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                          DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ADP Case No. 15-00457
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)
Applicant for Public Trust Position )
Appearances
For Government: Carroll Connelley, Esquire, Department Counsel
For Applicant: Pro se
                                                                            
May 24, 2016
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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 his Questionnaires for Public Trust Position (SF 85P), on
March 18, 2014.  On July 30, 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 on September 8, 2015.  A File of
Relevant Material (FORM) was issued on October 15, 2015.  Applicant did not respond
to the FORM.  I received the case assignment on January 7, 2016.  Based upon a
review of the pleadings and exhibits, eligibility for access to sensitive information is
denied.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶
1.a.~1.d, 1.h., 1.i. and 1.k. of the SOR, with explanations.  He denied the factual
allegations in ¶¶ 1.e.~g. and 1.j. of the SOR.  Furthermore, Applicant provided no
additional information to support his request for eligibility for a public trust position.
Guideline F - Financial Considerations
Applicant is 28 years old, was awarded an “Associate’s” Degree in 2009, but
when his “parents passed away in 7/2011 and 4/2012 . . . [he] chose to enter the
workforce instead of pursuing a degree.”  (Item 2 at pages 5, 12~13.)
1.a.  Applicant admits that he failed to file his Federal and State income tax
returns for tax years 2012 and 2013.  As he has offered nothing further in this regard,
this allegation is found against Applicant.
1.b.  Applicant admits that he is indebted to Creditor B for a past-due debt in the
amount of about $403.  As he has offered nothing further in this regard, this allegation
is also found against Applicant.
1.c.  Applicant admits that he is indebted to Creditor C for a past-due debt in the
amount of about $473.  As he has offered nothing further in this regard, this allegation
is found against Applicant.
1.d.  Applicant admits that he is indebted to Creditor D for a past-due debt in the
amount of about $105.  As he has offered nothing further in this regard, this allegation
is found against Applicant.
1.e.~1.g.  Applicant denies that he is indebted to Creditor E for past-due debts
totaling about $14,112.  As he has offered nothing further in this regard; and as these
past-due debts do appear on Applicant’s April 2014 credit report, these allegations are
found against Applicant.  (Item 4 at page 5.)
1.h.  Applicant admits that he is indebted to Creditor H for a past-due debt in the
amount of about $470.  As he has offered nothing further in this regard, this allegation
is found against Applicant.
1.i.  Applicant admits that he is indebted to Creditor I for a past-due debt in the
amount of about $374.  As he has offered nothing further in this regard, this allegation
is found against Applicant.
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1.j.  Applicant denies that he is indebted to Creditor J for a past-due debt in the
amount of about $230.  As he has offered nothing further in this regard; and as this
past-due debt does appear on Applicant’s April 2014 creditor report, this allegation is
found against Applicant.  (Item 4 at page 9.)
1.k.  Applicant admits that he is indebted to Creditor K for a past-due debt in the
amount of about $177.  As he has offered nothing further in this regard, this allegation
is found against Applicant.
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.
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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.
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 debt.  Finally, under
AG & 19(g), “failure to file Federal, state, or local income tax returns as required@ may
also raise security concerns.  He has yet to file 2012 and 2013 Federal and State
income tax returns.  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.  However, I find no
countervailing mitigating conditions that are applicable here.  Applicant has done
nothing to answer the Government’s concerns.
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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.  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 failed to mitigate the
trustworthiness concerns arising from his 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
Subparagraph 1.f: Against Applicant
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Subparagraph 1.g: Against Applicant
Subparagraph 1.h: Against Applicant
Subparagraph 1.I: Against Applicant
Subparagraph 1.j: Against Applicant
Subparagraph 1.k: 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