1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-03886 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MURPHY, Braden M., Administrative Judge: Applicant did not provide sufficient evidence to mitigate the security concerns under Guideline F, financial considerations. Applicant’s eligibility for access to classified information is denied. Statement of the Case On January 31, 2017, 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 (Exec. Or.) 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 effective within the DoD on September 1, 2006. Applicant answered the SOR on February 27, 2017 and requested a hearing. The case was assigned to me on May 12, 2017. On June 19, 2017, a notice of hearing 2 was issued scheduling the hearing for August 1, 2017. The hearing convened as scheduled. At the hearing, Department Counsel submitted Government’s Exhibits (GE) 1 through 6, which were admitted without objection. Applicant testified but submitted no exhibits. I held the record open until August 22, 2017, to afford Applicant the opportunity to submit additional documentation. He timely submitted two documents, which were marked as Applicant’s Exhibits (AE) A and B, and admitted without objection. DOHA received the transcript on August 9, 2017. On December 10, 2016, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, National Security Adjudicative Guidelines (AG). The new AGs became effective on June 8, 2017, for all adjudicative decisions on or after that date.1 Findings of Fact Applicant admitted SOR ¶¶ 1.b and 1.h. He denied SOR ¶¶ 1.a, 1.c through 1.g, and 1.i. He said that SOR ¶¶ 1.j and 1.k had been paid, answers I considered to be denials. His admissions are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact. Applicant is 34 years old. He has been married since 2010. He has six children, ages 7, 9, 12, 13, 15, and 16. A seventh child died in infancy. His wife is the mother of his two youngest children, as well as his oldest child, who was born before they married. Applicant’s middle children (ages 12, 13, 15), are the product of a different relationship. They are also the subject of the alleged child support debt (SOR ¶ 1.b). (Tr. 26-28, 48; 78; GE 1) Applicant earned his general education certification in 2004. He has since attended some trade school. He works as a marine painter at a naval shipyard. He has had the same employer since June 2011, and has worked in his current position since February 2017. He has never held a clearance. (Tr. 30-32; GE 1) Applicant works full time, earning $24.76 an hour, and he typically earns about $4,000 to $5,000 a month, including overtime. His wife works at a bank, earning about $1,800 a month. After monthly expenses, Applicant testified that he has $400 to $500 left over each month. He also has about $23,000 in a 401k account at work.2 (Tr. 73-76) 1 I provided Applicant a copy of the new AGs at the start of the hearing. (Tr. 8-9) 2 These figures are unverified. At $24.76 an hour, Applicant would earn about $990 in a 40-hour week (just under $4,000 a month). 3 Applicant submitted a security clearance application (SCA) in August 2015. He disclosed an outstanding judgment from a prior rental unit (SOR ¶ 1.a) and an overdue cellphone bill. (SOR ¶ 1.h) (GE 1). Applicant’s largest debt concerns past-due child support. SOR ¶ 1.b alleges three separate accounts, totaling a combined $19,211. Two of the figures ($7,825 and $4,922) are the balances due for two child support accounts on Applicant’s December 2016 credit report (GE 4). Another figure ($6,464) is the balance due on an account on his November 2016 credit report. (GE 5) Applicant claimed that he has only one child support account (though it relates to three of his children). When these children were born, he and their mother were living together. He testified that when the relationship ended, the children initially lived with him (in about 2008-2009). At some point, they went to live with their mother, and she filed for child support in family court. The court ordered that Applicant’s child support be calculated back to a certain date, resulting in a retroactive delinquency. (Tr. 39-54) In his background interview, Applicant indicated that this was because he could not verify to the court that he was caring for the children during the period they were living with him. (GE 2 at 4) Applicant testified that he initially owed about $13,900 in past-due child support, a figure essentially confirmed by his September 2015 credit report. (Tr. 44, 49; GE 6) However, that credit report also reflects that the child support account became delinquent in December 2011. (GE 6) Applicant testified that he contested the retroactive child support order in family court, but he was nonetheless ordered to resume payments in September 2016. (Tr. 44-45; AE A) Applicant was ordered to pay $1,032 a month. He began making weekly payments of about $238 in October 2016. (AE A)3 Applicant testified that of that amount, $44 a week goes towards his arrears. (Tr. 42; GE 4) Applicant denied at his hearing that he owed anything. However, his child support “summary case account statement” as of August 2017 reflected an arrears balance of $8,256. (Tr. 53; AE A) SOR ¶¶ 1.a ($2,901) and 1.e ($990) are judgments issued against Applicant in 2008. He denied both debts in his answer, but listed one (¶ 1.a) on his SCA. Applicant testified that both accounts relate to unpaid rent for apartments he and his family vacated early due to unlivable conditions. Applicant claimed to have negotiated a $1,000 settlement with the real estate company last year for SOR ¶ 1.a, but he provided no supporting documentation. (Tr. 32-39; GE 1, GE 3) He claimed to have settled SOR ¶ 1.e in 2009, shortly after the judgment, but he provided no supporting documentation. (Tr. 58-61; GE 6) SOR ¶¶ 1.c ($822) and 1.d ($912) are consumer accounts in collection. Applicant denied both debts. He testified that he did not recognize them and did not acquire credit 3 AE A also reflects nominal payments ($8.77 a week) between June and October 2016. 4 cards from either bank. Both accounts are listed on his credit reports. In the summary of his September 2016 background interview, Applicant acknowledged one of them (¶ 1.c) as a credit card he took out to help his sister pay expenses. (GE 2 at 5) Applicant testified that he has engaged a credit monitoring service to challenge invalid accounts on his credit reports for $99 a month. He provided no documentation to validate his claims that he is not responsible for the accounts. (Tr. 54-58, 63; GE 4. GE 5) Applicant denied SOR ¶ 1.f (a $60 medical debt). He indicated that he would pay it if it was valid, but acknowledged he had not contacted the creditor in an attempt to resolve the debt. (Tr. 61-63; GE 6) SOR ¶¶ 1.g ($75) and 1.k ($137) are medical debts. Applicant did not recognize ¶ 1.g and said he had paid ¶ 1.k. Both are listed on his September 2015 credit report. He provided no corroborating documentation. (Tr. 64-65; GE 6) SOR ¶¶ 1.h ($205) and 1.i ($400) are past-due phone bills. Applicant admitted ¶ 1.h (and disclosed it on his SCA), but denied ¶ 1.i. which he said he did not recognize. (Tr. 66; GE 6) SOR ¶ 1.j ($54) is a toll account that has been paid and resolved. (Tr. 67; GE 6; AE B) Policies It is well established that no one has a right to a security clearance. As the Supreme Court noted in Department of the Navy v. Egan, “the clearly consistent standard indicates that security determinations should err, if they must, on the side of denials.”5 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 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(a), 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 5 Department of Navy v. Egan, 484 U.S. 518, 531 (1988). 5 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 not drawn 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, 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 to obtain 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Analysis Guideline F, Financial Considerations The security concern 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. . . . The financial considerations guideline sets forth several conditions that could raise security concerns under AG ¶ 19. The following are potentially applicable: (a) inability to satisfy debts; and (c) a history of not meeting financial obligations. Applicant’s credit reports reflect that he has incurred numerous unresolved delinquent debts over the last several years. “It is well-settled that adverse information from a credit report can normally meet the substantial evidence standard and the government’s obligations under ¶ E3.1.14 [of the Directive] for pertinent allegations.”6 6 ISCR Case No. 11-00046 at 2 (App. Bd. Feb. 10, 2012) 6 Notwithstanding Applicant’s denials in answer to most of the SOR allegations, the Government has met its burden, and AG ¶¶19 (a) and 19(c) apply. Conditions that could mitigate financial considerations security concerns are provided under AG ¶ 20. The following 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, 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. Given Applicant’s answers, mitigation analysis of this case best begins with discussion of AG ¶ 20(e). Applicant provided no documents to corroborate his assertions that he does not owe on any of the SOR debts, except for SOR ¶ 1.j. This includes small medical debts, two judgments following broken leases, two cellphone accounts, and two consumer debts. It is Applicant’s burden to provide documented proof to substantiate the basis of the dispute or provide evidence of actions to resolve the issue. Applicant did not do so. AG ¶ 20(e) therefore does not apply to any debt other than SOR ¶ 1.j. Applicant did not provide sufficient documentation to show that any of the other SOR debts have been, or are being, paid or otherwise resolved. In particular, Applicant did not provide sufficient evidence that he undertook good-faith efforts to resolve SOR ¶ 1.b, his child support debt. There is no record evidence that he paid child support payments between 2011 and September 2016, by which time his child support debt was significantly delinquent. Applicant has been making weekly payments toward that debt since October 2016, but his recent payments are insufficient evidence of good-faith effort on his part, given the fact that the debt was delinquent for a significant period. Applicant also provided no documents to corroborate his efforts to pay or otherwise resolve any other SOR debts under AG ¶ 20(d). 7 Applicant did not establish that any of his debts occurred due to a circumstance beyond his control. He also did not establish that he acted reasonably under the circumstances. AG ¶ 20(b) does not apply. Although several of the debts are old (such as the two judgments), Applicant’s outstanding financial delinquencies are nonetheless a “continuing course of conduct.”7 They are ongoing and unresolved. Applicant did not provide sufficient evidence to establish that the behavior which led to his financial problems happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not continue to cast doubt on his current judgment, trustworthiness and reliability. AG ¶ 20(a) does not apply. 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 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. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility for access to classified information. 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: 7 ISCR Case No. 15-06532 at 3 (App. Bd. Feb. 16, 2017). 8 Paragraph 1, Guideline F: AGAINST APPLICANT Subparagraphs 1.a-1.i: Against Applicant Subparagraph 1.j: For Applicant Subparagraph 1.k: Against 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 access to classified information. Eligibility for access to classified information is denied. _____________________________ Braden M. Murphy Administrative Judge