1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 14-06239 ) ) Applicant for Security Clearance ) Appearances For Government: Jeff Nagel, Esquire, Department Counsel For Applicant: Pro se October 6, 2015 ______________ Decision ______________ CEFOLA, Richard A., Administrative Judge: Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on April 22, 2014. On March 28, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines F and E 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. Applicant acknowledged receipt of the SOR on April 15, 2015. He answered the SOR in writing (Answer) on April 29, 2015, and requested a hearing before an Administrative Judge. The Defense Office of Hearings and Appeals (DOHA) received the request soon thereafter, and I received the case assignment on July 13, 2015. DOHA issued a notice of hearing on July 16, 2015, and I convened the hearing as scheduled on August 12, 2015. The Government offered Exhibits (GXs) 1 through 4, 2 which were received without objection. Applicant testified on his own behalf. DOHA received the transcript of the hearing (TR) on August 21, 2015. I granted Applicant’s request to keep the record open until September 11, 2015, to submit additional matters. On September 10, 2015, he submitted Exhibit (AppX) A, which was received without objection. The record closed on September 11, 2015. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is denied. Findings of Fact In his Answer to the SOR, Applicant admitted all the factual allegations in the Subparagraphs of the SOR, with explanations. He also provided additional information to support his request for eligibility for a security clearance. Guideline F -Financial Considerations Applicant is a 31 year old high school graduate, who works for a Government contractor. (TR at page 18 line 8 to page 20 line 7.) He has been unemployed for about five of the last ten years, which has caused his current financial difficulties. (TR at page 18 line 8 to page 20 line 7, and at page 26 line 12 to page 31 line 20.) As far as his monthly budget is concerned, at the end of the month, he and his wife “break even pretty much.” (TR at page 26 line 12 to page 31 line 20.) 1.a. Applicant admits that he is indebted to Creditor A for a credit card debt in the amount of about $6,570. (TR at page 22 line 16 to page 25 line 19.) He avers that he has reached out to this creditor, but admits that this debt is still outstanding. (Id.) 1.b. Applicant admits that he is indebted to Creditor B for “an old cell phone” debt in the amount of about $210. (TR at page 34 line 2 to page 35 line 21.) He avers that he has also reached out to this creditor, but admits that this debt is still outstanding. (Id.) 1.c. and 1.d. Applicant admits that he is indebted to Creditor C for two medical debts in the amount of about $162 and $20, respectively. (TR at page 35 line 22 to page 37 line 14.) He has submitted a post-hearing exhibit showing he has paid the $20 debt, but the $162 debt is still outstanding. (AppX A at page 1.) 1.e. Applicant admits that he is indebted to Creditor E for another cell phone debt in the amount of about $386. (TR at page 37 line 15 to page 38 line 7.) He avers that “it’s been a while” since he has contacted this creditor, and admits that this debt is still outstanding. (Id.) 1.f. Applicant admits that he is indebted to Creditor F for an internet debt in the amount of about $421. (TR at page 38 line 8 to page 39 line 7.) He does not recall the last time that he has contacted this creditor, and admits that this debt is still outstanding. (Id.) 3 1.g. Applicant admits that he is indebted to Creditor G for a credit card debt in the amount of about $2,834. (TR at page 39 lines 8~23.) He avers that he paid $50 towards this debt in April of 2015; but nothing else, and admits that this debt is still outstanding. (Id. And Answer at 3.) Guideline E - Personal Conduct 2.a. Applicant answered “No” to “Section 26: Financial Record: In the past seven (7) years, have you defaulted on any type of loan; had bills or debts turned over to a collection agency, had any account or credit suspended, charged off, or cancelled for failing to pay as agreed; been or currently 120 days delinquent on any debt?” (GX 1 at page 33.) He avers that it was a simple oversight on his part, but he could have easily answered his e-QIP honestly, which he certified as “true, complete, and correct.” (TR at page 42 line 24 to page 44 line 18, and at page 45 line 25 to page 46 line 22.) I find it to be a wilful falsification. 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. 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 Paragraph 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. Paragraph 2(b) requires that “[a]ny 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 Paragraph E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive Paragraph 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. 4 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 concern relating to the guideline for Financial Considerations is set out in Paragraph 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. The guideline notes several conditions that could raise security concerns. Under Subparagraph 19(a), an “inability or unwillingness to satisfy debts@ is potentially disqualifying. Similarly under Subparagraph 19(c), “a history of not meeting financial obligations@ may raise security concerns. Applicant has significant past due debts that he has yet to address. The evidence is sufficient to raise these potentially disqualifying conditions, requiring a closer examination. The guideline also includes examples of conditions that could mitigate security concerns arising from financial difficulties. Subparagraph 20(d) applies where the evidence shows “the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.@ Applicant has failed to submit any documentation showing that he has made a good-faith effort to address the vast majority of his significant past- due debts. I can find no other countervailing Mitigating Condition that is applicable here. Financial Considerations are found against the Applicant. 5 Guideline E - Personal Conduct The security concern relating to the guideline for Personal Conduct is set out in Paragraph 15: “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.” The following Disqualifying Condition under Subparagraph 16(a) applies. It provides that the “deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire . . . or similar form used to conduct investigations . . .” may be disqualifying. I can find no countervailing Mitigating Condition here, as the Applicant could have easily answered his e-QIP honestly, which he certified as “true, complete, and correct.” Personal Conduct is found against the 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. Under AG Paragraph 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. The Administrative Judge should also consider the nine adjudicative process factors listed at AG Paragraph 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 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 considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. Although Applicant is well respected in the work place (AppX A at pages 2~7), the record evidence leaves me with questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For these reasons, I conclude Applicant has not mitigated the security concerns arising from his Financial Considerations, and Personal Conduct. 6 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 Subparagraphs 1.a.~1.c. Against Applicant Subparagraph 1.d. For Applicant Subparagraphs 1.e.~1.g. Against Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraph 2.a: 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 security clearance. Eligibility for access to classified information is denied. Richard A. Cefola Administrative Judge