
adjudicative guidelines (AG) implemented by DOD on September 1, 2006.  
 
 Applicant answered the SOR on December 23, 2014, and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on January 
16, 2015, and the case was assigned to an administrative judge on February 3, 2015. It 
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was reassigned to me on March 4, 2015, due to the assigned administrative judge’s 
family medical situation. The Defense Office of Hearings and Appeals (DOHA) issued a 
notice of hearing on March 4, 2015, scheduling the hearing for March 23, 2015. I 
convened the hearing as scheduled. Government Exhibits (GX) 1 through 3 were 
admitted in evidence without objection. Applicant testified but did not present the 
testimony of other witnesses or submit documentary evidence. I kept the record open 
until April 15, 2015, to enable him to submit documentary evidence. He timely submitted 
Applicant’s Exhibits (AX) A through F, which were admitted without objection. DOHA 
received the transcript (Tr.) on April 1, 2015. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted all the allegations, with 
explanations. His admissions in his answer and at the hearing are incorporated in my 
findings of fact.  
 
 Applicant is a 32-year-old pipe fitter employed by a defense contractor since 
November 2013. He has never held a security clearance. 
 
 Applicant attended a community college from August 2002 to July 2003 but did 
not receive a degree. He attended a university from August 2005 to May 2009 and 
received a bachelor’s degree in exercise physiology.  
 
Applicant worked as a material handler from June 2009 to April 2010, when he 
was laid off. He was unemployed for about four months. He worked as a salesman from 
August 2010 to August 2011, and as an aerostat mechanic from August 2011 to 
September 2013. He was unemployed for about two months before beginning his 
current job. 
 
 Applicant has never married. For the past two years, he has lived with his 
fiancée. His fiancée is the mother of one of his two children, ages four and one. (Tr. 17, 
27.) His fiancée is employed as a school teacher. (Tr. 29.) 
 
 When Applicant submitted his SCA, he disclosed that he was convicted of driving 
while intoxicated (DWI) in January 2010 and fined $2,000. In his Answer to the SOR, he 
denied being jailed for 30 days and placed on probation for 12 months, as alleged in 
SOR ¶ 1.a. He admitted that he was placed on probation for six months, required to 
perform 20 hours of community service, and fined $343. He served his community 
service by talking to students about the consequences of bad decision-making. 
 
In the same SCA, Applicant disclosed that he was charged with DWI in 
November 2011, convicted in April 2012, and sentenced to 30 days in jail, to be served 
on weekends. He disclosed that he was fined $2,500, required to attend alcohol 
education classes, required to obtain 40 hours of counseling, and was on probation until 
his fines and court costs were paid. This conviction is alleged in SOR ¶ 1.b. 
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In Applicant’s Answer, he admitted being charged with a probation violation for 
not paying his fine and court fees on time. His probation was extended for 12 additional 
months to enable him to pay his fine and fees.1 His probation was terminated in 
February 2015, after he paid the fine and required fees. (AX D.) However, he is required 
to have an interlock device on his car for another year. (Tr. 43.) He testified that he 
spent about between $8,000 and $10,000 for fines, court fees, and attorney’s fees as a 
result of his two DWI convictions. (Tr. 43, 54.) 
 
 Applicant’s March 2014 credit bureau report (CBR) (GX 2) reflects four 
unsatisfied judgments for unpaid rent: a $475 judgment entered against him in October 
2010 (SOR ¶ 2.a); a $1,027 judgment entered in November 2010 (SOR ¶ 2.b); a $806 
judgment entered in August 2008 (SOR ¶ 2.c); and a $781 judgment entered in 
December 2008 (SOR ¶ 2.d). It reflects two medical collection accounts for $274 (SOR 
¶ 2.e) and $165 (SOR ¶ 2.f). It also reflects five student loans totaling $64,832, on which 
payment is deferred (SOR ¶ 2.g). His January 2015 CBR (GX 3) reflects the same four 
unsatisfied judgments and two student loans totaling $67,038.  
 
 The unsatisfied judgments against Applicant were incurred for rent while in 
college. He had roommates who moved out, leaving him liable for the entire amount of 
the rent. He is financially unable to satisfy the judgments. (Tr. 20-22.) He has never 
contacted the judgment creditors directly regarding partial payments or a payment plan. 
(Tr. 79.) 
 
In Applicant’s Answer and at the hearing, he stated that the $274 collection 
account, listed on his CBR as a medical account, actually was for an online class that 
he tried to drop when his computer failed. (Tr. 23.) He contacted a debt-management 
company about six months before the hearing, but he has not yet paid the company’s 
initial fee. (Tr. 61.) He has obtained advice from his bank about ways to resolve his 
debts and improve his credit score. (Tr. 72.) 
 
Applicant has also contacted another debt-management company to help him 
resolve his student loans, which have been in a deferred status. He realizes that the 
deferments of his student loans are about to end. He has not yet paid the $150 fee to 
start the loan-consolidation process. (Tr. 71.) He intends to pay the $150 after he files 
his income tax returns and receives a refund. (Tr. 23-24; AX A.) He has delayed filing 
his income tax return because he is seeking advice on whether he can claim one of his 
children, who does not live with him, as a dependent. (Tr. 68-69.)  
 
 Applicant and his fiancée each have monthly take-home pay of about $2,000. 
Their net monthly remainder is $200-$300 per month. (Tr. 62-63.) 
 
 Applicant testified that he recognizes that he was an alcohol abuser when he was 
involved in the two DWI incidents. The collateral consequences of his DWI convictions 
                                                          
1 The probation violation is alleged in SOR ¶ 1.c, which is mislabeled in the SOR as ¶ 1.a. On my own 
motion, I have corrected the SOR. 
 
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have convinced him to change his lifestyle. He now limits his alcohol consumption to an 
occasional beer. (Tr. 51.) 
 
 Applicant is actively involved in his church, his family, and his community. His 
pastor submitted a letter describing his involvement with church youth programs and 
describing him as a strong, dependable person. (AX F.) His fiancée submitted a letter 
describing his close bonds with his children and his efforts to financially support his 
family. (AX C.)  
 
 Applicant’s supervisor at the shipyard describes him as one of his most 
trustworthy team members. He states that Applicant is dedicated, enthusiastic, and 
capable of performing tasks usually completed by veteran pipe fitters. (AX E.) 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available and reliable information about the 
person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
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 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 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 the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline J, Criminal Conduct 
 
The concern raised by criminal conduct is set out in AG ¶ 30: “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.” Applicant’s record of arrests and convictions establishes two 
disqualifying conditions under this guideline: AG ¶ 31(a) (“a single serious crime or 
multiple lesser offenses”) and AG ¶ 31(c) (“allegation or admission of criminal conduct, 
regardless of whether the person was formally charged, formally prosecuted, or 
convicted”).  
 
The following mitigating conditions are relevant: 
 
AG ¶ 32(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 
 
AG ¶ 32(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.  
 
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Both mitigating conditions are established. The references to passage of time in 
AG ¶¶ 32(a) and 32(b) focus on whether the criminal conduct was recent. There are no 
Abright line@ rules for determining when conduct is Arecent.@ The determination must be 
based on a careful evaluation of the evidence. See ISCR Case No. 02-24452 at 6 (App. 
Bd. Aug. 4, 2004). If the evidence shows Aa significant period of time has passed 
without any evidence of misconduct,@ then an administrative judge must determine 
whether that period of time demonstrates Achanged circumstances or conduct sufficient 
to warrant a finding of reform or rehabilitation.@ Id. More than three years have passed 
since Applicant’s last DWI conviction. He has fulfilled all the conditions of his probation, 
except for the interlock device. He is remorseful. He has performed well at work and 
gained the respect of his supervisor. He is actively involved in his church and his 
community.  
 
Guideline F, Financial Considerations 
 
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 classified 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 classified 
information. See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012). 
 
 Applicant’s admissions, corroborated by his CBRs, establish two disqualifying 
conditions under this guideline: AG ¶ 19(a) (“inability or unwillingness to satisfy debts”) 
and AG ¶ 19(c) (“a history of not meeting financial obligations”). 
 
 The following mitigating conditions under this guideline are potentially applicable: 
 
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; 
 
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 
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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 debts are numerous, unresolved, and 
did not occur under circumstances making them unlikely to recur. 
 
 AG ¶ 20(b) is not fully established. Applicant’s financially irresponsible 
roommates in college and his periods of unemployment and underemployment after 
graduation from college were conditions beyond his control. However, two of the 
judgments were filed against him in 2008 and two were filed in 2010, but he has never 
contacted the creditors about resolving them. He did not contact any debt-management 
companies or seek financial counseling until recently.  
 
 AG ¶ 20(c) is not fully established. Applicant has contacted two debt-
management companies and received financial advice from his bank, but his financial 
problems are not resolved or under control.  
 
 AG ¶ 20(d) is not established. Applicant has not paid any of the delinquent debts 
or made payment agreements with any creditors. He has not paid the initial fees for 
either of the two debt-management companies he has contacted.  
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an 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. 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 
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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.  
 
 I have incorporated my comments under Guidelines J and F in my whole-person 
analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but 
some warrant additional comment. 
 
 Applicant was candid and sincere at the hearing. He appears to have matured 
since 2011. He is a good employee, a responsible father, and a productive member of 
his church and his community. However, he lacks the means to begin resolving his 
debts, and his lack of financial resources is largely attributable to the collateral 
consequences of his two DWI convictions. Now that he has resolved those 
consequences, he is in a better position to begin establishing a track record of financial 
responsibility. He may be able to qualify for a security clearance at some time in the 
future. However, it is too soon to determine that the security concerns raised by his 
financial situation are mitigated. See Directive ¶ ¶¶ E3.1.37-E3.1.39 (reapplication 
permitted after one year).  
 
 After weighing the disqualifying and mitigating conditions under Guideline J and 
F, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has mitigated the security concerns raised by his criminal conduct, but he has 
not mitigated the security concerns raised by his delinquent debts. Accordingly, I 
conclude he has not carried his burden of showing that it is clearly consistent with the 
national interest to grant him eligibility for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline J (Criminal Conduct):  FOR APPLICANT 
 
  Subparagraphs 1.a-1.c:    For Applicant 
 
 Paragraph 2, Guideline F (Financial Considerations): AGAINST APPLICANT 
 
  Subparagraphs 2.a-2.g:    Against Applicant 
 
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Conclusion 
 
 I conclude that 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. 
 
 
 
LeRoy F. Foreman 
Administrative Judge