1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02128 ) Applicant for Security Clearance ) Appearances For Government: Andrea M. Corrales, Esq., Department Counsel For Applicant: Pro se __________ Decision __________ HARVEY, Mark, Administrative Judge: Applicant made a series of financial decisions that showed poor judgment involving six acquaintances she met over the Internet. She uttered three checks totaling $39,000 for one acquaintance that were fraudulent. Criminal conduct security concerns are mitigated because she was unsure about whether the checks were fraudulent; however, personal conduct and financial considerations security concerns are not mitigated. Eligibility for access to classified information is denied. Statement of the Case On October 11, 2012, and January 29, 2015, Applicant submitted her Questionnaires for National Security Positions (SF 86) or security clearance applications (SCA). (Government Exhibits (GE) 1 and 2) On October 4, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), which became effective on September 1, 2006. 2 The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for her, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. (Hearing Exhibit (HE) 2) The SOR alleged security concerns under Guidelines F (financial considerations), E (personal conduct), and J (criminal conduct). (HE 2) On November 11, 2016, Applicant responded to the SOR. On December 5, 2016, Department Counsel was ready to proceed. On January 10, 2017, the case was assigned to me. On February 27, 2017, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for March 13, 2017. (HE 1) Applicant’s hearing was conducted as scheduled. Applicant waived her right to 15 days of notice of the date, time, and location of her hearing. (Transcript (Tr.) 13) During the hearing, Department Counsel offered seven exhibits; Applicant did not offer any exhibits in addition to her SOR response; and all proffered exhibits were admitted without objection. (Tr. 18-20; GE 1-7) On March 21, 2017, DOHA received a copy of the transcript of the hearing. Findings of Fact1 Applicant’s SOR response admitted SOR ¶¶ 1.d, 2.a, and 2.d. She also admitted with explanations some of the underlying factual predicate for the SOR allegations; she provided some supporting exhibits; and she also provided extenuating and mitigating information. (HE 3) Her admissions are accepted as findings of fact. Additional factual findings follow. Applicant is a 53-year-old senior financial specialist employed by a defense contractor for almost 17 years in various financial positions. (Tr. 5, 21, 24; GE 1) She occupies a sensitive security position involving billing, invoices, and contracts; however, she rarely has access to classified information. (Tr. 21-25) In 1982, she graduated from high school, and in 1987, she received an associate’s degree in arts and sciences. (Tr. 5-6) She has not served in the U.S. armed forces. (Tr. 6-7) She has been married four times: 1983 to 1989; 1991 to 1994; 1995 to 2001; and 2002 to 2013. She has a 23-year- old son who is serving in the Navy, and her 26-year-old daughter passed away in 2012. (Tr. 7-8) 1 Some details have been excluded in order to protect Applicant’s right to privacy. Specific information is available in the cited exhibits. 3 Financial Considerations2 From 2007 to 2012, Applicant worked with a debt consolidation company to resolve her delinquent debts. (Tr. 36) The debt consolidation plan was terminated because it was not making consistent progress on her debts. (Tr. 36-37) Around 2010, Applicant’s spouse lost a lot of money, and he refused to discuss what happened to the money with Applicant. (Tr. 33) After the death of her daughter and her divorce, Applicant was unable to afford her mortgage payment on one income, and she had a short sale. (Tr. 26, 34) She had medical problems about twice a year, and typically one involved inpatient treatment. (Tr. 27) She suffers from a degenerative bone disease, which has required surgery, and from depression. (Tr. 28, 108-109) She has medical insurance. (Tr. 27-28) She was an inpatient for depression each year for the last four years. (Tr. 28) In the summer of 2016, she spent one month in the hospital for depression. (Tr. 109) She also receives outpatient treatments for depression. (Tr. 109) She currently sees her psychiatrist once a month. (Tr. 110) She also had some bills relating to her daughter’s illness and death. (Tr. 29) In 2014, she borrowed $17,000 from her 401(k) account. (Tr. 29) She used the funds she borrowed to settle some of her SOR debts. (Tr. 43) She is making payments to repay the loan from her 401(k) account. (Tr. 29) SOR ¶ 1.a alleges a bank debt placed for collection for $10,184. In 2010, the debt became delinquent. (Tr. 33) In 2014, Applicant contacted the creditor to discuss payment plans, and the creditor wanted $500 monthly, which she could not afford. (Tr. 33) Applicant said she received an Internal Revenue Service (IRS) form 1099C from the creditor bank. The identifiable event on the IRS form 1099C was in November 2015. (SOR Response, Ex. 1.a) The IRS form 1099C had $9,669 handwritten in block 2 as the amount discharged, and block 4, debt description, indicates “this debt was discussed in 2013, 90% of that card (sic) had to pay medical expenses for my very sick daughter before she passed. I can’t settle.” (SOR Response, Ex. 1.a) Applicant said she included 2 Applicant’s SOR describes her providing funds and assistance to three men. The SOR does not allege six issues that surfaced during her hearing: (1) her title loan, repossession of her vehicle, and the debt owed to her family; (2) she owes money to the two banks that accepted fraudulent checks from her, and she has not made payments for several months to the victim-banks; (3) her judgment was affected by depression; (4) she provided about $50,000 to P rather than $16,610 as alleged in SOR ¶ 2.d; (5) She engaged in numerous financial transactions with men she met over the Internet without establishing their identities; and (6) Applicant provided funds to six men she met over the Internet. In ISCR Case No. 03- 20327 at 4 (App. Bd. Oct. 26, 2006), the Appeal Board listed five circumstances in which conduct not alleged in an SOR may be considered stating: (a) to assess an applicant’s credibility; (b) to evaluate an applicant’s evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) to provide evidence for whole person analysis under Directive Section 6.3. Id. (citing ISCR Case No. 02-07218 at 3 (App. Bd. Mar. 15, 2004); ISCR Case No. 00-0633 at 3 (App. Bd. Oct. 24, 2003)). See also ISCR Case No. 12-09719 at 3 (App. Bd. April 6, 2016) (citing ISCR Case No. 14-00151 at 3, n. 1 (App. Bd. Sept. 12, 2014); ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006)). These non-SOR allegations will not be considered except for the five purposes listed above. 4 the amount discharged on her 2015 tax return as income; however, she did not provide a copy of her tax return. (Tr. 35) SOR ¶ 1.b alleges a bank credit card debt placed for collection for $6,856. Around 2010, the debt became delinquent. (Tr. 35) Applicant said she paid $2,388 to settle the debt. (Tr. 37) Applicant said she received an IRS form 1099C from the bank. The identifiable event in block 1 on the IRS form 1099C was blank. (SOR Response, Ex. 1.b) The IRS form 1099C had the creditor’s name handwritten in, and the creditor’s address was blank as well as other information. (SOR response, Ex. 1.b) The amount $4,468 was typed into block 2 as the amount discharged. (SOR Response, Ex. 1.b)3 She said she included the amount discharged on her 2013 tax return as income; however, she did not provide a copy of her tax return. (Tr. 37) SOR ¶ 1.c alleges a bank debt placed for collection for $815. The original amount due was $4,065, and Applicant said she settled this debt in November 2014 for $3,064. (Tr. 37-38; SOR response, Ex. 1.c) SOR ¶ 1.d alleges a telecommunications debt placed for collection for $506. Applicant admitted that she still owed this debt. (Tr. 39-40; SOR response) She did not pay the debt because she forgot about it; however, she said she planned to pay this debt. (Tr. 41-42) SOR ¶ 1.e alleges a furniture store account placed for collection for $947. The creditor wrote that the debt was paid in full in December 2014. (Tr. 42; SOR response, Ex. 1.e) SOR ¶ 1.f alleges a medical account placed for collection for $417. In December 2014, Applicant paid $334 and resolved the debt. (Tr. 43-45; SOR response, Ex. 1.f) SOR ¶¶ 1.g and 2.c (personal conduct) allege Applicant presented a check for $30,300 that was returned for insufficient funds and placed for collection. In July 2015, Applicant received a check for $30,300 from an address in Africa, and P, an acquaintance she met over the Internet, or his agent told her the check was from businessman who owed money to P. (Tr. 79-80, 110; GE 5 at 11) The check was payable to Applicant, and she deposited the check into her bank account. (Tr. 79-80, 111; GE 5 at 11) After she deposited the check, she was supposed to immediately send money to P. (Tr. 111-112) The bank put the proceeds of the check on hold, but authorized $5,000 to $5,300 for release to Applicant because she was such a good customer. (Tr. 79, 112; GE 5 at 11) She sent two money grams totaling about $5,000 to P’s agents in Africa. (Tr. 80) In August 2014, the bank notified Applicant that the check was fraudulent and took $1,000 from her account as well as the deposit from her pay. 3 Applicant said she received the two IRS form 1099Cs in the mail, and she denied that she typed them up. (Tr. 106) She admitted she wrote the $9,669 on one IRS form 1099C and the name of the bank on the other IRS form 1099C. (Tr. 106-108; SOR response, Ex. 1.a and 1.b) She said she did not know about the debt description typed into the IRS form 1099C. (Tr. 107; SOR response Ex. 1.a) 5 (Tr. 80-81) She estimated she owed the bank $2,400. (Tr. 81) Her most recent payment to the bank was “a few months ago.” (Tr. 82) In 2015, Applicant borrowed $6,000 on a title loan on her vehicle. (Tr. 45) She did not make her payments, and her vehicle was repossessed in 2016. (Tr. 45) Her relatives paid the loan on her behalf, and she continues to have a balance of $2,500 due to her relatives on the loan. (Tr. 46, 59) She also has a delinquent telecommunications debt for about $700. (Tr. 47) Applicant maintains a budget, and she received financial counseling. (Tr. 52-56) Personal Conduct and Criminal Conduct SOR ¶ 2.a alleges in 2014, Applicant gave away over $10,000 to an acquaintance doing business overseas despite having delinquent debts exceeding $27,000. In January 2013, Applicant met S over the Internet. (Tr. 87) She believed S was an Army soldier serving overseas. (Tr. 87) S claimed that he was the victim of an explosion of an improvised explosive device (IED), and he needed help with his medical bills. (Tr. 88) She made six or eight wire transfers to S or his agents totaling about $10,000. (Tr. 88-89) She considered the funds paid to S to be loans; however, she has not heard from S since 2014. (Tr. 89) SOR ¶ 2.b alleges Applicant cashed checks for $4,500 and $3,800 that she suspected were fraudulent. In July 2015, Applicant received the two checks from B on behalf of P. (Tr. 72; GE 5 at 9-10) The two checks were dated in January 2014, and made payable to Applicant. (SOR response; GE 5 at 10) She was a bank teller for 10 years, and she believed the checks looked suspicious. (Tr. 73) The face of the checks indicated “void after 90 days,” and she was depositing the checks more than 90 days after they were dated. (GE 5 at 10) When she went to deposit the checks, she told the chief teller she was suspicious about them, and the teller checked the $4,500 check and then advised Applicant that the check was good. (Tr. 74; GE 5 at 10) Applicant paid $4,500 to P’s agents in Africa using money grams. (Tr. 75; GE 5 at 10) P told Applicant that he was going to use the $4,500 to purchase gold for her in Africa. (GE 5 at 10) When the bank discovered the $4,500 check was fraudulent, the bank took all of the funds from her bank account. (Tr. 76-77) She currently owes the bank $2,400. (Tr. 77) The bank returned the $3,800 check, and it was not cashed. (SOR response) Her repayments to address the balance owed on the debt have not been consistent. (Tr. 77) P promised to repay her when he returned to the United States; however, he did not repay her. (Tr. 77) SOR ¶ 2.d alleges between September 2013 and March 2016, Applicant gave $16,610 to an acquaintance in Africa despite having delinquent debts. In February 2013, Applicant met P over the Internet. (Tr. 67) She had one in-person meeting with P in a coffee shop in June 2013. (Tr. 68) P said he owned a jewelry store near her residence, and P wanted to open a jewelry store in Africa. (Tr. 68) She formed a romantic relationship with P. (Tr. 69) When P was in Africa, he ran out of money, and she sent about $2,000 over several months to P’s agent. (Tr. 69) Her relationship with P was from February 2013 to July 2016, and Applicant sent money to P or conducted 6 transactions on behalf of P about 70 times. (GE 5 at 12) One transaction was for between $100,000 and $500,000, and her most recent financial transaction was in March 2016. (GE 5 at 12) Applicant estimated she gave P about $50,000 through his agents in Africa. (Tr. 83) In 2013, Applicant obtained and then shipped five laptop computers to P’s agents in Africa because he said the laptops were for an orphanage. (Tr. 83-85; GE 5 at 12-13) She purchased the laptops from three different stores. (GE 5 at 12-13) She also sent a cell phone to P. (Tr. 85-86; GE 5 at 12-13) In April 2016, Applicant completed a 27-page Office of Personnel Management (OPM) interview about her relationships with P and others she met over the Internet. (GE 5) This interview highlighted security concerns about foreign financial transactions and transfers of electronics with P and others. (GE 5) Applicant’s most recent conversation with P was in July 2016. (Tr. 86) SOR ¶ 2.e alleges in January 2014, Applicant’s bank account was closed due to “returned incoming wire” attempts. Applicant had a sketchy recall of events surrounding the receipt of incoming wires and the closure of her account. (Tr. 93-94) It was reasonable to close the account. The allegation in SOR 2.e does not raise a security concern. SOR ¶ 3.a alleges the information set forth in SOR ¶ 1.g and 2.b. In 2013, Applicant met a man (H) over the Internet. (Tr. 56) H claimed to be a businessman living in her state. (Tr. 56) She communicated with him using the telephone, text messages, and e-mails. (Tr. 56-57) She did not have any in-person direct contact with H. (Tr. 56-57) She believed the relationship had potential to become romantic. (Tr. 57) In March 2013, H claimed that he was attacked in Europe, and he needed funds for medical care and to return to the United States. (Tr. 57) She took out the title loan on her vehicle to send money to H. (Tr. 59) In 2013, she sent H three wire transfers totaling $4,500. (Tr. 58; GE 5 at 2) H did not repay her loan to Applicant. From June 2013 to June 2014, Applicant had hundreds of contacts with B. Sometimes she had multiple contacts with him during a single day. (GE 5 at 6) She did not have any in-person contact with B. (GE 5 at 1) She sent funds to B or his agents on about 10 or 15 occasions. (GE 5 at 6) In June and July 2013, Applicant received a total of $31,075 into her bank account by wire transfer from B or his agents. (Tr. 64-65; GE 5 at 2) She sent $10,900 to B’s agents to enable him to purchase lumber in Europe for his business. (GE 5 at 2-3) B said he was beaten or mugged, and the money for the lumber purchase was stolen. (Tr. 60; GE 5 at 3) Later, B borrowed from loan sharks, and he needed help paying the loan sharks and for supplies. (Tr. 66; GE 5 at 3-4) In February 2014, Applicant sent $21,500 to B and labeled the payment “Purchase of collectibles and china” based on instructions from B. (GE 5 at 5) Applicant sent about $10,000 to $12,000 to B or B’s agent for which she was not repaid; she closed her account; and she did not contact B or B’s agents after June 2014. (Tr. 62-63; GE 5 at 5-2, 6) Applicant was suspicious about some of B’s requests for funds; however, she honestly felt that she loved B. (Tr. 66; GE 5 at 5-6) 7 In August 2015, Applicant met W on the Internet. (Tr. 94) W left the United States to go to Africa to purchase a helicopter. (Tr. 94) W was unable to afford to return to the United States; W needed to purchase a coat; W was the victim of a hit and run; and Applicant sent about $600 to W’s agents in Africa. (Tr. 96) Applicant met PH on the Internet, and she has never met him in person. (Tr. 99- 101) In October 2015, he requested that Applicant send money to him in Africa because he needed money for food and for his son, who was injured in a car accident. (Tr. 99- 100) She sent over $600 to PH. (Tr. 100) She most recently sent money to PH in December 2016. (Tr. 101) Applicant said she sent money to these men because she was not thinking clearly, and she was depressed. (Tr. 101, 103) She was taking a prescription drug and it affected her mental processing. (Tr. 102) In late 2013, she went to the police; however, the police advised her that it was a scam and to forget trying to get her money back. (Tr. 102) She continued to send money because she is a caring person who does not like to see anyone suffer if she can help them. (Tr. 102) Even after she received the SOR, which detailed her delinquent debts, she elected to continue to send money to acquaintances in Africa because she has “a big heart,” and she believed they were in need. (Tr. 71) She stopped taking the prescription drug-treatment for her depression, and she can think more clearly now. (Tr. 103) To verify the information from the acquaintances, she asked for a picture of their passport and driver’s license; however, the men seeking her money said their camera on their phone did not work. (Tr. 111) Applicant sent funds to Africa to assist six men. She believed four of the men scammed her; however, the other two men probably did not scam her. (Tr. 105) She may go to therapy to try to learn why she gave them the money, even though she knew it was because she was a caring person and because of her feelings of “massive loneliness.” (Tr. 105-106) Character Evidence A colleague who worked with Applicant for six years and her manager since 2011 described her as diligent, dedicated, helpful, detail oriented, reliable, loyal, patriotic, and trustworthy. (SOR response) She provided 15 certificates, awards, and complimentary summaries of her accomplishments and contributions to her employer. (SOR response) These statements and other work-related documentation support continuation of her security clearance. Policies The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. 8 at 527. The President has authorized the Secretary of Defense or his designee to grant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified. Eligibility for a security clearance is predicated upon meeting the criteria contained in the adjudicative guidelines (AG). These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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. Adverse clearance decisions are made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the [a]pplicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, nothing in this decision should be construed to suggest that I have based this decision on any express or implied determination as to applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue [his or her] security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). 9 Analysis Financial Considerations AG ¶ 18 articulates the security concern relating to financial problems: 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. The Appeal Board explained the scope and rationale for the financial considerations security concern in ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012) (citation omitted) as follows: This concern is broader than the possibility that an applicant might knowingly compromise classified information in order to raise money in satisfaction of his or her debts. Rather, it requires a Judge to examine the totality of an applicant’s financial history and circumstances. The Judge must consider pertinent evidence regarding the applicant’s self-control, judgment, and other qualities essential to protecting the national secrets as well as the vulnerabilities inherent in the circumstances. The Directive presumes a nexus between proven conduct under any of the Guidelines and an applicant’s security eligibility. AG ¶ 19 provides two disqualifying conditions that raise a trustworthiness concern and may be disqualifying in this case: “(a) inability or unwillingness to satisfy debts;” and “(c) a history of not meeting financial obligations.” In ISCR Case No. 08- 12184 at 7 (App. Bd. Jan. 7, 2010), the Appeal Board explained: It is well-settled that adverse information from a credit report can normally meet the substantial evidence standard and the government’s obligations under [Directive] ¶ E3.1.14 for pertinent allegations. At that point, the burden shifts to applicant to establish either that [he or] she is not responsible for the debt or that matters in mitigation apply. (internal citation omitted). Applicant’s history of delinquent debt is documented in her credit reports, SOR response, and hearing record. The SOR alleges six delinquent debts totaling $19,725. Applicant presented a bad check for $30,300 to her bank for payment; she received about $5,000 from the bank; and she currently owes the bank $2,400. The record establishes the disqualifying conditions in AG ¶¶ 19(a) and 19(c) requiring additional inquiry about the possible applicability of mitigating conditions. 10 Five mitigating conditions under AG ¶ 20 are potentially applicable: (a) the behavior happened so long ago,4 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;5 and (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. 4 A debt that became delinquent several years ago is still considered recent because “an applicant’s ongoing, unpaid debts evidence a continuing course of conduct and, therefore, can be viewed as recent for purposes of the Guideline F mitigating conditions.” ISCR Case No. 15-06532 at 3 (App. Bd. February 16, 2017) (citing ISCR Case No. 15-01690 at 2 (App. Bd. Sep. 13, 2016)). 5 The Appeal Board has previously explained what constitutes a “good faith” effort to repay overdue creditors or otherwise resolve debts: In order to qualify for application of [the “good faith” mitigating condition], an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term “good-faith.” However, the Board has indicated that the concept of good-faith “requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.” Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy) in order to claim the benefit of [the “good faith” mitigating condition]. (internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). 11 The Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions in ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013) as follows: Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). No mitigating conditions fully apply; however, Applicant presented some important positive financial information. Applicant described several issues that were partially or wholly beyond her control that caused financial problems: her daughter passed away; her spouse spent excessively; Applicant had medical problems; Applicant’s depression, loneliness, and medications affected her judgment; and Applicant and her spouse were divorced. Applicant is credited with mitigating the following debts: ¶ 1.a though 1.c, 1.e, and 1.f. The negative financial considerations concerns are more substantial than the mitigating information. Applicant did not establish that she showed good judgment when she was involved with six men that she met over the Internet. Applicant has not fully repaid her family for paying her title-loan debt. She owes money to the two banks that accepted fraudulent checks from her, and she has not made payments for several months to the victim-banks. She gave money to an acquaintance she met over the Internet as recently as December 2016. Her judgment was affected by depression, and she did not provide proof that her depression is sufficiently abated to entrust her with access to classified information. She provided about $50,000 to P while having delinquent debts. She provided about $10,000 each to S and lesser amounts to other acquaintances she met over the Internet. She provided funds to men she met over the Internet who are in Africa after she received the SOR. The debts in SOR ¶¶ 1.d and 1.g are not resolved. Applicant’s explanations are insufficient to mitigate financial considerations security concerns. Personal Conduct AG ¶ 15 expresses the security concern pertaining to personal conduct: 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 12 and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. AG ¶ 16 describes one condition that could raise a security concern and may be disqualifying in this case: (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information. AG ¶ 16(c) is established by Applicant’s involvement with S and P with respect to three transactions. Applicant met S over the Internet. She believed S was an Army soldier serving overseas. S claimed that he was the victim of an IED explosion, and he needed help with his medical bills. Applicant gave over $10,000 to S, while she had several delinquent debts. Applicant did not explain why she believed S needed the money when the Government provides medical care for soldiers injured in combat. Applicant deposited checks in her bank account for $4,500 and $3,800 that she suspected were fraudulent. Applicant paid $4,500 to P’s agents in Africa using money grams. P told Applicant that he was going to use the $4,500 to purchase gold for her in Africa. When the bank discovered the $4,500 check was fraudulent, the bank took all of the funds from her bank account. She currently owes the bank $2,400. The bank returned the $3,800 check to Applicant without paying it. In February 2013, Applicant met P over the Internet. She had one in-person meeting with P in a coffee shop in June 2013. Applicant sent thousands of dollars to P. In July 2015, Applicant received a check for $30,300 from an address in Africa, and P or P’s agent told her the check was from a businessman who owed money to P. The check was payable to Applicant, and she deposited the check into her bank account. After she deposited the check, she was supposed to immediately send money to P. The bank put the proceeds of the check on hold, but authorized $5,000 to $5,300 for release because she was such a good customer. She sent two money grams totaling about $5,000 to P’s agents in Africa. In August 2014, the bank notified Applicant that the check was fraudulent and took $1,000 from her account and the deposit from her pay. She estimated she owed the bank $2,400. Her most recent payment to the bank was “a few months ago.” AG ¶ 17 lists six conditions that could mitigate security concerns including: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; 13 (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and (f) the information was unsubstantiated or from a source of questionable reliability. From February 2013 to March 2016, Applicant sent money to or conducted transactions on behalf of P about 70 times. One transaction was for between $100,000 and $500,000. Applicant estimated she gave P about $50,000 of her own funds through his agents in Africa. In 2013, Applicant also picked up and then shipped five laptop computers to P’s agents in Africa because he said the laptops were for an orphanage. She purchased the laptops from three different stores. She also sent a cell phone to P. In April 2016, Applicant completed a 27-page OPM interview about her relationships with B and others she met over the Internet. This interview highlighted security concerns about foreign financial transactions with P and the others. Applicant continued her financial relationships with P and the others as recently as July 2016. The concerns under Guidelines E and F address identical issues involving judgment, trustworthiness, and reliability. For the additional reasons stated in the mitigating section of financial considerations, personal conduct security concerns are not mitigated. Criminal Conduct AG ¶ 30 expresses the security concern pertaining to criminal conduct, “Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.” 14 AG ¶ 31 describes two conditions that could raise a security concern and may be disqualifying in this case: “(a) a single serious crime or multiple lesser offenses;” and “(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.” The SOR alleges that Applicant presented and deposited into her bank account three checks for $30,300, $4,500, and $3,800. The three checks were fraudulent. If Applicant knew the three checks were fraudulent, then AG ¶¶ 31(a) and 31(c) would be established. Applicant had 10 years of experience as a bank teller. She has been employed as a financial specialist by a defense contractor for almost 17 years. She advised the bank that she was concerned about the validity of the checks and recognized they would be on hold. Despite her financial background and some suspicions about the checks, she concluded the two checks were valid for $4,500 and $3,800 when the bank cleared one check. She took a $5,000 advance on the check for $30,300 pending its clearance. Notwithstanding, she was also well aware that if she used funds from the account where she deposited the checks she would be personally responsible for the resulting debt. The police did not charge Applicant with uttering the three fraudulent checks. She has refuted the criminal conduct security concerns. 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 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 for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I have incorporated my comments under Guidelines F and E in my whole-person analysis. Some of the factors in AG ¶ 2(a) warrant additional comment. Applicant is a 53-year-old senior financial specialist employed by a defense contractor for almost 17 years in various financial positions. She received an associate’s degree in arts and sciences. She has a 23-year-old son who is serving in the Navy. There is no evidence of security violations. 15 A colleague who worked with Applicant for six years and her manager since 2011 described her as diligent, dedicated, helpful, detail oriented, reliable, loyal, patriotic, and trustworthy. She provided 15 certificates, awards, and complimentary summaries of her accomplishments and contributions to her employer. These statements and other work- related documentation support continuation of her security clearance. Several issues were partially or wholly beyond Applicant’s control and caused Applicant to have financial problems: her daughter passed away in 2012; her spouse spent excessively; Applicant had medical problems; Applicant’s depression, medications, and loneliness affected her judgment; and in 2013, Applicant and her spouse were divorced. Applicant’s has extensive financial experience. Nevertheless, she made a series of financial decisions that showed poor judgment. She uttered three checks totaling $39,000 for P she suspected fraudulent, and then she sent thousands of dollars to P or P’s agents in Africa before being certain the checks were valid. Even after P defrauded her, she continued her relationship with P. She has not fully repaid her debts to the two banks where the checks were uttered. She showed poor judgment when she gave substantial amounts to six acquaintances. She met P once in a coffee shop, and she never met in person the other five acquaintances who were overseas or had overseas connections. She did not show sufficient due diligence in verifying their identities or their claims of being in financial or physical jeopardy. She did not describe seeking the assistance of the State Department or other federal entities that may have been able to help these U.S. citizen-acquaintances while they were in foreign countries. Even after receipt of the SOR, she continued to send money outside the United States. Her processing of numerous financial transactions though her personal bank accounts raises additional unmitigated judgment concerns. I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude criminal conduct security concerns are mitigated; however, personal conduct and financial considerations security concerns are not mitigated. For the reasons stated, I conclude she is not eligible for access to classified information. 16 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: AGAINST APPLICANT Subparagraphs 1.a through 1.c: For Applicant Subparagraph 1.d: Against Applicant Subparagraphs 1.e and 1.f: For Applicant Subparagraph 1.g: Against Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a through 2.d: Against Applicant Subparagraph 2.e: For Applicant Paragraph 3, Guideline J: FOR APPLICANT Subparagraph 3.a: For 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 or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. _________________________ Mark Harvey Administrative Judge