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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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-------------------- )       ADP Case No. 14-05202
)
)
Applicant for Public Trust Position )
Appearances
For Government: Gregg A. Cervi, Esquire, Department Counsel
For Applicant: Pro se
July 14, 2016
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Decision
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ROSS, Wilford H., Administrative Judge:
On December 2, 2014, in accordance with Department of Defense (DoD)
Directive 5220.6, the DoD issued a Statement of Reasons (SOR) detailing the
trustworthiness concerns under Guideline F for Applicant. (Item 1.) The action was
taken under Executive Order 10865, Safeguarding Classified Information within Industry
(February 20, 1960), as amended; DoD 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 replied to the SOR in writing (Response) on February 19, 2015, and
she requested that her case be decided on the written record in lieu of a hearing. (Item
2.) On September 25, 2015, Department Counsel issued the Department's written case.
A complete copy of the file of relevant material (FORM) was provided to Applicant. In
Department Counsel submitted five Items in support of the SOR allegations. Item 5 is inadmissible and will1
not be considered or cited as evidence in this case. It is the summary of an unsworn interview of Applicant
conducted by an interviewer from the Office of Personnel Management on February 20, 2013. It was never
adopted by Applicant as her own statement, or otherwise certified by her to be accurate. Under EO 10865
Section 5, and Directive ¶ E3.1.20, this Report of Investigation summary is inadmissible in the absence of an
authenticating witness. Given Applicant’s admissions, it is also cumulative. 
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the FORM, Department Counsel offered five documentary exhibits. (Items 1-5.)1
Applicant acknowledged receipt of the FORM October 19, 2015. She was given 30 days
from receipt of the FORM to submit any additional documentation. Applicant submitted
an additional written statement after the 30 day period. Department Counsel elected not
to object and the statement is admitted into evidence as Applicant Exhibit A. The case
was assigned to this Administrative Judge on December 8, 2015. Based upon a review
of the pleadings and exhibits, eligibility to occupy a sensitive position is denied.
Findings of Fact
Applicant is 51 years old, and married. She has been employed by a healthcare
provider since 1996, and she seeks access to sensitive information in connection with
her employment.
Paragraph 1 - Guideline F, Financial Considerations
The Government alleges in this paragraph that Applicant is ineligible for access
because she has a history of financial irresponsibility, which shows poor self-control,
lack of judgment, or untrustworthiness.
The SOR lists 14 delinquent debts, totaling approximately $63,182. Applicant
admitted all of the allegations under this paragraph without reservation, except for 1.i.
Those admissions are findings of fact. The existence and amounts of all the debts is
supported by a credit report dated April 8, 2014. (Item 4.)
Applicant stated that her financial difficulties began in about 2007 when she
bought a house. At the same time her mother-in-law became ill and was hospitalized
until she died. This adversely affected Applicant’s finances because her husband was
on disability and could not work, and their second income was based on Applicant being
the caretaker of the mother-in-law. (Item 3 at Section 26; Applicant Exhibit A.) 
With regard to all the admitted debts, Applicant failed to supply any evidence
concerning responsibility for the debts, payments made, or the existence of payment
arrangements. With regard to 1.i, she stated in her Response that there was a judgment
concerning that debt, and her pay was being garnished in the amount of $300 a month
to resolve it. She further stated that the last payment was supposed to be in January
2015. However, no further information was provided by the Applicant concerning this
debt. Based on the available record I find that it is not resolved. In addition, I find that all
of the other debts set forth in the SOR have also not been resolved.
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Applicant provided no evidence concerning the quality of her professional
performance, the level of responsibility her duties entail, or her track record with respect
to handling sensitive information. She submitted no character references or other
evidence tending to establish good judgment, trustworthiness, or reliability. I was unable
to evaluate her credibility, demeanor, or character in person since she elected to have
her case decided without a hearing. 
Policies
Positions designated as ADP I, ADP II, and ADP III are classified as “sensitive
positions.” (See DoD Regulation 5200.2-R (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 the DoD and 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 to occupy a sensitive position, 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 sensitive 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 AG ¶ 2(a) describing 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
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responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by the applicant or proven by Department Counsel. . . .” The
applicant has the ultimate burden of persuasion as to obtaining a favorable access
decision. 
A person who seeks to occupy a sensitive position 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 that 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 10865 provides that adverse 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
Paragraph 1 - 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
and could potentially apply in this case. 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 trustworthiness concerns. I find that both of
these disqualifying conditions apply to Applicant in this case. The evidence has
established that Applicant accumulated significant delinquent debt, which she has been
unable or unwilling to pay.
AG ¶ 20 provides conditions that could mitigate trustworthiness concerns from
financial difficulties. AG ¶ 20(a) states it may be mitigating when the behavior happened
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so long ago, was infrequent, or is unlikely to recur. That is inapplicable because the
debts have been in existence for many years and continue to date.
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.” The loss of Applicant’s
second income because of the hospitalization of her mother-in-law is arguably a
condition beyond her control. However, Applicant submitted no evidence showing how
she has attempted to resolve any of the admitted debt, even the smallest, subparagraph
1.l, in the amount of $262.
Since there is no evidence that Applicant has undertaken any kind of counseling
to better manage her finances, I do not find that AG ¶ 20(c) is applicable. Additionally, I
do not find that AG ¶ 20(d) is applicable, since Applicant has not “initiated a good-faith
effort to repay overdue creditors or otherwise resolve debts.” Finally, I do not find any
other mitigating condition applies to this case since no evidence was introduced to
establish that Applicant’s current financial status is stable or that she is able to resolve
her debts. Therefore, I find Guideline F against Applicant.
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. 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) 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.
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility to
occupy a sensitive position must be an overall commonsense judgment based upon
careful consideration of the guidelines and the whole-person concept.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Based on the lack of evidence to
establish that Applicant has made any attempt to resolve the past-due debts listed on
the SOR, I find that the record evidence leaves me with significant questions and doubts
as to Applicant’s eligibility and suitability for access to sensitive information, under the
whole-person concept. For all these reasons, I conclude Applicant has not mitigated the
trustworthiness concerns 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 ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline F: AGAINST APPLICANT
Subparagraphs 1.a - 1.n: 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 to occupy a
designated ADP I/II/III sensitive position. Eligibility for access to sensitive information is
denied.
                                              
Wilford H. Ross
Administrative Judge