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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ADP Case No. 14-03217
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)
Applicant for Public Trust Position )
Appearances
For Government: Richard Stevens, Esquire, Department Counsel
For Applicant: Pro se
                                                                            
July 2, 2015
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Decision
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CEFOLA, Richard A., Administrative Judge:
On April 9, 1993, the Composite Health Care Systems Program Office
(CHCSPO), the Defense Office of Hearings and Appeals (DOHA), and the Assistant
Secretary of Defense for Command, Control, Communications and Intelligence (ASD
C3I) entered into a memorandum of agreement for DOHA to provide trustworthiness
determinations for contractor personnel employed in Information Systems Positions as
defined in DoD Regulation 5200.2-R, Personnel Security Program (Regulation), dated
January of 1987.
Applicant submitted her Questionnaires for Public Trust Position (SF 85P), on
March 12, 2013.  On August 12, 2014, the Department of Defense (DOD) issued a
Statement of Reasons (SOR) detailing the trustworthiness concerns under Guideline F
regarding 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.
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Applicant answered the SOR in writing (Answer) on September 24, 2014, and
requested an Administrative Determination by an administrative judge.  Department
Counsel issued a File of Relevant Material (FORM) on February 20, 2015.  Applicant
responded to the FORM (Response) on or about May 11, 2015.  Department Counsel
had no objection, and the documents are entered into evidence.  The case was
assigned to me on May 27, 2015.  Based upon a review of the pleadings and exhibits,
eligibility for access to classified information is denied.
Findings of Fact
In her Answer to the SOR Applicant admitted the factual allegations in
Paragraphs 1.c., and 1.d. of the SOR, with explanations.  She denied the factual
allegations in Paragraphs 1.a., 1.b., and 1.e. of the SOR.
Guideline F - Financial Considerations
Applicant is 36 years old.  Neither in her Answer nor in her Response does
Applicant explain how she incurred her current financial difficulties.  (Item 2 at page 3.)
1.a. and 1.b.  It is alleged that Applicant is indebted to the U.S. Department of
Education for past-due student loans totaling about $43,425.  (Item 4 at page 5.)  She
avers that she is addressing this extremely large past-due debt by having her income
tax refund withheld, and diverted to the Department of Education.  Her diverted refund
payment for 2014 was $1,243.50, and for 2015 was $1,201.  (Answer at page 5, and
Response at page 5.)  However, this methodology of payment is not a good-faith effort
to repay this debt.  Even without considering the interest that this debt may accrue; and
assuming Applicant will get similar refunds diverted in the future, it will take her more
than 35 years to pay this debt.  These allegations are found against Applicant.
1.c. and 1.d.  Applicant admits that she is indebted to Creditor C for a past-due
student loan in an amount totaling about $1,032.  In her Answer, she avers that “my
account has been deferred until 11-4-2014.”  However, it is now well after November
2014, and Applicant has offered nothing further in this regard.  These allegations are
also found against Applicant.
1.e.  It is alleged that Applicant is indebted to Creditor E for a past-due debt in
the amount of about $696.  (Item 4 at page 17.)  In her Answer, she avers the following:
I have submitted a copy of the newly established contract [dated
“09/09/14"] with . . . [Creditor E].  The signing of the contract with . . .
[Creditor E], was an agreement made to have my account removed from
collections, by agreeing to pay $44.99 monthly for the term.
However, it is now well after September 2014, and Applicant has offered nothing further
in this regard.  This allegation is found against Applicant.
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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 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 AG.
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 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 applicant or proven by Department Counsel. . . .”  The
Applicant has the ultimate burden of persuasion as to obtaining a favorable
trustworthiness decision.
A person who seeks access to sensitive 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 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.
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Section 7 of Executive Order (EO) 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 trustworthiness concern relating to the guideline for Financial Considerations
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 [sensitive] 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 trustworthiness concerns.
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.  Applicant has significant past-due debts, many of which
she has not yet resolved.  I can find no countervailing Mitigating Condition that is
applicable here.
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 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.
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) 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.
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I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Overall, the record evidence leaves me
with questions and doubts as to Applicant’s eligibility and suitability for a public trust
position. For all these reasons, I conclude Applicant has not mitigated the
trustworthiness concerns arising from her financial considerations. 
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: AGAINST APPLICANT
Subparagraph 1.a. Against Applicant
Subparagraph 1.b. Against Applicant
Subparagraph 1.c. Against Applicant
Subparagraph 1.d. Against Applicant
Subparagraph 1.e. Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a public trust
position.  Eligibility for access to sensitive information is denied.
Richard A. Cefola
Administrative Judge