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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
In the matter of: ) 
 ) 
 --------------------------- )  ADP Case No. 15-00099 
  ) 
Applicant for Public Trust Position ) 
 
Appearances 
 
    For Government: Candace Garcia, Esquire 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
MARSHALL, Jr., Arthur E., Administrative Judge: 
 
Applicant submitted sufficient evidence to mitigate Guideline F trustworthiness 
concerns. Applicant’s eligibility to occupy a position of trust is granted. 
 
                                        Statement of the Case 
 
On August 28, 2015, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing concerns under Guideline F (Financial 
Considerations) regarding his eligibility to occupy an automated data processing (ADP) 
position designated ADP-I/II/III. 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 DOD on September 1, 2006. Applicant 
timely responded to the SOR, admitting 8 of the 10 allegations raised concerning a 
dismissed bankruptcy filing and nine delinquent debts. He also requested a hearing 
before a Defense Office of Hearings and Appeals (DOHA) Administrative Judge.  
 
On June 6, 2016, I was assigned this case. On June 30, 2016, a notice of hearing 
was issued setting a hearing for August 17, 2016. The hearing was convened as 
scheduled. The government offered four exhibits (Exs.), which were accepted into the 
record without objection as Exs. 1-4. Applicant testified and offered no documents. The 
 
 
 
 
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record was left open through September 14, 2016, to permit the Applicant to provide any 
documents he wished to submit on his behalf. The transcript (Tr.) of the proceeding was 
received on August 25, 2016. On September 12, 2016, Applicant submitted documents 
which were accepted into the record without objection as Exs. A-D. The record was then 
closed. Based on my review of the file and submissions, I find Applicant mitigated financial 
considerations trustworthiness concerns.    
 
          Findings of Fact 
 
 Applicant is a 50-year-old lead technician at a medical facility, where he has 
worked since about mid-2007. He completed one year of college before he joined the 
United States military, where he served honorably for four-and-a-half years. While in the 
service, he was trained as a cardiovascular technician at a leading university. Divorced, 
he is the father of two grown children, one of whom is attending college. (Tr. 12-13) The 
other child is taking time off from college, recuperating after an automobile accident. 
Applicant, as a single father, raised the children. He was out of work for three periods of 
time due to medical issues: from March 2006 and August 2007, approximately eight 
months between 2013 and 2014 due to severe pain and rehabilitation, and about four 
months after a related surgery in late 2015. (Tr. 23-26) At one point in recent years, 
Applicant housed his elderly parents, who were reliant on Social Security and disability 
payments.1 (Tr. 28) 
 
Applicant acknowledges that he has had financial difficulties. He has disputed 
some of the entries in his credit report. (Tr. 14) He initially filed for Chapter 7 bankruptcy 
in October 2005, but his petition was dismissed in January 2006 after he declined to pay 
filing fees, which he found to be too costly. (Tr. 35-36, 45; SOR allegation 1a) He has had 
numerous medical issues related to his knees, hip, and back since at least 2005. 
Applicant, who suffers from intermittent health and medical issues, most recently 
voluntarily came off of four months of short term disability assistance in November 2015 
in order to personally generate his own income through work.2 (Tr. 15) In so doing, he 
was mindful to follow the Social Security Administration (SSA) Disability rules on 
transitioning back to work while staying within the prescribed income levels for receipt of 
such benefits.3 (Tr. 16, 26) Applicant devoted all such income to expenses related to 
                                                          
1 Applicant housed and helped care for his parents from 2001 until 2013, before they were moved into a 
nursing facility and became recipients of Medicaid. (Tr. 30-31) They no longer need his monetary support. 
 
2 Applicant noted that in November 2015 he “took the leap of faith to try to get off [disability compensation] 
and try to do something on my own . . . just because I’m a firm believer that you don’t take handouts unless 
you absolutely need them,” while noting that he initially was a medical “mess at that time” and caring for 
both his ill parents while raising his own children as a single parent. (Tr. 15; 24) Applicant was in constant 
pain and in rehabilitation for his medical issues from about October 2013 through at least January 2014, 
causing him to be out of work and not receiving a regular salary through at least April 2014, followed by the 
four months without work in 2015 during which he received short term disability payments noted above. (Tr. 
22-24) 
 
3 The short term disability recoupment effort noted in the SOR is related to Applicant’s period of 
unemployment occurring between March 2006 and August 2007. (Tr. 25) 
 
 
 
 
 
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maintaining his family, as well as his medical problems and related surgeries.4 (Tr. 16) 
As the payments briefly overlapped with his transition to full-time employment, Applicant 
continued to apply the proceeds to his medical and family debts.5 He questioned whether 
they were still appropriate. He was later informed by the SSA that his income had 
exceeded the limit for an individual receiving disability payments. (Tr. 16-17) Partial 
recoupment was eventually instituted.  
 
Applicant is presently in need of two hip surgeries as follow-up to earlier hip and 
knee surgeries, from which he has acquired over $150,000 in medical debt. (Tr. 16-17) 
He is presently compiling documentation regarding these medical issues for the United 
States Government with regard to his present financial situation and his past disability 
payment eligibility. Meanwhile, he still aspires to a more lucrative position.  
 
At issue are delinquent medical accounts with balances of approximately $328, 
$45, $63, and $18 (SOR allegations 1.b-1.e). Applicant stated these have been satisfied, 
and he provided evidence of payment for all of these balances except the debt for $63, 
which he cannot find.6 (Ex. 3) In addition, there is a claim by the Social Security 
Administration for about $28,260 (SOR allegation 1.h) due to the alleged overpayments 
described above. An account balance with a retail merchandiser for $420 has been 
satisfied. (Tr.18-19; Ex. 1) A $789 balance with a telecommunications provider (SOR 
allegation 1.g), created when his parents used his Social Security number to open an 
account, has since been resolved and removed from his credit report. (Tr. 17, 29; Ex. 2) 
An account balance of $632 remains outstanding (SOR allegation 1.i), but his balance 
with a local county regarding a speeding ticket has been resolved. (Ex. 3) 
 
At present, the main debt remaining at issue in the SOR is the Social Security 
obligation noted at SOR allegation 1.h for $28,260. Applicant presented credible 
testimony he is working with the SSA to resolve his short term disability-related debt in 
light of the circumstances, his continued telephonic communication with the agency, and 
his medical situation. He is presently appealing the amount related to the approximately 
six-month period at issue. He now has his regularly recurring bills go through his bank for 
automatic payment. (Tr. 32) Applicant maintains a budget. (Tr. 44) In addition, his monthly 
financial needs have lessened now that his parents and his children are living 
independently. (Tr. 32) He has not opened any new lines of credit. (Tr. 32-33) Applicant 
initially planned to seek credit counseling, but, after reviewing the offerings of one 
organization, he concluded that it was more economical for him to make direct payments 
to his creditors himself. (Tr. 33-34)  
                                                          
4 Applicant, who is eligible to received medical care through the Department of Veterans Affairs (VA) has 
incurred over $150,000 in related medical obligations.  
 
5 Applicant is contesting the amount sought for recoupment by SSA for about six months of temporary 
disability payments. (SOR allegation 1.h) 
 
6 Applicant also provided evidence he satisfied a $90.96 medical bill, but that debt does not appear to be 
set forth in the SOR. (Tr. 18-19; See Ex. 4) It may incorporate the medical debt noted at SOR allegation 
1.d. He believes one or more of the cited medical debts may have been for care administered to his son. 
(Tr. 42-43) He has also satisfied a delinquent retail balance of $664 not noted in the SOR. (Tr. 17-18)  
 
 
 
 
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Applicant is now current on his other accounts, including on-going medical bills. 
(Tr. 36-37, 41) After some contributions toward his daughter’s college education, he has 
a monthly net remainder of about $300-400 after expenses. (Tr. 43) He is capable of 
adopting a repayment plan for any balance determined to be owed to the SSA. 
 
Otherwise, Applicant is devoting his energies to economic self-sufficiency. He has 
received solidly positive work evaluations. He is devoted to helping others through his 
work in the medical field. He has been a member of the same house of faith for 17 years, 
where he is an official and on a board. He is supportive of his children and enjoys helping 
others. He has been as proactive as possible with regard to his medical issues.  
 
Policies 
 
 When evaluating an applicant’s suitability for a position of trust, the administrative 
judge must consider the adjudicative guidelines. The adjudicative guidelines list 
potentially disqualifying conditions and mitigating conditions, which are used in evaluating 
an applicant’s eligibility for access to protected 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 the adjudicative process. The administrative judge’s overarching 
adjudicative goal is a fair, impartial, and commonsense decision. Under 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 in making a decision.  
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is 
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 
mitigate facts admitted by applicant or proven by Department Counsel and has the 
ultimate burden of persuasion to obtain a favorable decision.”  
 
A person who seeks a public trust position enters into a fiduciary relationship with 
the Government predicated upon trust and confidence that transcends normal duty hours. 
Decisions include, by necessity, consideration of the possible risk the applicant may 
deliberately or inadvertently fail to safeguard information. Section 7 of Executive Order 
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.” 
  
Analysis 
 
Guideline F, Financial Considerations 
 
Under Guideline F, AG ¶ 18 sets forth the applicable trustworthiness concern: 
failure or inability to live within one’s means, satisfy debts, and meet financial obligations 
 
 
 
 
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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.  
 
The Government introduced evidence showing Applicant filed, but voluntarily 
withdrew from, a petition for bankruptcy which he later voluntarily abandoned and which 
was ultimately dismissed. While this does not constitute disqualification by itself, it reflects 
on his past financial issues, which also include the nearly $30,000 in delinquent debt now 
at issue. Such facts raise financial considerations disqualifying conditions:  
 
AG ¶ 19(a) inability or unwillingness to satisfy debts, and  
 
AG ¶ 19(c) a history of not meeting financial obligations.   
 
Five conditions could mitigate these financial concerns:  
 
 AG ¶ 20(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; 
 
 AG ¶ 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; 
 
 AG ¶ 20(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; 
 
 AG ¶ 20(d) the individual initiated a good-faith effort to repay overdue 
creditors or otherwise resolve debts; and 
 
 AG ¶ 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. 
  
The primary debt at issue is related to the SSA disability repayments which 
Applicant acknowledges he acquired, but he questions the amount at issue. He did, 
however, provide persuasive testimony and evidence regarding his efforts to address the 
other delinquent debts at issue. To date, however, the SSA debt remains outstanding and 
unresolved, although Applicant’s successful efforts to improve his understanding of his 
financial situation and the situation he faced when he received the overpayments are to 
his credit. Moreover, the genesis of the other delinquent debts at issue is clearly related 
to medical issues beyond Applicant’s control, despite his efforts to mitigate their 
 
 
 
 
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acquisition by returning to work prematurely and continuing to seek higher paying 
positions. While he opted not to go through with financial counseling, he has made 
successful strides in addressing the non-SSA debts at issue, devised a budget, learned 
to live within his means, and now retains a positive financial monthly net remainder. Such 
facts raise mitigating conditions AG ¶ 20(a)-(d). 
 
With regard to his current dispute regarding the SSA balance, Applicant admits he 
suspected his final SSA payments might be in error, but he deposited them in his bank 
account anyway. There is no documented evidence, however, that it was his intent to 
defraud the government or avoid repayment, nor has his personal conduct been alleged 
as a basis disqualifying him from trustworthiness position eligibility. Moreover, it is clear 
Applicant has a basis for, and a right to proceed with, seeking validation of the amount 
assessed. Because he corresponded with SSA mostly by telephone, however, he has no 
documentation substantiating any claims that the amount is inaccurate. Therefore, his 
presentation and materials do not give rise to AG ¶ 20(e). Taken together, however, the 
other mitigating conditions raised highlight his efforts toward resolving his debt and his 
efforts to take responsibility for all of his delinquent debt.  
  
Whole-Person Concept 
 
 Under the whole-person concept, the administrative judge must evaluate an 
applicant’s eligibility for a position of trust by considering the totality of the applicant’s 
conduct and all relevant circumstances. The administrative judge should consider the 
adjudicative process factors listed at AG ¶ 2(a). Under AG ¶ 2(c), the final determination 
of whether to grant eligibility for a position of trust must be an overall commonsense 
judgment based on 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 incorporate my comments under the 
guideline at issue in my whole-person analysis. Some of the factors in AG ¶ 2(a) were 
addressed under that guideline, but some warrant additional comment.  
 
Applicant is a 50-year-old lead technician who has worked in the same medical 
facility since 2007. He served honorably in the United States military, attended some 
college courses, and is a trained cardiovascular technician. He is divorced and the father 
of two adult children. Applicant took it upon himself to care for his aging parents before 
they were eligible for subsidized elder care at a nursing facility, and he helped put his 
children through college when he was financially able to do so. Since the mid-2000s, he 
has suffered from on-going, recurring, and related knee, back, and hip issues that have 
required and still require surgical care. As a result, he experienced three notable periods 
without employment. During one such period, he accepted short-term SSA disability 
insurance payments. It was during that period he received the overpayments that 
represent the main delinquent debt remaining at issue.   
 
Applicant has substantially addressed or repaid all the financial debts noted in the 
SOR except for the SSA-related debt. In addition, he has comported his financial behavior 
 
 
 
 
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in such a way as to manage his budget and live within its limits going forward. He is 
presently trying to negotiate a validation of the SSA-related debt and devise a repayment 
plan. He currently has the resources to make modest monthly payments toward such a 
plan. Given his financial progress on the lesser debts, his improved financial outlook and 
management, and his willingness to address whatever is ultimately found to be owed to 
the SSA, I find that Applicant has presented sufficient evidence and information to 
mitigate financial considerations concerns.    
 
Formal Findings 
 
 Formal findings for or against Applicant 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.j:   For Applicant 
 
          Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is clearly 
consistent with the national interest to permit Applicant to maintain a public trust position. 
Eligibility for a public trust position is granted. 
 
 
                                                   
_____________________________ 
Arthur E. Marshall, Jr. 
Administrative Judge