The Response was resent on September 21, 2015. 1
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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------------------- )       ADP Case No. 14-06888
)
)
Applicant for Public Trust Position )
Appearances
For Government: Tovah Minster, 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 June 10, 2015, 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 June 30, 2015,  and she1
requested that her case be decided on the written record in lieu of a hearing. (Item 1.)
On October 5, 2015, Department Counsel issued the Department's written case. A
complete copy of the file of relevant material (FORM) was provided to Applicant. In the
Department Counsel submitted six Items in support of the SOR allegations. Item 3 is inadmissible and will2
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 June 27, 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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FORM, Department Counsel offered six documentary exhibits. (Items 1-6.)  Applicant2
acknowledged receipt of the FORM October 15, 2015. She was given 30 days from
receipt of the FORM to submit any additional documentation. Applicant elected not to
submit any additional information. The case was assigned to this Administrative Judge
on December 15, 2015. Based upon a review of the pleadings and exhibits, eligibility to
occupy a sensitive position is denied.
Findings of Fact
Applicant is 34 years old, and single. She is an honorably discharged veteran of
the Air Force. She has been employed by a healthcare provider since 2013, 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 18 delinquent debts, totaling approximately $32,031. Applicant
admitted allegations 1.a, 1.e, and 1.r, with explanations. She denied the other
allegations, also with explanations. The existence and amounts of all the debts is
supported by credit reports dated June 8, 2013; and October 9, 2014. (Items 6 and 5.)
The three debts Applicant admits (1.a, 1.e, and 1.r) are all student loan debts
owed to the Department of Education. They total $12,032. She states in her Response
concerning all three, “I have been in contact with the Dept. Of Veteran’s Affairs due to
issues with my G.I. Bill covering my expenses correctly. Due to nothing being resolved, I
will be paying this debt and following up with the VA at a later time.” Applicant submitted
no other information concerning these debts, including evidence concerning payments
made, or the existence of payment arrangements. They are unresolved.
Concerning the other debts, Applicant submitted documentation showing that she
filed for relief under Chapter 7 of the Bankruptcy Code on September 22, 2014.
Schedule F of her bankruptcy petition indicated that she had $57,941 in unsecured
nonpriority debts. She was granted a discharge of her dischargeable debts on
December 29, 2014, which includes all the other debts in the SOR. (Items 1 and 4.)
Those debts are resolved through bankruptcy. 
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Most of the debts in the SOR that are not student loans are medical in nature.
However, Applicant did not submit any information as to how the debts were incurred.
She did not submit a budget, or any other information concerning her financial situation.
Based on the available record, I am unable to determine whether she has the means
and ability to resolve her past-due indebtedness, or the ability to avoid financial
problems in the future. 
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
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[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 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
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these disqualifying conditions apply to Applicant in this case. The evidence has
established that Applicant accumulated significant delinquent debt, a substantial part of
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
so long ago, was infrequent, or is unlikely to recur. That is inapplicable because the
debts have been in existence for several years and the student loans 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.” As stated, many of the
debts resolved through bankruptcy are medical in nature. Under the particular
circumstances of this case, I find that Applicant has acted responsibly under the
circumstances concerning those debts.
Applicant did take the counseling required by the Bankruptcy Code to better
manage her finances. I find that AG ¶ 20(c) is applicable. With regard to the debts
discharged, AG ¶ 20(d) is applicable, since Applicant has “initiated a good-faith effort to
repay overdue creditors or otherwise resolve debts.” However, there is no current
evidence that she has paid or resolved the student loan 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.      
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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 concrete efforts to resolve the past-due student loan
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.
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: Against Applicant
Subparagraphs 1.b through 1.d: For Applicant
Subparagraph 1.e: Against Applicant
Subparagraphs 1.f through 1.q: For Applicant
Subparagraph 1.r: 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