1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)
[NAME REDACTED] )       ISCR Case No. 15-01165
)
)
Applicant for Security Clearance )
Appearances
For Government: Douglas Velvel, Esq., Department Counsel
For Applicant: Patrick K. Karody, Esq.
______________
Decision
______________
MALONE, Matthew E., Administrative Judge:
Applicant mitigated the security concerns raised by his financial problems and his
arrest record. Available information did not establish that he intended to make a false
statement or to mislead the Government by omitting information about his arrest record
from his most recent security clearance application. His request for a security clearance
is granted.
Statement of the Case
On August 13, 2012, Applicant submitted an Electronic Questionnaire for
Investigations Processing (EQIP) to obtain eligibility for a security clearance required for
his employment with a defense contractor. Based on the results of the ensuing
background investigation, Department of Defense (DOD) adjudicators could not
  Required by Executive Order 10865, as amended, and by DOD Directive 5220.6 (Directive), as amended.1
 The adjudicative guidelines were implemented by the Department of Defense on September 1, 2006. These2
guidelines were published in the Federal Register and codified through 32 C.F.R. § 154, Appendix H (2006).
 SOR 1.f did not list an amount owed.3
2
determine that it is clearly consistent with the national interest for Applicant to continue
to hold a security clearance.  1
On November 2, 2015, DOD issued a Statement of Reasons (SOR) alleging
facts which raise security concerns addressed under the adjudicative guidelines  for2
financial considerations (Guideline F) and personal conduct (Guideline E). Applicant
timely responded to the SOR (Answer), provided Enclosures 1 - 9 thereto, and
requested a hearing. The case was assigned to me on March 24, 2016, and I convened
a hearing on April 26, 2016. The parties appeared as scheduled. Department Counsel
presented Government Exhibits (Gx.) 1 - 5. Applicant and one other witness testified.
Applicant also presented Applicant’s Exhibits (Ax.) A - R. A transcript of the hearing (Tr.)
was received on May 4, 2016. The record closed the same day when I received
Applicant’s post-hearing submissions, which were admitted without objection as Ax. S
and Ax. T.
Findings of Fact
Under Guideline F, the Government alleged that Applicant filed Chapter 7
bankruptcy petitions in March 2011 (SOR 1.a) and October 2011 (SOR 1.b), both of
which were dismissed. It was further alleged that Applicant owed at least $31,751  for3
five past-due or delinquent debts (SOR 1.c - 1.g). In response, Applicant admitted all
but SOR 1.c.
Under Guideline E, the Government alleged at SOR 2.a that Applicant
intentionally falsified answers in his EQIP by omitting the criminal conduct specified in
SOR 2.b - 2.f. It was further alleged that in September 1992, Applicant was convicted of
misdemeanor battery  – domestic violence (SOR 2.b); that in September 1992,
Applicant was arrested and charged with felony burglary and misdemeanor damaging
property – criminal mischief (SOR 2.c); that in April 1996, Applicant was convicted of
misdemeanor battery - domestic violence (SOR 2.d); that in March 1997, Applicant was
charged with stalking – felony battery domestic, and child neglect no great bodily harm,
a 3  degree felony (SOR 2.e); and that in January 2008, Applicant was charged withrd
aggravated stalking after an injunction, a 3  degree felony (SOR 2.f). Applicant admittedrd
SOR 2.b - 2.f, but denied 2.a and that he had any intent to mislead the Government by
his false answers. In addition to the facts established by Applicant’s admissions, I make
the following findings of fact.
Applicant is 52 years old. He and his wife have been married since September
2013. Applicant was previously married from 1995 until the marriage was annulled in
3
2009. They had one child, a daughter now 22 years old. (Answer Enclosure 5; Gx. 1;
Ax. H; Tr. 15 - 16, 34)
Applicant enlisted in the United States Navy Reserve in March 1984. He served
as a drilling reservist until retiring in May 2009. He was recalled to an extended period
of active duty in 2006 and 2007. (Answer Enclosure 7; Gx. 1; Ax. O; Tr. 46 - 47)
Applicant’s first marriage was tumultuous. The arrests alleged in SOR 2.b - 2.f
occurred during the marriage and were the result of the couple’s arguments and general
inability to get along. Applicant has no record of misconduct occurring either before his
first marriage or since. Although not included in the SOR, Applicant was arrested in
2006 and jailed for six months for violating a protective injunction. While he was jailed,
his ex-wife forged his signature on an application to refinance a VA mortgage they had
obtained in 1999 to buy their home. It was a 30-year note at 5.5 percent interest. By
2006, Applicant estimates they had about $60,000 of equity in the house. Applicant’s
ex-wife was able to cash out the equity by fraudulently refinancing their mortgage at a
new interest rate of 9.5 percent. (Answer Enclosures 2, 4 and 6; Ax. G; Tr. 15 - 16, 51 -
53, 57 - 58)
When Applicant was released from jail and realized what had happened, he
separated from his ex-wife and took action against her by filing a criminal complaint
against her with local law enforcement. He immediately contacted the mortgage
company that approved the refinance application. After establishing through a
handwriting expert that the signature his ex-wife presented was not his, he was able to
have his name removed from the deed to the house, and to have the notary’s
certification revoked. Applicant also learned that his ex-wife had not obtained a divorce
from her previous husband as she had told him. Based on the information about her
fraudulent activities and the fact that she was married to another when she married
Applicant, the union was annulled as void ab initio. (Answer Enclosures 3 - 6; Ax. G - I;
Tr. 53, 59 - 60)
For the next three or four years, Applicant worked with attorneys to try to recoup
lost funds and to correct his mortgage situation. The fraudulently refinanced mortgage
had become delinquent because Applicant was not a party to the refinancing agreement
and was not making any monthly payments. Applicant filed bankruptcy twice in 2011 as
a last resort attempt to delay foreclosure but was unsuccessful and lost the house. He
also was not paying some of his other obligations because he was led to believe he
would receive a significant amount of money from the new lender. He took out a loan
(SOR 1.d) to cover his legal fees, but did not timely repay the loan, again relying on an
expected settlement from the mortgage lender. (Answer Enclosure 1; Gx. 2 and 3; Ax. A
and J; Tr. 16 - 17, 61 - 65)
The debts alleged in the SOR all resulted from Applicant’s inaction until after he
lost the house to foreclosure. Only the debt at SOR 1.g remains unresolved. The debts
at SOR 1.c and 1.f are the same account and have been resolved, as have the rest of
the debts alleged. Applicant’s current finances are sound. He has received annual pay
 See Directive. 6.3.4
4
increases over the past few years and he has not incurred any new unpayable debts
since 2011. (Answer; Ax. B - F; Ax. S; Tr. 65 - 69)
When Applicant submitted his EQIP, he did not list any of the arrests alleged in
the SOR. He also did not list any of his financial problems or other salient information,
such as foreign travel. Applicant had submitted a similar application in 2011 but was told
to resubmit it. Applicant has never before held a security clearance for his work.
Instead, he has a Common Access Card (CAC) required to access a controlled, but
unclassified, work computer. Applicant thought the second application was a routine
requirement for his CAC and he did not take much time to complete it using a work
computer. The email directing him to resubmit his application mentions both CAC and a
secret clearance as the purpose of the application. In his 2011 EQIP, he disclosed
some of the information that he omitted from his 2012 application. (Answer; Gx. 1; Ax.
M; Ax. N; Tr. 69 - 85, 87 - 89)
Applicant has an excellent reputation for reliability and integrity among his co-
workers and personal associates. He is active in his community through his volunteer
work as a youth sports coach. His references include a letter written by a woman who
served for a time as his child’s guardian. After Applicant separated from his ex-wife, his
daughter remained with her mother. The child was sexually assaulted by Applicant’s ex-
wife’s boyfriend. The guardian remarked favorably on Applicant’s character, honesty,
and reliability throughout the nine months before Applicant was able to regain custody
of his daughter. He since has raised the girl responsibly and always had the girl’s needs
in mind. His current marriage is stable and reflective of Applicant’s maturity and
responsibility. (Answer Enclosures 8 and 9; Ax. K; Ax. P - R; Ax. T; Tr. 34 - 40)
Policies
Each security clearance decision must be a fair, impartial, and commonsense
determination based on examination of all available relevant and material information,4
and consideration of the pertinent criteria and adjudication policy in the adjudicative
guidelines (AG). Decisions must also reflect consideration of the factors listed in ¶ 2(a)
of the guidelines. Commonly referred to as the “whole-person” concept, those factors
are:
(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. 
 See Department of the Navy v. Egan, 484 U.S. 518 (1988).5
 See Egan, 484 U.S. at 528, 531.6
 See Egan; AG ¶ 2(b).7
5
The presence or absence of a disqualifying or mitigating condition is not
determinative of a conclusion for or against an applicant. However, specific applicable
guidelines should be followed whenever a case can be measured against them as they
represent policy guidance governing the grant or denial of access to classified
information.
A security clearance decision is intended only to resolve whether it is clearly
consistent with the national interest  for an applicant to either receive or continue to5
have access to classified information. The Government bears the initial burden of
producing admissible information on which it based the preliminary decision to deny or
revoke a security clearance for an applicant. Additionally, the Government must be able
to prove controverted facts alleged in the SOR. If the Government meets its burden, it
then falls to the applicant to refute, extenuate or mitigate the Government’s case.
Because no one has a “right” to a security clearance, an applicant bears a heavy
burden of persuasion.  A person who has access to classified information enters into a6
fiduciary relationship with the Government based on trust and confidence. Thus, the
Government has a compelling interest in ensuring each applicant possesses the
requisite judgment, reliability and trustworthiness of one who will protect the national
interests as his or her own. The “clearly consistent with the national interest” standard
compels resolution of any reasonable doubt about an applicant’s suitability for access in
favor of the Government.7
Analysis
Financial Considerations
Available information is sufficient to support the SOR allegations under this
guideline. The facts established reasonably raise a security concern about Applicant’s
finances that is addressed, in relevant part, at AG ¶ 18, as follows:
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.
Applicant accrued significant delinquent debt as a result of his ex-wife’s
fraudulent conduct in 2006. However, his financial problems were made worse by his
unfounded expectation of some sort of settlement payout or recoupment of expenses
6
that never occurred. Also, his decision to resort to Chapter 7 bankruptcy petitions to
delay foreclosure on his home was not well taken. As a result, his debts went unpaid.
The foregoing requires application of the disqualifying conditions at AG ¶ 19(a) (inability
or unwillingness to satisfy debts) and AG ¶ 19(c) (a history of not meeting financial
obligations).
I have also considered the following pertinent AG ¶ 20 mitigating conditions:
(a) the behavior happened so long ago, was so infrequent, or occurred
under such circumstances that it is unlikely to recur and does not cast
doubt on the individual's current reliability, trustworthiness, or good
judgment;
(b) 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;
(c) 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; and
(d) the individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts.
AG ¶ 20(a) partially applies because the circumstances that caused Applicant’s
financial problems no longer exist and are unlikely to recur. AG ¶ 20(b) applies because
the impetus for his financial difficulties was a bad marriage to a person who deliberately
and fraudulently set out to abscond with the equity in the marital residence. Applicant
bears some responsibility by neglecting his debts while waiting for funds that never
materialized. Nonetheless, he has since resolved his debts and demonstrated financial
responsibility in his current marriage. AG ¶¶ 20(c) and 20(d) apply for the same
reasons. Once it was clear that he would not recover the money he lost from the
repossession of his home and the legal fees he expended, Applicant set out to pay or
otherwise resolve his past-due debts. With one exception, he has been able to correct
his financial problems and his current finances are again sound. On balance, available
information is sufficient to mitigate the security concerns raised by the Government’s
information about Applicant’s finances.
Personal Conduct
Available information shows that Applicant was arrested five times between 1992
and 2008 for criminal offenses related to his first marriage. The record also shows he
omitted information about his arrest record from his most recent EQIP. This information
was relevant and material to an informed assessment by the Government about his
7
suitability to hold a security clearance. A security concern is, therefore, raised about
Applicant’s judgment, reliability, and trustworthiness, as expressed at AG ¶ 15:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
about an individual's reliability, trustworthiness and ability to protect
classified information. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.
As to the SOR 2.a allegation that Applicant deliberately omitted information from
his EQIP in 2012, I have considered the disqualifying condition at AG ¶ 16(a) (deliberate
omission, concealment, or falsification of relevant facts from any personnel security
questionnaire, personal history statement, or similar form used to conduct
investigations, determine employment qualifications, award benefits or status,
determine security clearance eligibility or trustworthiness, or award fiduciary
responsibilities). Applicant denied any intent to falsify his answers to the EQIP questions
about criminal conduct. Thus, the burden remained with the Government to present
sufficient reliable information to establish this controverted issue of fact. 
In light of all available information probative of Applicant’s intent at the time he
submitted the EQIP, I conclude the Government’s information is not sufficient to
establish AG ¶ 16(a). Applicant’s explanation for leaving the information off his 2012
EQIP was both plausible and credible. He had submitted an EQIP the year before in
which he had disclosed at least some of his criminal conduct, and the guidance he was
given when told to submit another EQIP was contradictory as to its purpose. Applicant’s
explanation that he did not carefully review the 2012 EQIP was reasonable under the
circumstances presented. Omission of the required information by mistake or confusion
is not disqualifying. SOR 2.a is resolved for the Applicant.
As to the misconduct addressed in SOR 2.b - 2.f, those events occurred more
than eight years ago and under circumstances not likely to recur. Applicant was in a
tumultuous marriage to a person of questionable character, as shown by her fraudulent
activities and her unwillingness to properly care for and protect their daughter. Applicant
did not engage in any such misconduct before or after the marriage, and his
circumstances since he remarried in 2013 are more indicative of his judgment,
trustworthiness, and reliability than the information alleged in SOR 2.b - 2.f. On balance,
Applicant has mitigated the security concerns raised by his arrest record.
I also have evaluated this record in the context of the whole-person factors listed
in AG ¶ 2(a). Applicant is a Navy veteran and has been steadily employed by the same
company for 24 years. Despite the problems in his first marriage, he raised his daughter
responsibly and resolved his financial issues. He now is in a stable, mature marriage
with his current wife. His reputation in the community and at work reflects the requisite
reliability and trustworthiness of one to whom the Government might entrust its sensitive
information. Applicant’s personal and professional circumstances, much improved over
8
the past several years, show that he is unlikely to experience future financial or personal
conduct adversity. A fair and commonsense assessment of the record as a whole
shows that Applicant has favorably resolved the Government’s doubts about his
suitability for access to classified information. 
Formal Findings
Formal findings 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
Subparagraphs 1.a - 1.g: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraphs 2.a - 2.f: For Applicant
Conclusion
In light of all of the foregoing, it is clearly consistent with the national interest for
Applicant to have access to classified information. Applicant’s request for a security
clearance is granted.
                                       
MATTHEW E. MALONE
Administrative Judge