1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ADP Case No. 16-00846 ) Applicant for Public Trust Position ) Appearances For Government: Ross Hyams, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ CERVI, Gregg A., Administrative Judge This case involves trustworthiness concerns raised under Guideline F (Financial Considerations). Eligibility for access to sensitive information is denied.1 Statement of the Case Applicant submitted a security clearance application (SCA) on July 25, 2012. On September 26, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent her a Statement of Reasons (SOR) detailing trustworthiness concerns under Guideline F.2 1 Applicant is requesting a trustworthiness determination for access to sensitive information, also known as a “public trust” determination, to occupy an automated data processing (ADP) position. 2 The DOD CAF acted under DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. 2 Applicant answered the SOR and elected to have the case decided on the written record in lieu of a hearing. The Government’s written brief with supporting documents, known as the File of Relevant Material (FORM), was submitted by Department Counsel on December 1, 2016. A complete copy of the FORM was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on December 19, 2016. No additional evidence was submitted in response to the FORM. The Government’s exhibits included in the FORM (Items 1 to 10) are admitted into evidence. The case was assigned to me on October 1, 2017. Findings of Fact Applicant is a 44-year-old information technology support coordinator employed by a defense contractor since June 2012, and she has operated a part-time small business out of her home since 2010. She was unemployed from June 2009 to June 2010. She received an associate’s degree in 2007. She was married in 1996 and divorced in 2008, and has one adult child. The SOR alleges six delinquent debts, totaling about $5,259, and failure to timely file federal income tax returns for 2003 to 2006, and state income taxes for 2003 to 2009. In her answer to the SOR, Applicant admitted the allegations with explanations, except she was unaware of a collection account from 2009 involving a check issued with insufficient funds. All of the SOR allegations are supported by sufficient evidence submitted by the Government. Applicant stated in her response to the SOR, that she had erroneous information and was unable to file her income tax returns as required. She stated her federal taxes have been paid, and she filed state tax returns for 2007 and 2008. In regards to her delinquent debts, Applicant noted in her answer to the SOR, that she is disputing a medical debt for $1,350 (SOR ¶ 1.c), and will dispute another medical debt for $596 (SOR ¶ 1.e), but she did not indicate the basis for the dispute. She also noted that a credit card debt for $1,788 was charged off because of a financial hardship she encountered when her domestic partner lost his job. Another account for $668 was placed in collection because she was paying other bills. No documentary evidence was provided with her answer or in response to the FORM to support her assertions. Applicant noted in her answer, that she is a single mother who is paying a mortgage, car loan, utilities and other household expenses on her own. She stated that she has paid all outstanding taxes owed, and would like to consolidate her debts into a lower monthly payment. She stressed her personal integrity and her loyalty to her employer. 3 Since Applicant elected to have this case decided on the written record in lieu of a hearing, I was unable to further inquire into these allegations, or evaluate her demeanor or credibility in response to questions about the status of her debts and current finances. Law and Policies The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, effective on June 8, 2017.3 When evaluating an applicant’s suitability for a public trust position, the administrative judge must consider the disqualifying and mitigating conditions in the AG. 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 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. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion as to obtaining a favorable trustworthiness decision. A person who seeks access to sensitive 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 sensitive information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of sensitive information. 3 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous version of the AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 4 Analysis Financial Considerations The concern under this guideline 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 relevant disqualifying conditions under AG ¶ 19 include: (a) inability to satisfy debts; (b) unwillingness to satisfy debts regardless of the ability to do so; (c) a history of not meeting financial obligations; and (f) failure to file . . . annual federal, state, or local income tax returns . . . as required. Applicant’s admissions and the documentary evidence supporting the SOR allegations are sufficient to establish the disqualifying conditions. The following mitigating conditions under AG ¶ 20 are potentially relevant: (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; (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; (d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; 5 (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; and (g) the individual has made arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance with those arrangements. Applicant’s delinquent debts are recent and there is insufficient evidence to determine that they were incurred under circumstances making them unlikely to recur. Applicant failed to show efforts toward resolving her debts. This pattern shows a lack of reliability, trustworthiness, and good judgment. AG ¶ 20(a) is not applicable. Although Applicant was unemployed for a year from 2009 to 2010, she began a business in 2010 and was employed full-time with her current employer in 2012. Applicant has not carried her burden of proof to show that she has adequately addressed her delinquent debts and filed tax returns as required. She alluded in her answer to the SOR to a loss of household income as a reason for one of her debts, but she did not show evidence to support her claimed hardship, or documentary evidence that she attempted to or has addressed the tax and debt issues alleged. Applicant’s personal circumstances, including periods of unemployment and a loss of household income, were conditions beyond her control. She did not take responsible actions after these events to deal with her debts. AG ¶ 20(b) is partially applicable. There is no evidence that Applicant received financial counseling or that her current financial status is sound. The delinquent debts remain unaddressed. Applicant’s financial problems are not under control. Evidence of good-faith efforts to pay or resolve her debts is lacking. AG ¶¶ 20(c) and 20(d) do not apply. She failed to document any disputed debts. AG ¶ 20(e) does not apply. Likewise, she did not provide evidence that her delinquent tax returns were filed or that she made other arrangements with tax authorities. AG ¶ 20(g) does not apply. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s trustworthiness eligibility 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 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; 6 (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. I considered all of the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my findings of fact and comments under Guideline F in my whole-person analysis. Applicant’s delinquencies remain an ongoing concern. Although she may have taken some action to address her delinquent tax filings and some debts, she failed to provide documentary evidence of such action or a final resolution. Applicant did not mitigate the financial considerations trustworthiness concerns. Accordingly, I conclude she has not carried her burden of showing that it is clearly consistent with the national security interests of the United States to grant her eligibility to hold a sensitive position. 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 – 1.h: Against Applicant Conclusion I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant access to sensitive information. Eligibility for a public trust position is denied. _______________________ Gregg A. Cervi Administrative Judge