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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ADP Case No. 14-01098
)
)
Applicant for Public Trust Position )
Appearances
For Government: Braden M. Murphy, Esquire, Department Counsel
For Applicant: Pro se
                                                                            
November 12, 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
May 31, 2013.  On April 1, 2015, 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 April 17, 2015.  Department
Counsel issued a File of Relevant Material (FORM) on June 17, 2015.  Applicant
responded to the FORM (Response) on August 24, 2015, with a very comprehensive
32 page Response.  Department Counsel had no objection, and the documents are
entered into evidence.  The case was assigned to me on September 3, 2015.  Based
upon a review of the pleadings, exhibits, and testimony, eligibility for access to sensitive
information is granted.
Procedural and Evidentiary Rulings
Motion to Amend SOR
Department Counsel moved to amend the SOR “to reflect that Applicant seeks a
Determination of Public Trust, not a Security Clearance.”  (Form at page 2~3.)
Applicant had no objection; and as such, it is so amended.
Findings of Fact
In her Answer to the SOR, Applicant admitted the factual allegations in
Paragraphs 1.a.~1.c. of the SOR, with explanations.  She denied the factual allegations
in Paragraphs 1.d.~1.f. of the SOR.
Guideline F -Financial Considerations
Applicant is a 38-year-old employee of a “Federal Contractor.”  (Item 3 at pages
5 and 10.)  She attributes her past-due debts “to family illness, deaths and college.”
(Item 3 at page 25.)  Applicant has engaged the services of a “Financial Consultant” to
address the Government’s concerns.  (Answer at page 3, and Response at page 1.)
1.a.  Applicant admits she was indebted to Creditor A for a past-due debt in the
amount of about $6,304.  Through the services of her Financial Consultant, this debt
was settled for $4,950 and paid, as evidenced by documentation in Applicant’s
Response.  (Response at pages 3~30.)
1.b.  Applicant admits she was indebted to Creditor B for a past-due debt in the
amount of about $8,519.  Through the services of her Financial Consultant, this debt
was settled for $5,111 and paid, as evidenced by documentation in Applicant’s
Response.  (Response at pages 3~30.)
1.c.  Applicant admits she was indebted to Creditor C for a past-due debt in the
amount of about $2,215.  Through the services of her Financial Consultant, this debt
was settled for $664 and paid, as evidenced by documentation in Applicant’s
Response.  (Response at pages 3~30.)
1.d.  Applicant denies she was indebted to Creditor D for a past-due debt in the
amount of about $189.  Through the services of her Financial Consultant, this debt was
paid, as evidenced by documentation in Applicant’s Answer.  (Answer at page 4.)
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1.e. and 1.f.  Applicant denies she was indebted to Creditor E for two past-due
debts totaling about $212.  Through the services of her Financial Consultant, these
debts were paid, as evidenced by documentation in Applicant’s Answer.  (Answer at
pages 5~6.)
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
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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 (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 accumulated some delinquent debt and was
unable to pay these obligations for a period of time.  The evidence is sufficient to raise
these potentially disqualifying conditions, requiring a closer examination.
The guideline also includes examples of conditions that could mitigate
trustworthiness concerns arising from financial difficulties.  Under AG & 20(b), it may be
mitigating where “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.@ In part, Applicant attributes her past
financial difficulties to illness and death in her family.  She has since acted responsibly;
and with the help of a Financial Consultant, has resolved her past-due debts.  I find this
potentially mitigating condition is a factor for consideration in this case.
Evidence that “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@
is potentially mitigating under AG & 20(c).  Similarly, AG & 20(d) applies where the
evidence shows “the individual initiated a good-faith effort to repay overdue creditors or
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otherwise resolve debts.@  Applicant received valuable consultation and has resolved all
the delinquent debts, either by payment or settlement and payment.  I conclude these
potentially mitigating conditions 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 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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Those who know Applicant in the work
place speak must highly of her.  (Response at pages 31~32.)  Overall, the record
evidence leaves me without questions or doubts as to Applicant’s eligibility and
suitability for a public trust position. For all these reasons, I conclude Applicant
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: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
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Subparagraph 1.e: For Applicant
Subparagraph 1.f: 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 information is granted.
Richard A. Cefola
Administrative Judge