DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 12-10507
)
)
Applicant for Security Clearance )
Appearances
For Government: Eric Borgstrom, Esquire, Department Counsel
For Applicant: Pro se
March 30, 2016
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on April 19, 2012.  On May 30, 2015, the Department of Defense (DOD) issued
a Statement of Reasons (SOR) detailing the security concerns under Guideline F 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 answered the SOR in writing on June 19, 2015, and requested an
Administrative Determination by an administrative judge.  Department Counsel issued a
File of Relevant Material (FORM) on October 14, 2015.  Applicant responded to the
FORM (Response) on November 18, 2015.  Department Counsel had no objection, and
the Response is entered into evidence.  The case was assigned to me on December 8,
2015.  Based upon a review of the pleadings and exhibits, eligibility for access to
classified information is granted.
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Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Paragraphs 1.a., and 1.b. of the SOR, with explanations.  He denied the factual
allegations in Paragraph 1.c. of the SOR.
Guideline F - Financial Considerations
Applicant is a 49 year-old employee of a federal contractor for whom he has
worked for nearly 28 years.  (Item 3 at pages 5 and 9).  He attributes his financial
difficulties to his wife’s “short term disability” early in 2008, and her changing jobs
“between 2008 and 2009 . . . to be closer to home and medical appointments.”
(Response at page 2.)  Applicant now lives within his monthly budget.  (Response at
“addendum” 7.)
1.a. and 1.b.  It is alleged that Applicant failed to file his Federal and state income
tax returns for tax years “2006, 2007, 2008 and 2009.”  These allegations are based on
an uncertified subject interview taken from the Applicant in July of 2012.  (Item 6.)  This
uncertified interview is suspect, at best, as there is no mention of his failing to file a
Federal income tax return for tax year 2007.  (Item 6 at page 2.)  That being said, it is
clear that Applicant did have difficulties filing past Federal and state income tax returns
in a timely fashion.  As a result, in June of 2015, he hired a Certified Public Accountant
(CPA) to address his tardy returns.  (Item 2 at page 7.)  Said CPA has now filed
Applicant’s delinquent Federal and state income tax returns, as evidenced by those
returns.  (Response at “addendum[s]” 2 and 4.)  He has also submitted additional
Federal and state tax returns demonstrating that he is current with these taxing
authorities.  (Response at “addendum 1.)  I find that Applicant has made a good-faith
effort to file his delinquent tax returns.
1.c.  Applicant denies that he is indebted to Creditor C for an auto in the amount
of about $21,000.  He has submitted a letter from Creditor C stating that the “loan was
paid in full on 11/12/2013 in the amount of $8,702.34.”  (Item 2 at page 6.)  However, in
the FORM, Department Counsel points to a September 2015 credit report showing a
past-due amount of $3,033.  (Item 4 at page 2.)  In his Response, Applicant has
answered this concern by submitting a November 2015 document from Creditor C
demonstrating Applicant is current with Creditor C.  (Response at “addendum” 6.)  I find
that Applicant has made a good-faith effort to address this debt.
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
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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.
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.
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The guideline notes two conditions that could raise security concerns.  Under
Subparagraphs 19(a) and 19(c) an “inability or unwillingness to satisfy debts,” and “a
history of not meeting financial obligations.” may raise security concerns.  Applicant had
delinquent taxes and a delinquent car loan.  Under Subparagraph 19(g) “failure to file
annual Federal, state . . . income tax returns as required” may also raise security
concerns.  Applicant failed to file several years of tax returns in a timely fashion.
However, I find two countervailing Mitigating Conditions that are applicable here.  Under
Subparagraph 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. . .
unexpected medical emergency . . .), and the individual acted responsibly under the
circumstances.”  Applicant’s failure to file tax returns in a timely fashion and his
delinquent car loan can be attributed to his wife’s ill health and her related loss of
income.  Under Subparagraph 20 (d), it may also be mitigating where “the individual
initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.”
Applicant has filed his delinquent income tax returns, is current with those taxing
authorities, and is current with his car loan.  Financial Considerations is found for
Applicant.
Under the whole-person concept, the administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of Applicant’s
conduct and all the circumstances.  Under 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.  The record evidence leaves me without
questions and doubts as to Applicant’s eligibility and suitability for a security clearance.
For this reason, I conclude Applicant has mitigated the security concerns arising from
his Financial Considerations, under the whole-person concept.
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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
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 security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge