1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01767 ) Applicant for Security Clearance ) Appearances For Government: Andrea M. Corrales, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant mitigated the security concerns under Guideline F, financial considerations. Eligibility for access to classified information is granted. Statement of the Case On June 13, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) 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; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DOD on September 1, 2006. On June 8, 2017, new AG were implemented and are effective for decisions issued after that date.1 1 I considered the previous AG, effective September 1, 2006, as well as the new AG, effective June 8, 2017. My decision would be the same if the case was considered under the previous AG. 2 Applicant answered the SOR on July 11, 2016, and elected to have her case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s file of relevant material (FORM). Applicant received it on November 29, 2016. She was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation within 30 days of receipt of the FORM. The Government’s evidence is identified as Items 1 through 5. She provided a response to the FORM and documents that were marked as Applicant’s Exhibits (AE) A through N.2 There were no objections to any exhibits and they are admitted into evidence. The case was assigned to me on July 21, 2017. Findings of Fact Applicant denied all allegations in the SOR. After a thorough and careful review of the pleadings and exhibits submitted, I make the following findings of fact. Applicant is 42 years old. She served on active duty from 1996 to 2001 and was honorably discharged. She married in 1999 and has a child from the marriage, and another from a previous relationship. The SOR alleged that Applicant has approximately $33,624 in delinquent or past- due debts. Applicant denied all of the SOR debts, stating some were paid, others were being paid, and others she could not find the creditors. In her answer, she attributed her financial problems to having multiple surgeries in 2009 after miscarriages. In 2010, she had another miscarriage prior to her husband leaving for Afghanistan for a year. Before he left he told her he wanted a divorce. They reconciled in late 2010. In 2011, she stated she was laid off and unemployed. In 2011 and 2012, she experienced health issues that resulted in two consecutive surgeries. In spring of 2012, she was laid off and unemployed. In January 2014, she had another surgery, and in 2014 she was laid off briefly. Applicant stated that working full time, while taking care of two children with no family support, resulted in financial problems at the time. She stated that she has been working diligently to resolve all of her debts.3 The following is the status of the debts alleged in the SOR: SOR ¶ 1.a ($606) is a lien entered in February 2010. It was paid and released in August 2010. Her credit report from July 2015 verifies the release.4 SOR ¶ 1.b ($263) was paid to the original creditor in November 2015.5 SOR ¶ 1.c ($321) was paid in June 2016. SOR ¶ 1.d ($1,475) was settled and paid. The fees and penalties were charged 2 Some exhibits had multiple pages and are marked accordingly. 3 Item 2; AE A. 4 AE C. 5 Item 5; AE B. 3 off.6 SOR ¶ 1.e ($1,180) and ¶ 1.f ($157) are being paid and are no longer past due.7 SOR ¶ 1.g was paid in full in 2014.8 Applicant repeatedly attempted to contact the creditor for the account in SOR ¶ 1.h and has been unsuccessful. Credit reports from July 2015 and May 2016 show the account was disputed and the collection account was paid.9 The account in SOR ¶ 1.i is being paid through a monthly automatic payment plan that began in June 2016.10 Applicant is making payments toward the debt in SOR 1.j.11 Applicant stated she believed the account in SOR ¶ 1.k had been settled, but learned there was still a balance owed. In November 2016, she arranged an automatic withdrawal payment plan and is making $100 payments.12 Applicant stated that she believed the debt in SOR ¶ 1.l was paid. She could not find a phone number for the creditor. It is not on her May 2016 credit report and she indicated it was not on her current credit report. She did not provide a copy of that report. Applicant disputed the amount owed to the creditor in SOR ¶ 1.m, and had difficulty obtaining a copy of the payment agreement. The document she provided shows a plan to pay $50 a month and a payment made in November 2016.13 Applicant disputes the amount alleged in SOR ¶ 1.n. She is making payments on the debt.14 In Applicant’s response to the FORM, she stated that she has paid or is making payments to resolve her delinquent debts. She stated that she does not have any new delinquent debts and her finances are under control.15 6 Item 2; AE E. 7 AE F, G. 8 Item 5; AE H. 9 Items 4, 5. 10 AE J. 11 AE I. 12 AE K. 13 AE L. 14 AE N. 15 AE A. 4 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 used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. 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 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. 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. Directive ¶ E3.1.15 states, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable security 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 that an 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 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). 5 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. AG ¶ 19 provides conditions that could raise security concerns. The following are potentially applicable: (a) inability to satisfy debts; (b) unwillingness to satisfy debts regardless of the ability to do so; and (c) a history of not meeting financial obligations. Applicant began experiencing financial difficulty in 2009 and subsequently accumulated delinquent debts. There is sufficient evidence to support the application of the above disqualifying conditions. The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. The following 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; (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, a death, divorce or separation, 6 clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances; (c) 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; and (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. Although Applicant resolved some of her delinquent debts, others remain ongoing. AG ¶ 20(a) does not apply. Applicant attributed her financial problems to health issues, numerous surgeries, and periods of unemployment. These conditions were beyond her control. For the full application of AG ¶ 20(b), Applicant must have acted responsibly under the circumstances. She paid or is paying almost all of the debts alleged in the SOR. I find she has acted responsibly under the circumstances, and AG ¶ 20(b) applies. There is no evidence that supports Applicant has participated in financial counseling. AG ¶ 20(c) does not apply. Based on the documents Applicant provided showing she has been resolving her debts, I find that there are clear indications her financial problems are under control. She has initiated a good-faith effort to repay overdue creditors or otherwise resolve her debts. AG ¶ 20(d) applies. Applicant stated that she was unable to contact the creditors in SOR ¶¶ 1.h and 1.l, and that these debts are not on her current credit report. The July 2015 and May 2016 credit reports reflect SOR ¶ 1.h was disputed and the collection account was paid. The latter credit report from May 2016 does not reflect the debt in SOR ¶ 1.l. Although I do not have a copy of her current credit report, I find her statements credible based on her efforts to resolve all of the debts alleged in the SOR. I find AG ¶ 20(e) applies. 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(d): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable 7 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 considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline F in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline, but some warrant additional comment. Applicant is 42 years old. She experienced some financial problems, but has resolved some delinquent debts and is paying others. Although her delinquent debts are not completely resolved, she understands the importance of being financial responsible. A security clearance adjudication is not a debt collection procedure. It is a procedure designed to evaluate an applicant’s judgment, reliability, and trustworthiness. See ISCR Case No. 09-02160 (App. Bd. Jun. 21, 2010). An applicant is not required, as a matter of law, to establish resolution of every debt alleged in the SOR. An applicant need only establish a plan to resolve the financial problems and take significant actions to implement the plan. There is no requirement that an applicant make payments on all delinquent debts simultaneously, nor is there a requirement that the debts alleged in the SOR be paid first. See ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008). There is also no requirement that an applicant pay every debt listed in the SOR, only that she remove concerns about her reliability and trustworthiness raised by those debts. See ISCR Case No. 14-00504 at 3 (App. Bd. August 4, 2014). Applicant provided credible sufficient evidence to show she is addressing her financial problems and resolving her delinquent debts. The record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising under Guideline F, financial considerations. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline F: FOR APPLICANT Subparagraphs 1.a-1.n: For Applicant 8 Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted. _____________________________ Carol G. Ricciardello Administrative Judge