1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) --- ) ISCR Case No. 15-04407 ) Applicant for Security Clearance ) Appearances For Government: Carroll J. Connelley, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ GALES, Robert Robinson, Administrative Judge: Applicant mitigated the security concerns regarding criminal conduct, but failed to mitigate the security concerns regarding financial considerations. Eligibility for a security clearance and access to classified information is denied. Statement of the Case On September 30, 2014, Applicant applied for a security clearance and submitted an Electronic Questionnaire for Investigations Processing (e-QIP) version of a Security Clearance Application.1 On March 24, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to him, under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended and modified; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended and modified (Directive); and the Adjudicative Guidelines for Determining Eligibility For Access to Classified Information (December 29, 2005) applicable to all adjudications and other determinations made under the Directive, effective September 1, 2006.2 The SOR 1 Item 2 (e-QIP, dated September 30, 2014). 2 alleged security concerns under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct), and detailed reasons why the DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The SOR recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. It is unclear when Applicant received the SOR, as there is no receipt in the case file. In a sworn statement, dated April 20, 2016, Applicant responded to the SOR and elected to have his case decided on the written record in lieu of a hearing.3 A complete copy of the Government’s file of relevant material (FORM) was mailed to Applicant by the Defense Office of Hearings and Appeals (DOHA) on July 29, 2016, and he was afforded an opportunity, within a period of 30 days after receipt of the FORM, to file objections and submit material in refutation, extenuation, or mitigation. In addition to the FORM, Applicant was furnished a copy of the Directive as well as the previous Adjudicative Guidelines applicable to his case. Applicant received the FORM on August 13, 2016. Applicant’s response was due on September 12, 2016. Applicant failed to submit any response. The case was assigned to me on July 3, 2017. Findings of Fact In his Answer to the SOR, Applicant admitted, with comments, all of the factual allegations pertaining to financial considerations (¶¶ 1.a. through 1.j.) and one of the factual allegations pertaining to criminal conduct (¶ 2.a.) of the SOR. He also furnished comments regarding the remaining allegation. Applicant’s admissions and comments are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact: Applicant is a 31-year-old employee of a defense contractor. He has been a help desk analyst with the company since December 2014. He previously held a position of help desk specialist with another company from May 2012 until December 2014. He is a 2004 high school graduate, and he has several college credits, but no degree. Applicant enlisted in the U.S. Army in May 2004, and he served on active duty until May 2012, at which time, as a specialist, he was honorably discharged. He was granted a secret security clearance in 2005. Applicant was married in August 2007, and divorced in January 2013. He has two daughters, born in 2008 and 2011. 2 Effective June 8, 2017, by Directive 4 of the Security Executive Agent (SEAD 4), dated December 10, 2016, National Security Adjudicative Guidelines (AG) for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position, were established to supersede all previously issued national security adjudicative criteria or guidelines. Accordingly, those guidelines previously implemented on September 1, 2006, under which this security clearance review case was initiated, no longer apply. In comparing the two versions, there is no substantial difference that might have a negative effect on Applicant in this case. 3 Item 1 (Answer to the SOR, dated April 20, 2016). 3 Financial Considerations4 It is unclear what Applicant’s finances were like before they deteriorated in 2014. A review of his October 2014 credit report reveals a number of accounts that became delinquent between 2009 and 2012. Applicant claimed that his financial issues arose as a result of his divorce in January 2013 when he had to take on the marital debts (actually two credit cards, while his wife assumed responsibility for one credit card) and lost his wife’s income. He added that about 18 months before September 2014, he had “very little negative debt – characterized by him as decent credit – and he was able to meet his financial obligations without issue. He said that since his divorce, he had a difficult time adjusting and that he was working towards getting back above water in terms of his finances.5 The Final Decree of Divorce included an Income Assignment Order issued by a chancellor directing that Applicant’s employer deduct $614 per month for child support to be sent to the appropriate state office, but that Order was amended the judge to direct payments of $800 per month. Applicant contended that the required monthly payments for the marital debts he was assigned came to approximately $2,431. In order to make the required payments, he obtained a loan. His monthly bills, including rent, car, utilities, cell phone, and loan repayment, came to $1,600, leaving him only $300 per month for food, gasoline, and other expenses. It became evident to him that he did not have enough funds to meet all of his financial obligations. In an effort to lower his expenses, Applicant took the following actions: to save money on gas, he purchased a new vehicle, delaying payments for 90 days, but increasing his car payment, and expecting the increase to be offset by savings in gasoline; he opened two new credit cards for emergencies; and took out another personal loan. Things failed to work out as he anticipated, and he took other actions in an attempt to catch up. A series of payday loans and a refinanced earlier loan merely increased his problems. Applicant was taking out loans to cover earlier loans, and his tactics were not working. He defaulted on his car loan and several other accounts. He used his income tax refund to purchase a new vehicle, but it broke down. He purchased another vehicle, but the payment was too high. Applicant was terminated by his employer in December 2014 because, as a disgruntled employee, he exposed confidential and personal information regarding other employees to his supervisor. Although he quickly found another job, his hourly wage was reduced to $18. Applicant admitted that he could have made better financial decisions. He claimed that he is unlikely to repeat any of the behaviors that led him to the situation which he is. While he offered no evidence – written or verbal – of attempting to contact any of his creditors in an effort to reach repayment agreements or settlements, or to make any payments, Applicant contended that he developed and enacted a plan to take care of his 4 General source information pertaining to the financial accounts discussed below can be found in the following exhibits: Item 2, supra note 1; Item 1, supra note 3; Item 4 (Combined Experian, TransUnion, and Equifax Credit Report, dated October 8, 2014); Item 5 (Equifax Credit Report, dated March 26, 2016); TransUnion Credit Report, dated April 19, 2016, attached to Item 1. 5 Item 2, supra note 1, at 43; Item 1, supra note 3. 4 debts. His plan was to engage the services of a nationally-known credit repair firm to dispute the validation of the debts, and the amounts reflected for those debts, listed in his credit reports, and then have his remaining debts consolidated. Such actions generally result in the removal of some accounts for a variety of reasons. He enrolled in the credit repair program on April 16, 2016.6 Although Applicant had five months to submit documentation regarding actions supposedly taken and results achieved in resolving his debts, Applicant failed to submit any such documentation. The SOR identified ten delinquent debts that had been placed for collection or charged off, as generally reflected by his October 2014 credit report or his March 2016 credit report. There is no evidence that there were any efforts made by Applicant to reach repayment agreements or settlements, or to make any payments, for any of those debts, totaling approximately $35,000. Those debts are described below. There is an automobile loan with a high credit of $25,302 that was placed for collection and $13,044 was charged off (SOR ¶ 1.a.); there is an unspecified type of account with a high credit of $9,891 and past-due and unpaid balance of $9,831 that was placed for collection and charged off (SOR ¶ 1.b.); there is an unspecified type of account with a high credit of $5,621 and past-due and unpaid balance of $6,712 that was placed for collection and charged off (SOR ¶ 1.c.); there is an automobile loan account with an unpaid balance of $3,125 that was placed for collection and charged off (SOR ¶ 1.d.); there is a bank-issued credit card with a $500 credit limit and past-due and unpaid balance of $590 that was placed for collection and charged off (SOR ¶ 1.e.); there is an unspecified type of account with a past-due and unpaid balance of $495 that was placed for collection and charged off (SOR ¶ 1.f.); there is an unspecified type of credit union account with a past-due and unpaid balance of $432 that was placed for collection and charged off (SOR ¶ 1.g.); there is an unspecified type of account with an unpaid balance of $255 (SOR ¶ 1.h.); there is a bank-issued credit card with a $300 credit limit and past- due and unpaid balance of $483 that was placed for collection and charged off (SOR ¶ 1.i.); and there is a cellular telephone account with an unpaid balance of $62 that was placed for collection (SOR ¶ 1.j.). None of the accounts has been resolved. Applicant contends that his annual salary is now $56,500 and that he is paying his current bills on time. Nevertheless, Applicant did not submit a Personal Financial Statement to reflect his net monthly income; monthly expenses; or any monthly remainder that might be available for discretionary spending or savings. There is no evidence of a budget. There is no evidence of any financial counseling. As Applicant noted, he also has one delinquent account for $4,532 for a broken lease that was not mentioned in the SOR. Under the circumstances, it appears that Applicant’s finances are still not under control. After a multi-year period of ignoring his delinquent debts, essentially attributing his inaction to a divorce and insufficient funds, Applicant’s first order of business was not to contact his creditors, but apparently to dispute his delinquent accounts to have them removed from his credit reports. In the absence of documentation pertaining to Applicant’s 6 Engagement Agreement and Limited Designation of Agency, dated April 16, 2016, attached to Item 2. 5 delinquent accounts, and his current financial situation, it remains unclear if Applicant’s finances are under control. Criminal Conduct In March 2013, when Applicant was exercising his weekend parental visitation, he and his ex-wife got into an argument over the visitation schedule and parenting plan they had in place. In an effort to end the argument, he attempted to leave with his children, carrying the youngest in his arms. As he approached his car, his ex-wife approached him from behind and began pulling his daughter out of his arms. In anticipation of dropping her, Applicant instinctively kicked his ex-wife in the shin to get her to release the child. His ex-wife called the police. Applicant was arrested and charged with domestic assault, a misdemeanor. Applicant was ordered to attend eight anger management classes, and he did so in June and July 2013. In August 2013, the charge was dismissed nolle prosequi. Applicant acknowledged that what he did was shameful and ill-advised. He vowed that such conduct will never recur. In September 2014, Applicant was again exercising his parental visitation. One night, his youngest daughter woke up yelling and crying for a lengthy period, and he was unable to calm her down. He held her too tightly in an effort to stop her from crying. The next day, when he dropped her off for childcare, she had a mark on her face from the previous evening. The childcare provider alerted the department of children’s services, and Applicant was charged with child abuse and ordered to appear in court in February 2015. He was again ordered to take anger management classes. Applicant failed to submit documentation to reflect the disposition of the charge. Applicant stated that his actions, even unintentionally, caused him “an inexpressible amount of grief.” Character References Applicant’s program manager, project manager, and team lead are highly supportive of Applicant. They characterized him as very trustworthy, dedicated, reliable, responsible, cheerful, loyal, smart, hard-working, and conscientious. He accepts additional burdens without protest, and demonstrates a level of responsibility that goes above and beyond his assigned duties.7 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, “no one has a ‘right’ to a security clearance.”8 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. The President has authorized the Secretary of Defense or his designee to 7 Character References, various dates, attached to Item 1. 8 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 6 grant an applicant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”9 When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the guidelines in SEAD 4. In addition to brief introductory explanations for each guideline, the guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information. An administrative judge need not view the guidelines as inflexible, ironclad rules of law. Instead, acknowledging 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. 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 meaningful decision. In the decision-making process, facts must be established by “substantial evidence.”10 The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR. Once the Government has produced substantial evidence of a disqualifying condition, under Directive ¶ E3.1.15, the applicant has the burden of persuasion to present evidence in refutation, explanation, extenuation or mitigation, sufficient to overcome the doubts raised by the Government’s case. The burden of disproving a mitigating condition never shifts to the Government.11 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 as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those 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. Furthermore, “security clearance determinations should err, if they must, on the side of denials.”12 9 Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified. 10 “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “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). 11 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 12 Egan, 484 U.S. at 531. 7 Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”13 Thus, nothing in this decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has or has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. 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. Analysis Guideline F, Financial Considerations The security concern relating to the guideline for Financial Considerations is set out in AG ¶ 18: 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 personnel 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. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage. The guideline notes several conditions that could raise security concerns. Under AG ¶ 19(a), an “inability to satisfy debts” is potentially disqualifying. In addition, AG ¶ 19(b) may apply if there is an “unwillingness to satisfy debts regardless of the ability to do so.” Similarly, under AG ¶ 19(c), “a history of not meeting financial obligations” may raise concerns. “Consistent spending beyond one's means or frivolous or irresponsible spending, which may be indicated by excessive indebtedness, significant negative cash flow, a history of late payments or of non-payment, or other negative financial indicators” may raise concerns under ¶ 19(e). Applicant was taking out loans to cover earlier loans. His failure to satisfy all of his debts allowed them to become delinquent. Accounts were placed for collection or charged off. At least one automobile was repossessed. AG ¶¶ 19(a) and 19(c) apply; AG ¶¶ 19(b) and 19(e) partially apply. The guideline also includes examples of conditions that could mitigate security concerns arising from financial difficulties. Under AG ¶ 20(a), the disqualifying condition 13 See Exec. Or. 10865 § 7. 8 may be mitigated where “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.” Also, under AG ¶ 20(b), financial security concerns may be mitigated where “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, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances.” Evidence that “the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control” is potentially mitigating under AG ¶ 20(c). Similarly, AG ¶ 20(d) applies where the evidence shows “the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts.”14 In addition, AG ¶ 20(e) may apply if “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.” AG ¶ 20(b) partially applies. None of the remaining mitigating conditions apply. The nature, frequency, and recency of Applicant’s continuing financial difficulties since about 2009 make it difficult to conclude that it occurred “so long ago” or “was so infrequent,” or that it is “unlikely to recur.” He attributed his eventual financial difficulties to his January 2013 divorce; the loss of his ex-wife’s income; and his court-ordered child support, for leaving him with insufficient funds to manage his debts. He also was seemingly naive in his financial habits by taking out loans to cover earlier loans, and foolish in purchasing vehicles when he should have realized that he would not have sufficient funds to make his monthly payments. There is no evidence of financial counseling. There is no documentary evidence to support any good-faith efforts to address his debts. Applicant’s only proven action was to engage the support of a credit repair company to dispute nearly all of the accounts appearing in Applicant’s credit report. None of the disputes sets forth a reasonable basis to dispute the legitimacy of the past- due debts, and there is no documented proof to substantiate that disputes were made or, if they were, the bases of those disputes. That position indicates the absence of any priority to timely address his aging debts. There is also an inference that he is simply waiting for the debts to drop off his credit reports. 14 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 [or statute of limitations]) 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)). 9 Clearance decisions are aimed at evaluating an applicant’s judgment, reliability, and trustworthiness. They are not a debt-collection procedure. The guidelines do not require an applicant to establish resolution of each and every debt alleged in the SOR. An applicant needs only to establish a plan to resolve financial problems and take significant actions to implement the plan. There is no requirement that an applicant immediately resolve or make payments on all delinquent debts simultaneously, nor is there a requirement that the debts alleged in an SOR be paid first. Rather, a reasonable plan and concomitant conduct may provide for the payment of such debts one at a time. In this instance, there are no references to a plan other than to remove the debts from Applicant’s credit reports, and there are lengthy periods of inactivity. There is little evidence to reflect that Applicant’s financial problems are under control. Under the circumstances, Applicant has not acted responsibly by failing to address nearly all of his delinquent accounts and by failing to initiate meaningful efforts to work with his older creditors.15 He failed to submit documentation to support his purported efforts regarding all of his debts. Applicant’s actions, or relative inaction, under the circumstances casts substantial doubt on his current reliability, trustworthiness, and good judgment.16 Guideline J, Criminal Conduct The security concern relating to the guideline for Personal Conduct is set out in AG ¶ 30: “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.” The guideline notes a condition under AG ¶ 31 that could raise security concerns in this case: AG ¶ 31(b) “evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.” There are two incidents in March 2013 and September 2014 involving actions by Applicant that resulted in intervention by local authorities. They both involved his exercise of parental visitation, kicking his ex-wife or squeezing his daughter to calm her down, and they both resulted in Applicant’s court-mandated attendance at anger management classes. The 2013 incident charge was dismissed nolle prosequi. Applicant failed to submit documentation to reflect the disposition of the September 2014 charge. Applicant acknowledged that what he did in 2013 was shameful and ill-advised, and that his 2014 15 “Even if Applicant’s financial difficulties initially arose, in whole or in part, due to circumstances outside his [or her] control, the Judge could still consider whether Applicant has since acted in a reasonable manner when dealing with those financial difficulties.” ISCR Case No. 05-11366 at 4 n.9 (App. Bd. Jan. 12, 2007) (citing ISCR Case No. 99- 0462 at 4 (App. Bd. May 25, 2000); ISCR Case No. 99-0012 at 4 (App. Bd. Dec. 1, 1999); ISCR Case No. 03-13096 at 4 (App. Bd. Nov. 29, 2005)). A component is whether he or she maintained contact with creditors and attempted to negotiate partial payments to keep debts current. 16 See ISCR Case No. 09-08533 at 3-4 (App. Bd. Oct. 6, 2010). 10 actions, even unintentionally, caused him “an inexpressible amount of grief.” He vowed that such conduct will never recur. AG ¶ 31(b) has been established. The guideline also includes examples of conditions under AG ¶ 32 that could mitigate security concerns arising from Criminal Conduct: AG ¶ 32(a) “so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; AG ¶ 32(c) “no reliable evidence to support that the individual committed the offense;” and AG ¶ 32(d): there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. I have concluded that AG ¶¶ 32(a) and 32(d) apply to both incidents, and that AG ¶ 32(c) partially applies to the 2014 incident. Applicant’s criminal activity was exclusively associated with his exercise of parental visitation rights. His reaction to his wife’s attempted interference with his efforts to exercise his rights and to avoid a confrontation with her was not an intentional kicking, but rather an instinctive one. Considering the court’s resolution of the charge, there is support for Applicant’s position, reaction, and ultimate acknowledgment that what he had done was shameful and ill-advised, but it did occur. Regarding the charge of child abuse, the initial information was derived from Applicant’s recitation of the facts as he remembered them. There is no documentation from the department of children’s services, police, or courts. Applicant denied the allegation in the SOR. He candidly reported the 2013 incident in his e-QIP. Recognizing the Government’s burden of proving the child abuse allegation, I have concluded that Department Counsel has failed to carry that burden. Applicant has apparently turned his relationship with his ex-wife around and now has a stable lifestyle and relationship with her and their two children; he has rehabilitated himself by avoiding further criminal or domestic violence activity for the past three years, or longer. In addition, he has established a good employment record with his employer and coworkers, and is well- liked. Applicant’s criminal conduct, under the circumstances, no longer casts doubt on his current reliability, trustworthiness, and good judgment. 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 SEAD 4, App. A, ¶ 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 11 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 SEAD 4, App. A, ¶ 2(c), the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Moreover, I have evaluated the various aspects of this case in light of the totality of the record evidence and have not merely performed a piecemeal analysis.17 There is some evidence in favor of mitigating Applicant’s conduct. There is no evidence of misuse of information technology systems, or mishandling protected information. He candidly acknowledged having financial issues and criminal conduct issues when he completed his e-QIP. He has established a good employment record with his employer and coworkers, and is well-liked. The disqualifying evidence under the whole-person concept is simply more substantial. During an unspecified period before his divorce in 2013, as well as following the divorce, he took out loans to cover earlier loans. His failure to satisfy all of his debts allowed them to become delinquent. Accounts were placed for collection or charged off. At least one automobile was repossessed. He submitted no documentary evidence to support any good-faith efforts to address his debts. Applicant’s only proven action was to engage the support of a credit repair company to dispute nearly all of the accounts appearing in Applicant’s credit report. There is no reasonable basis to dispute the legitimacy of the past-due debts, and there is no documented proof to substantiate that disputes were made or, if they were, the bases of those disputes. There is no evidence of financial counseling. There are also two incidents in March 2013 and September 2014 involving actions by Applicant that resulted in intervention by local authorities. They both involved his exercise of parental visitation, kicking his ex-wife or squeezing his daughter to calm her down, and they both resulted in Applicant’s court-mandated attendance at anger management classes. The Appeal Board has addressed a key element in the whole-person analysis in financial cases stating:18 In evaluating Guideline F cases, the Board has previously noted that the concept of “meaningful track record” necessarily includes evidence of actual debt reduction through payment of debts. However, an applicant is not required, as a matter of law, to establish that he [or she] has paid off each and every debt listed in the SOR. All that is required is that an applicant demonstrate that he [or she] has “. . . established a plan to resolve his [or 17 See U.S. v. Bottone, 365 F.2d 389, 392 (2d Cir. 1966); See also ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). 18 ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008) (internal citations omitted). 12 her] financial problems and taken significant actions to implement that plan.” The Judge can reasonably consider the entirety of an applicant’s financial situation and his [or her] actions in evaluating the extent to which that applicant’s plan for the reduction of his outstanding indebtedness is credible and realistic. See Directive ¶ E2.2(a) (“Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.”) There is no requirement that a plan provide for payments on all outstanding debts simultaneously. Rather, a reasonable plan (and concomitant conduct) may provide for the payment of such debts one at a time. Likewise, there is no requirement that the first debts actually paid in furtherance of a reasonable debt plan be the ones listed in the SOR. Applicant has demonstrated a very poor track record of debt reduction and elimination efforts, by failing to address his debts, except by engaging a firm to dispute those debts. Overall, the evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all of these reasons, while I conclude that Applicant has mitigated the security concerns arising from his criminal conduct, I also conclude that Applicant has failed to mitigate the security concerns arising from his financial considerations. See SEAD 4, App. A, ¶¶ 2(d)(1) through 2(d)(9). 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.j: Against Applicant Paragraph 2, Guideline J: FOR APPLICANT Subparagraphs 1.a. and 1.b: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ ROBERT ROBINSON GALES Administrative Judge