1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-00298 ) ) Applicant for Security Clearance ) Appearances For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Pro se June 6, 2017 ______________ Decision ______________ CEFOLA, Richard A., Administrative Judge: Statement of the Case On June 11, 2015, Applicant submitted a security clearance application (e-QIP). On June 9, 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. Applicant answered the SOR on July 5, 2015 (Answer), and requested a hearing before an administrative judge. In his Answer, he admitted all of the allegations with some explanations. The case was assigned to me on August 31, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on September 12, 2016, scheduling the hearing for September 28, 2016. The hearing was convened as scheduled. The Government offered Exhibits (GXs) 1 through 3, which were admitted 2 without objection. Despite my leaving the record open until October 28, 2016, Applicant has offered no exhibits. However, Applicant did testify on his own behalf. The record closed on October 28, 2016. DOHA received the transcript of the hearing (TR) on October 7, 2016. Findings of Fact Applicant is 45 years old. He has been employed with a Government contractor for six years. (TR at page 14 line 3 to page 16 line 5.) He is divorced and has three children. (Id.) Applicant attributes his present past-due indebtedness to periods of unemployment stretching from June of 2009 until December of 2010, and to his divorce (TR at page 16 line 16 to page 18 line 1, at page 18 lines 14~24, and GX 1 at pages 11~16 and 20~21.) The Government alleged that Applicant is ineligible for a clearance because he made financial decisions that indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which raise questions about his reliability, trustworthiness and ability to protect classified information. The SOR identified 13 debts totaling approximately $36,167, and a Federal tax lien totaling about $13,498. Guideline F - Financial Considerations 1.a., 1.b., 1.e.~1.m. Applicant admits that he is indebted to 11 creditors for past- due debts totaling about $30,000. (TR at page 19 line 4 to page 20 line 8, and at page 22 line 3 to page 27 line 10.) Despite having been given one month to submit additional documentation regarding the status of these debts, Applicant has submitted nothing. These allegations are found against Applicant. 1.c. and 1.d. Applicant admits that he is indebted to Creditor C for two past-due debts totaling about $218. (TR at page 20 line 9 to page 22 line 2.) He avers that he is making monthly payments of $45 towards these debts, but has submitted nothing in support of his averment. These allegations are found against Applicant. 1.n. Applicant admits that he is indebted to the Federal Government on a tax lien totaling about $13,498 for tax years 2009, 2010, and 2012. (TR at page 18 lines 2~10, and at page 27 line 16 to page 31 line 11.) He avers that he is making monthly payments of $175 towards this lien, but has submitted nothing in support of his averment. This allegation is found against Applicant. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (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. 3 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(a) 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 the 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. 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 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). Analysis Guideline F - Financial Considerations The security concern for Financial Considerations is set out in AG ¶ 18: 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 4 protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. The guideline notes several conditions that could raise security concerns under AG ¶ 19. Two are potentially applicable in this case: (a) inability or unwillingness to satisfy debts; and (c) a history of not meeting financial obligations. Applicant accumulated a significant amount of delinquent debt. His actions demonstrated both a history of not addressing his debt and an inability to do so. The evidence is sufficient to raise the above disqualifying conditions. Two Financial Considerations mitigating conditions under AG ¶ 20 are potentially applicable: (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; and (d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts. The evidence shows that Applicant has significant past-due debts and a substantial Federal tax lien. He provided no documentation showing efforts to repay or otherwise resolve these debts. Furthermore, his behavior did not happen a long ago, but is continuing. It does cast doubt on his current reliability, trustworthiness, and good judgment. AG ¶¶ 20(a), and 20(d) are not mitigating. 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. 5 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 relevant facts and circumstances surrounding this case. I conclude Applicant has not mitigated Financial Considerations security 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: AGAINST APPLICANT Subparagraphs 1.a.~n.: 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 or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Richard A. Cefola Administrative Judge