1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 15-07857 ) ) Applicant for Security Clearance ) Appearances For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Pro se November 28, 2016 ______________ Decision ______________ GOLDSTEIN, Jennifer I., Administrative Judge: Applicant is alleged to be delinquent on eight debts, in a total exceeding $21,600. He resolved three of his debts, totaling $12,388. Applicant failed to introduce documentation to show his remaining five delinquencies have been resolved. Eligibility for access to classified information is denied. Statement of the Case On January 26, 2015, Applicant submitted a signed Electronic Questionnaires for Investigations Processing (e-QIP.) On May 16, 2016, the Department of Defense issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline F, Financial Considerations. The action was taken under Executive Order (EO) 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 September 1, 2006. 2 Applicant answered the SOR on June 21, 2016 (Answer), and requested a hearing before an administrative judge. The case was assigned to me on August 2, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on August 16, 2016, scheduling the hearing for September 14, 2016. The hearing was convened as scheduled. The Government offered Exhibits (GE) 1 through 5, which were admitted without objection. (Tr. 12-16.) Applicant testified and offered three exhibits (AE), marked AE A through AE C, which were also admitted without objection. DOHA received the transcript of the hearing (Tr.) on September 22, 2016. The record was left open for Applicant to submit additional exhibits. Applicant presented two additional exhibits, marked AE D and AE E. Department Counsel had no objections to AE D and AE E, and they were admitted. The record then closed. Findings of Fact Applicant is 48 years old. He has been employed by his current employer, a defense contractor, since June 2013. Applicant divorced his ex-wife in 2010. He has two minor children with his ex-wife. He remarried in 2012. (Tr. 19-20, 22-23.) As listed in the SOR, Applicant was alleged to be delinquent on eight debts in a total exceeding $21,600. Applicant admitted all of the debts alleged in SOR. His debts are identified in the credit reports entered into evidence. (Answer; GE 3; GE 4; GE 5.) After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant attributes his financial delinquencies to a series of events beyond his control. He and his wife separated in 2008. A few months after their separation, Applicant was laid off from his job. He was unemployed from March 2009 to September 2009. He received unemployment benefits during that period, but that only covered his rent. When he finally found employment in October 2009, it was at a reduced salary. (GE 1; Tr. 19-21.) Applicant is indebted to a collection agent on a judgment filed against him in August 2011, in the amount of $4,455, as stated in SOR subparagraph 1.a. Applicant testified he did not recall who the original creditor was, but that he has taken no actions to resolve this debt. It remains delinquent. (GE 3; GE 5; Tr. 24-26.) Applicant was indebted to a law office on a judgment filed against him in September 2013, in the amount of $3,506, as stated in SOR subparagraph 1.b. Applicant resolved this debt in full, as evidenced by documentation from this creditor. (GE 3; GE 4; GE 5; AE A; AE D; Tr. 26-29.) Applicant was indebted to a bank for a delinquent credit card in the amount of $6,909, as stated in SOR subparagraph 1.c. Applicant resolved this debt in full, as evidenced by documentation from this creditor. He testified he by borrowed money from his parents to resolve this debt, but that he has repaid them. (GE 3; AE B; Tr. 29.) 3 Applicant is indebted to a collection agent on a delinquent medical account in the approximate amount of $232, as stated in SOR subparagraph 1.d. He testified this debt was for the deductible for his December 2013 knee operation. He claimed he paid this debt, but had no documentation to support his claim. This debt is not resolved. (GE 3; Tr. 29-31.) Applicant is indebted to a collection agent on a delinquent credit card debt in the amount of $1,973, as stated in SOR subparagraph 1.e. Applicant claimed to have a payment agreement with this creditor. He provided a letter dated September 20, 2016, from a collection agent for the original account holder, which stated the account had been satisfied in full. It is resolved. (GE 3; AE E; Tr. 31-32.) Applicant is indebted to a collection agent on a delinquent credit card debt in the amount of $4,238, as stated in SOR subparagraph 1.f. He has not yet addressed this debt. It is unresolved. (GE 3; GE 4; GE 5; Tr. 33-34.) Applicant is indebted to a collection agent on a delinquent medical account in the approximate amount of $125, as stated in SOR subparagraph 1.g. Applicant claimed to have paid this debt, but he failed to offer documentation to support his claim. It is unresolved. (GE 3; Tr. 34-35.) Applicant is indebted debt for a water cooler he purchased five to six years ago in the amount of $201, as stated in SOR subparagraph 1.h. Applicant claimed to have paid this debt, but he failed to offer documentation to support his claim. It is unresolved. (GE 3; Tr. 35-36.) Applicant also admitted to being in debt to both the Federal and state governments for 2014 income taxes. He has payment arrangements with both tax authorities and is repaying his tax delinquencies, which total approximately $4,500. (Tr. 40-42.) Applicant provided no household budget showing monthly household expenses. He did not provide a copy of his earnings statement, although he claimed to earn approximately $87,000 per year. (Tr. 37.) I am unable to assess his current financial status and his ability or willingness to repay his past-due debts, without more information on his debt to income ratio. The record lacks any evidence of credit or financial counseling. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information. 4 These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching 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 classified 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. 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 to obtain a favorable clearance decision. A person who seeks access to classified 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 classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of EO 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). 5 Analysis Guideline F, Financial Considerations The security concern for Financial Considerations is set out in 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. AG ¶ 19 describes two conditions that could raise security concerns and may be disqualifying in this case: (a) inability or unwillingness to satisfy debts; and (c) a history of not meeting financial obligations. Applicant has a history of financial indebtedness documented by the credit reports in evidence, which substantiate all of the allegations. He resolved three debts. He has been unable or unwilling to address the five remaining delinquencies. The evidence raises security concerns under both of these disqualifying conditions, thereby shifting the burden to Applicant to rebut, extenuate, or mitigate those concerns. The guideline includes five conditions in AG ¶ 20 that could mitigate security concerns arising from Applicant’s financial difficulties: (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; (d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; and 6 (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. Applicant’s financial problems are ongoing. Five of Applicants eight delinquent accounts remain unresolved. He has not demonstrated that future financial problems are unlikely. Mitigation under AG ¶ 20(a) has not been established. Applicant attributed his delinquencies to his divorce, unemployment, and underemployment. These are circumstances beyond his control. However, he failed to establish that he has acted reasonably or responsibly since gaining full employment with a defense contractor in 2013. He has not demonstrated that he addressed his debts in a timely manner. Mitigation under AG ¶ 20(b) has not been established. Applicant provided no evidence of financial counseling. Further, there are no clear indications that his financial problems are being resolved or are under control. Mitigation under AG ¶¶ 20(c) or (d) has not been established. AG ¶ 20(e) requires Applicant to provide documented proof to substantiate the basis of any dispute or provide evidence of actions to resolve the issue. Applicant has not provided evidence of any formal dispute or a basis for one. Mitigation under AG ¶ 20(e) has not been established. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant 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 for a security clearance 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. I have incorporated my comments under Guideline F in my whole-person analysis. Some of the factors in AG ¶ 2(a) were 7 addressed under that guideline, but some warrant additional comment. Five of Applicant’s debts remain unresolved. While he was given the opportunity to document the current status of his debts, he failed to produce evidence of any actions on his remaining delinquent accounts. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the Financial Considerations security concerns. 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 Subparagraph 1.a: Against Applicant Subparagraphs 1.b through 1.c: For Applicant Subparagraph 1.d: Against Applicant Subparagraphs 1.e: For Applicant Subparagraph 1.f through 1.h: 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 security clearance. Eligibility for access to classified information is denied. ________________________ Jennifer I. Goldstein Administrative Judge