1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ---------------------- ) ISCR Case No. 16-01135 ) ) Applicant for Security Clearance ) Appearances For Government: Adrienne Driskill, Esquire, Department Counsel For Applicant: Pro se July 19, 2017 ______________ Decision ______________ ROSS, Wilford H., Administrative Judge: Applicant has paid or resolved all of his once past-due debts. Based on a review of the pleadings, testimony, and exhibits, eligibility for access to classified information is granted. Statement of the Case Applicant submitted his most recent Electronic Questionnaire for Investigations Processing (e-QIP) on September 16, 2015. (Government Exhibit 1.) On June 27, 2016, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing security concerns under Guideline F (Financial Considerations). 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 2 Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, effective within the Department of Defense after September 1, 2006.1 Applicant answered the SOR in writing (Answer) on July 26, 2016, and requested a hearing before an administrative judge. Department Counsel was prepared to proceed on August 23, 2016. 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 13, 2016. I convened the hearing as scheduled on October 25, 2016. The Government offered Government Exhibits 1 through 5, which were admitted without objection. Applicant offered Applicant Exhibits A through Q, which were admitted without objection, and testified on his own behalf. I granted Applicant’s request to leave the record open until November 10, 2016, to permit him to submit additional evidence. DOHA received the transcript of the hearing (Tr.) on November 1, 2016. Applicant submitted Applicant Exhibits R, S, and T in a timely manner. Department Counsel had no objection and the exhibits were admitted into evidence. The the record closed as scheduled. Findings of Fact Applicant is 38 years old and employed by a defense contractor as an Instructional Systems Developer. He has a bachelor’s degree. (Applicant Exhibit F.) Applicant separated from his wife in 2012, and has two minor children. He is seeking to retain a security clearance previously granted in connection with his employment. He has held a security clearance at various times during both his military and civilian careers. Paragraph 1 (Guideline F, Financial Considerations) The Government alleges in this paragraph that Applicant is ineligible for clearance because he is financially overextended and therefore potentially unreliable, untrustworthy, or at risk of having to engage in illegal acts to generate funds. In his answer to the SOR, Applicant admitted all the allegations in the SOR with explanations. He also submitted additional evidence to support his request for a finding of national security eligibility. Applicant stated that his financial problems, as set out below, were due to several extenuating circumstances. Applicant served in the Marine Corps from 1996 to 2005. After being honorably discharged from the Marine Corps, he was employed by a civilian contractor and traveled for work until he was laid off in 2014. During most of that period he let his wife handle the finances. Unfortunately, she did not do a good job and it was not until about 2012 that he found out about their financial problems. In addition, off and on from 2008 through 2010, a family friend lived with Applicant and his wife. This friend 1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines. 3 took advantage of Applicant’s wife financially, and left Applicant with several bad debts. Applicant’s wife confirmed this in writing. Once Applicant took control of his finances, he changed his lifestyle significantly, so as to be able to pay his now delinquent debts and maintain his current debts. This continued through his eight months of unemployment from September 2014 through May 2015, when he obtained his current job. (Applicant Exhibits A and E; Tr. 37-40, 65-66, 71-75, 78-81.) The SOR alleged, and Applicant admitted, that he owed approximately $28,338 in past-due indebtedness to various creditors. Support for the existence and amount of the debts is supported by admissions of the Applicant, and credit reports submitted by the Government dated November 16, 2005; October 7, 2015; August 23, 2016. (Government Exhibits 1, 2, 3, 4, and 5.) Applicant also submitted credit reports, dated October 24, 2016, from the three credit-reporting agencies. (Applicant Exhibits O, P, and Q.) The current status of the debts is as follows: 1.a. Applicant admitted that he owed a creditor $219 for a past-due medical debt regarding one of his minor children. This debt was paid in full on July 19, 2016, as confirmed by a receipt from the creditor. This debt is resolved. (Applicant Exhibit H; Tr. 26-28.) 1.b. Applicant admitted that he owed a creditor $120 for a past-due medical debt regarding one of his minor children. This debt was paid in full on July 19, 2016, as confirmed by a receipt from the creditor. This debt is resolved. (Applicant Exhibit I; Tr. 27.) 1.c. Applicant admitted that he owed a finance company $14,835. However, Applicant also stated that he could not confirm what the debt was for when he talked to the finance company in July 2016. Applicant testified that at that time he provided the finance company with, “my Social Security number, my current address, the address that I had [in another city], and my name and wife’s name and Social Security number, and there was nothing that came up with any of that information.” This debt only appears on Government Exhibit 4, and not on any of the other credit reports of the Government or Applicant. I find that Applicant has made a good-faith effort to resolve this debt. (Tr. 28- 32, 69-71.) 1.d. Applicant admitted owing a collection agent $10,265 for a past-due credit card debt. However, Applicant further stated that he could not remember owning this particular credit card. Applicant’s wife did have a card with that bank. Applicant called the creditor, who could not provide Applicant with validation of the debt or the amount. As a result of not being able to legally validate the debt, the collection agent sent Applicant a letter stating, “In the spirit of good customer service, we are closing the above referenced account. All collection efforts have ceased and will not resume.” The letter also confirmed that the balance owed was $0. This debt is resolved. (Applicant Exhibit R; Tr. 32-35.) 4 1.e. Applicant admitted owing his home city $29 for a parking ticket. He paid this debt on July 14, 2016, as confirmed by a statement from the city treasurer. This debt is resolved. (Applicant Exhibit J; Tr. 36-37.) 1.f. Applicant admitted owing his home city $31 for a second parking ticket. He paid this debt on July 14, 2016, as confirmed by a statement from the city treasurer. This debt is resolved. (Applicant Exhibit J; Tr. 36-37.) 1.g. Applicant admitted owing a creditor $778 for a past-due credit card debt. Applicant made a payment arrangement with this creditor whereby he would pay $97.27 a month for eight months to resolve the debt. Applicant submitted documentation from the creditor and his bank to confirm that he has been making consistent monthly payments under the agreement since July 2016. This debt is being resolved. (Applicant Exhibits K, S, and T; Tr. 40-43.) 1.h. Applicant admitted that he owed a creditor $311 for a past-due medical debt regarding one of his minor children. This debt was paid in full on September 16, 2016, as confirmed by a receipt from the creditor. This debt is resolved. (Applicant Exhibit L; Tr. 44-45.) 1.i. Applicant admitted owing $97 for a past-due utility bill. Applicant paid this debt in full on July 14, 2016, as confirmed by a receipt from the utility company. This debt is resolved. (Applicant Exhibit M; Tr. 45.) 1.j. Applicant admitted owing $445 for a past-due credit card debt. Applicant paid the debt in full for less than the full balance on July 24, 2016, as confirmed by a receipt from the bank. This debt is resolved. (Applicant Exhibit N; Tr. 46.) 1.k. Applicant admitted owing a past-due credit card debt in the amount of $848. This was a credit card of Applicant’s wife. He was unable to find out any information about this creditor despite repeated attempts. Applicant spoke to the parent company of the bank that issued the credit card, but the parent company was unable to provide Applicant any information. Once again, he provided them with his name, his wife’s name, Social Security numbers, and addresses without success. This debt only appears on Government Exhibit 4, and not on any of the other credit reports of the Government or Applicant. I find that Applicant has made a good-faith effort to resolve this debt. (Tr. 46- 49.) Applicant’s current financial situation is stable. His period of unemployment showed Applicant how he could make do with less, and he has continued to do that. He provides support for his wife and two children, which does not prove a strain on his finances. (Applicant Exhibits O, P, and Q; Tr. 57-68, 79-84.) 5 Mitigation Applicant provided three letters of recommendation from people who knew him in the Marine Corps, the defense industry, or both. He is described as being “extremely professional and trustworthy” by one writer. (Applicant Exhibit B.) Another writer states Applicant is a person of “integrity.” (Applicant Exhibit C.) Applicant’s Exhibit D is from Applicant’s current supervisor. The writer states, “I trust [Applicant] and do not have a reason to doubt his integrity.” The supervisor also provided a copy of an impact award that was given to Applicant in May 2016 because of his hard work on a particular contract. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire process is a conscientious scrutiny of applicable guidelines in the context 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, “Any doubt concerning personnel being considered for national security eligibility 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. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14, requires the Government to 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, and has the ultimate burden of persuasion as to obtaining 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 6 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 national security eligibility. 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 or sensitive information. Finally, as emphasized in Section 7 of Executive Order 10865, “Any determination under this order adverse to an applicant 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.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.) Analysis Paragraph 1 (Guideline F, Financial Considerations) The security concerns relating to the guideline for financial considerations are set out in AG ¶ 18, which reads in pertinent part: Failure 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 or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personal security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. AG ¶ 19 describes two conditions that could raise security concerns and may be disqualifying in this case: (a) inability to satisfy debts; and (c) a history of not meeting financial obligations. Applicant had approximately $28,000 in past-due debts that he had not paid as of the time the SOR was issued. These facts establish prima facie support for the foregoing disqualifying conditions, and shift the burden to Applicant to mitigate those concerns. 7 The guideline includes four conditions in AG ¶ 20 that could mitigate the security concerns arising from Applicant’s alleged 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, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances; (d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; 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. Applicant has paid or otherwise resolved all of the debts in the SOR. Most of the past-due indebtedness was incurred, or became delinquent, about the time of his separation from his wife and period of unemployment. Once he was made aware of the debts, and of the Government’s concerns, Applicant moved quickly to pay the debts he could either in full, or through negotiated payments. Applicant provided documented proof that the debt in subparagraph 1.d was resolved in his favor because the creditor could not legally validate the debt. Despite his best efforts, he was unable to find any confirmation of the debts in subparagraphs 1.c, and 1.k. His current financial status is stable, and he evinces a credible intent of being able to maintain that stability into the future. He has fully mitigated all the allegations in the SOR. Paragraph 1 is found for Applicant. 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(d): (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 8 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 pertinent facts and circumstances surrounding this case. Applicant has mitigated the concerns regarding his financial situation. Overall, the record evidence does not create substantial doubt as to Applicant=s present eligibility and suitability for national security eligibility, and a security clearance. 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: FOR APPLICANT Subparagraphs 1.a through 1.k: 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 grant or continue Applicant=s national security eligibility for a security clearance. Eligibility for access to classified information is granted. WILFORD H. ROSS Administrative Judge