DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ADP Case No. 15-02500
)
)
Applicant for Public Trust Position )
Appearances
For Government: Jeff A. Nagel, Department Counsel
For Applicant: Catie E. Young, Attorney At Law, Griffith, Young and Lass
October 18, 2016
______________
Decision
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LOKEY ANDERSON, Darlene D., 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
(ASDC3I) 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 Electronic Questionnaire for Investigations Processing
(e-QIP) on December 20, 2012.  (Government Exhibit 1.)  On December 4, 2015, the
Department of Defense (DoD), issued an 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.
Applicant responded to the SOR on January 11, 2016, and requested an
administrative hearing before a DOHA administrative judge.  This case was assigned to
the undersigned Administrative Judge on March 15, 2016.  A notice of hearing was
issued on March 22, 2016, and the hearing was scheduled for April 25, 2016.  At the
hearing the Government presented seven exhibits, referred to as Government Exhibits
1 through 7, which were admitted without objection.  The Applicant presented fourteen
exhibits, referred to as Applicant’s Exhibits A through N, which were admitted without
objection.  Applicant also testified on his own behalf.  The record remained open until
close of business on May 16, 2016, to allow the Applicant to submit additional
documentary evidence.  He submitted supplemental Exhibits O through W.  Department
Counsel objected to Applicant’s Exhibit W, contending that it does not apply to the
vehicle alleged in SOR allegation 1.b.  The evidence is ambiguous.  I am not convinced
that it applies to the vehicle in question, or to another vehicle not discussed.  However,
the document will be admitted, but given little weight.  Applicant’s supplemental Exhibits
O through W were admitted into evidence.  The official transcript (Tr.) was received on
May 4, 2016.  Based upon a review of the pleadings and exhibits, eligibility for a public
trust position is granted.   
 FINDINGS OF FACT
Applicant is 40 years old and married a second time.  He has two children from
his first marriage.  He holds a Bachelor’s degree.  He is employed with a defense
contractor as a Database Administrator, and is seeking to obtain access to sensitive
information in connection with this employment.
The Government opposes Applicant's request for access to sensitive information
on the basis of allegations set forth in the Statement of Reasons (SOR).  The following
findings of fact are entered as to each paragraph and guideline in the SOR:
Paragraph 1 (Guideline F - Financial Considerations)  The Government alleges
that Applicant is ineligible for a public trust position because he is financially
overextended and at risk of having to engage in illegal acts to generate funds.
      
There are six delinquent debts, totaling in excess of $22,000, set forth in the
SOR.  Applicant admitted allegation 1.a., and denied the remaining allegations under
this guideline.  (Applicant’s Answer to SOR.)  Applicant’s credit reports dated January 9,
2013; March 3, 2015; November 30, 2015; and March 7, 2016, which include
information from all three credit reporting agencies, reflect that Applicant was at one
time indebted to each of the creditors listed in the SOR.  (Government Exhibits 3, 4, 5,
and 6.)  
Applicant served in the United States Marine Corps from 1993 to 1997, when he
was honorably discharged.  During his military service he held a security clearance
without incident.  He received a number of awards and commendations during his
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military service to include the Navy Achievement Medal, the National Defense Service
Medal, the Good Conduct Medal, and various unit awards.
In 2003 or 2004, Applicant and his wife separated.  By 2008, their divorce was
finalized.  Following the divorce, Applicant was required to take on more financial
responsibility, including child support payments, moving expenses, the cost of another
household, as well as some of his wife’s expenses.  He could no longer afford the
lifestyle he once had.  His finances fell in a hole, and since then, he had been digging
himself out.
The following debts became delinquent and owing: 
2.a., a delinquent debt owed to a creditor in the amount of $912 with a balance
due of $9,411.  This was for the purchase of a motorcycle in 2008.  He made the
payments of $321 for about a year before the account went delinquent.  (Tr. p. 33.)
Applicant allowed the motorcycle to be voluntarily repossessed.  He does not believe he
owes the entire $9,000, and he is disputing the amount owed.  He has no intentions of
paying the debt.  Applicant is unwilling to set up a payment plan.  The creditor is
demanding a settlement amount of $6,166.19.  (Applicant’s Exhibit O.)  
2.b., a delinquent debt that was charged off in the amount of $2,444.  Applicant
believes that the creditor has confused the debt with a lease that his wife had for a
vehicle.  Applicant admits however, that he owed $2,444,  and he contends that he paid
the debt.  (Tr. p. 39.)  Applicant submitted a copy of the letter confirming the account is
now at a zero balance.  (Applicant’s Exhibits P and W.)  
2.c., a delinquent debt owed to a creditor in the amount of $169.  Applicant states
that he paid the debt off through the collection agency sometime between May and July
2014.  Applicant provided a copy of his bank statement that verifies the payment was
made.  (Applicant’s Exhibit Q and Tr. p. 41.)  
2.d., a delinquent debt owed to a credit union in the amount of $10,293. 
Applicant explained that after he separated from his wife she was a signer on his credit
card, and she had the limits increased without his knowledge.  Applicant states that he
disputes the debt because he never approved the credit increase.  Applicant provided
an affidavit from his ex-wife wherein she indicates that she requested the credit
increase without informing the Applicant, and the credit union did not inform him. 
(Applicant’s Exhibit R.)  Applicant states that he paid the $2,500 that he actually
borrowed, and he has no intentions of paying his wife’s fraudulent debt.  (Tr. p. 45.)  
2.e., a delinquent credit card debt owed to a creditor that was placed for
collection in the approximate amount of $3,003.  Applicant claims that he paid this debt
off in May or July 2014.  (Tr. p. 46.)  
2.f.  a delinquent debt owed to a creditor in the approximate amount of $1,330. 
Applicant states that the debt was paid.  (Applicant’s Exhibit S and Tr. p. 48.)  He
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provided a copy of the receipt from the creditor showing his payment.  There were other
delinquent debts besides those listed in the SOR that Applicant paid off between May
and July 2016.  Applicant states that since 2014, he has really pushed hard to put his
finances in order.  He has reduced his expenses and focused on paying his bills.  His
net monthly income is about $8,960.  (Tr. p. 51.)  His wife earns about $85,000
annually.  His regular monthly expenses include a mortgage payment of $2,600, and
regular monthly expenses of $2,030.  Applicant is able to comfortably meet his regular
monthly expenses and put a significant amount away in savings.  He now has
investments including stocks and bonds of $10,000.  
Applicant presented copies of his Certificates of Completion for the Air Traffic
Controller Basic course dated March 15, 2015; and the Marine Air Traffic Control and
Landing System Operator Course dated March 22, 2015.  (Applicant’s Exhibits T and
U.)  
 
 POLICIES
Positions designated as ADP I, II, or III 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.
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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.
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).)
Guideline F (Financial Considerations)
18.  The Concern.  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.
Conditions that could raise a security concern:
19.(a) inability or unwillingness to satisfy debts; and
19.(c) a history of not meeting financial obligations. 
Conditions that could mitigate security concerns:
20.(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;
20.(d) the individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts; and   
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20.(e) the individual has a reasonable basis to dispute the legitimacy of the past-
due debt which is the cause of the problem and provides documented proof to
substantiate the basis of the dispute or provides evidence of actions to resolve the
issue.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct and surrounding
circumstances;
b.  The circumstances surrounding the conduct, to include knowledgeable
participation;
c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The extent to which participation is voluntary;
f.  The presence or absence of rehabilitation and other permanent behavioral
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct, which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to sensitive information.
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
an acceptable security risk.  Eligibility for access to [sensitive] information is predicated
upon the individual meeting these personnel security guidelines.  The adjudicative
process is the careful weighing of a number of variables known as the whole-person
concept.  Available, reliable information about the person, past and present, favorable
and unfavorable should be considered in reaching a determination.” The Administrative
Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record.  The Judge cannot draw inferences or conclusions
based on evidence, which is speculative or conjectural in nature.  Finally, as
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emphasized by President Eisenhower in Executive Order 10865, “Any determination
under this order . . . shall be a determination in terms of the national interest and shall in
no sense be a determination as to the loyalty of the Applicant concerned.
CONCLUSION
In the defense industry, the security of personally identifiable information is
entrusted to civilian workers who must be counted upon to safeguard such sensitive
information twenty-four hours per day, seven days per week.  The Government is
therefore appropriately concerned when available information indicates that an
Applicant for clearance may be involved in instances of financial irresponsibility which
demonstrates poor judgment or unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s conduct and the
trustworthiness determination.  If such a case has been established, the burden then
shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation,
which is sufficient to overcome or outweigh the Government’s case.  The Applicant
bears the ultimate burden of persuasion in proving that it is clearly consistent with the
national interest to grant him or her a public trust position.
In this case the Government has met its initial burden of proving that the
Applicant has been financially irresponsible (Guideline F). This evidence indicates poor
judgment, unreliability and untrustworthiness on the part of the Applicant.  Because of
the scope and nature of the Applicant's conduct, I conclude there is a nexus or
connection with his eligibility for access to sensitive information.
The evidence shows that when Applicant divorced, he incurred expenses that he
felt he had to pay, while others he allowed to fall delinquent.  He made child support
payments and paid for necessities, while the things he did not need fell delinquent. 
Since 2014, he has been working to resolve his delinquent indebtedness and improve
his credit rating.  He has also learned the importance of paying attention to one’s credit
report to avoid fraudulent reporting.  In this case, Applicant has acted reasonably and
responsibly.  He has paid off all but one of his debts.  He still owes about $6,600 on the
motorcycle, and I trust that he will manage a way of resolving the debt in full or
convincing the creditor to accept payments to do so.  However, in this case, sufficient
mitigation has been shown and his conduct demonstrates a pattern of reliability and
good judgment.  Furthermore, there is sufficient evidence in the record to show that
Applicant can live within his means.  Although there is no evidence in the record to
show that he has formally received credit counseling, he has shown on his own that by
buckling down and reducing his expenses, he can set a budget and learn to live within
it.  It is evident that his finances are now under control.
Under the particular circumstances of this case, Applicant has met his burden of
proving that he is eligible for a public trust position.   It appears that he does have a
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concrete understanding of his financial responsibilities.  He has sufficiently addressed
his delinquent debts in the SOR.  Thus, it can be said that he has made a good-faith
effort to resolve his past-due indebtedness.  He has shown that he is or has been
reasonably, responsibly, or prudently addressing his financial situation.  Considering all
of the evidence, Applicant has introduced persuasive evidence in rebuttal, explanation
or mitigation that is sufficient to overcome the Government's case. 
Under Guideline F (Financial Considerations), Disqualifying Conditions 19.(a)
inability or unwillingness to satisfy debts; and 19.(c) a history of not meeting financial
obligations, apply.  Mitigating Conditions 20.(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; 20.(d) the individual
initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; and
20.(e) the individual has a reasonable basis to dispute the legitimacy of the past-due
debt which is the cause of the problem and provides documented proof to substantiate
the basis of the dispute or provides evidence of actions to resolve the issue are also
applicable.  From the evidence in the record, Applicant has acted responsibly under the
circumstances.  Applicant has seriously changed his spending habits and reduced his
overhead.  He has addressed his debts and is continuing to resolve them.  Accordingly,
I find for the Applicant under Guideline F (Financial Considerations).    
I have also considered the “whole-person concept” in evaluating Applicant’s
eligibility for access to classified information.  Under the particular facts of this case, the
totality of the conduct set forth above, when viewed under all of the guidelines as a
whole, support a whole-person assessment of good judgement, trustworthiness,
reliability, candor, a willingness to comply with rules and regulations, and/or other
characteristics indicating that the person may properly safeguard sensitive and
protected information.
  
I have considered all of the evidence presented.  It does mitigate the negative
effects of his financial indebtedness, and the effects that it can have on his ability to
safeguard sensitive and protected information.  On balance, it is concluded that
Applicant has overcome the Government's case opposing his request for a public trust
position.  Accordingly, the evidence supports a finding for Applicant as to the factual and
conclusionary allegations expressed in Paragraph 1 of the SOR.  
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FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1:  For the Applicant.
    Subpara.    1.a. For the Applicant.
Subpara.    1.b. For the Applicant.
Subpara.    1.c. For the Applicant.
Subpara.    1.d. For the Applicant.
Subpara.    1.e. For the Applicant.
Subpara.    1.f. For the Applicant.
DECISION
In light of all the circumstances presented by the record in this case, it is clearly
consistent with the national interest to grant or continue a public trust position for the
Applicant.
  Darlene Lokey Anderson
Administrative Judge
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