1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01237 ) Applicant for Security Clearance ) Appearances For Government: Pamela Benson, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ LOUGHRAN, Edward W., Administrative Judge: Applicant did not mitigate the financial considerations security concerns. Eligibility for access to classified information is denied. Statement of the Case On July 30, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline F, financial considerations. Applicant responded to the SOR on October 12, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written case was submitted on November 16, 2016. A complete copy of the file of relevant material (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 2, 2016. As of January 30, 2017, she had not responded. The case was assigned to me on October 1, 2017. The Government exhibits included in the FORM are admitted in evidence. 2 Findings of Fact Applicant is a 33-year-old employee of a defense contractor. She attended college for a period without earning a degree. The most recent information available indicates that she has never married, and she has a 14-year-old child.1 Applicant was charged with felony hit-and-run after a 2010 accident. She hired an attorney and pleaded guilty to reckless driving. She was ordered to pay about $1,500 in restitution and a fine of about $700. She was unemployed from May 2012 through November 2013.2 The SOR alleges two unpaid judgments totaling $1,771 and 12 delinquent debts. However, SOR ¶¶ 1.b and 1.f are duplicate accounts representing the same debt. The non-duplicate allegations include $20,586 due on the balance of an auto loan after repossession; three miscellaneous delinquent debts totaling $1,315; and seven unpaid parking citations totaling $1,135. Applicant denied owing most of the debts alleged in the SOR. The debts are all listed on at least one credit report.3 Applicant admitted owing the $161 debt to a telecommunications company. She wrote that she “will pay this off very soon.” She admitted living at the apartment complex that obtained a $1,318 judgment against her in April 2012. She did not believe that she owed anything when she moved out of the apartment. She stated during her background interview in January 2016 that she signed a written agreement to make $219 monthly payments, but she never followed up with payments.4 Applicant admitted having a car loan with the creditor alleged in SOR ¶ 1.a. She listed the $11,486 defaulted car loan on her February 2015 Questionnaire for National Security Positions (SF 86). She wrote that she set up a payment plan. She told the background investigator that she returned the car as a voluntary repossession after the car was in an accident. She stated that she then made $150 monthly payments until the amount owed was satisfied. She did not provide any documentation establishing payments. The March 2015 credit report lists the balance of the charged-off loan as $11,486. The March 2016 credit report lists the high credit as $11,486 and the balance as $20,586.5 1 Items 2, 5. 2 Items 2, 5. The SOR did not allege Applicant’s conviction for reckless driving. Any matter that was not alleged in the SOR will not be used for disqualification purposes. It may be considered for its effect on Applicant’s finances, when assessing her credibility, in the application of mitigating conditions, and during the whole-person analysis. 3 Items 1-5. 4 Items 1, 3-5. 5 Items 1-5. 3 Applicant told the background investigator that her ex-boyfriend received the seven parking tickets on her car without her knowledge. She stated that she was attempting to get the ex-boyfriend to pay the tickets. She stated that she would pay the tickets if he refused to pay them. She wrote in her response to the SOR that she is willing to pay the tickets if there is any problem when she goes to get service from the DMV.6 There is no evidence that Applicant received financial counseling. She did not provide any documentation when she responded to the SOR.7 Because she did not respond to the FORM, the current state of Applicant’s finances is unknown. Policies This case is adjudicated 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), which became effective on June 8, 2017. 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 to be 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, administrative judges apply the guidelines 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.” 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 the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable security decision. 6 Items 1, 5. 7 Items 1, 5. 4 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. Section 7 of EO 10865 provides that adverse 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). 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. 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. The guideline notes several conditions that could raise security concerns under AG ¶ 19. The following are potentially applicable in this case: (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 had delinquent debts that she was unable or unwilling to pay. The evidence is sufficient to raise the above disqualifying conditions. SOR ¶¶ 1.b and 1.f are duplicate accounts representing the same debt. When the same conduct is alleged twice in the SOR under the same guideline, one of the 5 duplicative allegations should be resolved in Applicant’s favor. See ISCR Case No. 03- 04704 at 3 (App. Bd. Sep. 21, 2005). SOR ¶ 1.b is concluded for Applicant. Conditions that could mitigate the 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; (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; 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 was unemployed from May 2012 through November 2013. It is unclear how much the reckless driving conviction affected her finances. She denied owing most of the debts alleged in the SOR, but she did not provide any documented proof of payments or to substantiate the basis of a dispute to the legitimacy of any debts. Her seven unpaid parking citations are particularly concerning. There is insufficient evidence for a determination that Applicant’s financial problems will be resolved within a reasonable period. I am unable to find that she acted responsibly under the circumstances or that she made a good-faith effort to pay her debts. Her financial issues are recent and ongoing. They continue to cast doubt on her current reliability, trustworthiness, and good judgment. AG ¶¶ 20(a), 20(c), 20(d), and 20(e) are not applicable. AG ¶ 20(b) is partially applicable. I find that financial considerations concerns remain despite the presence of some mitigation. 6 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 about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the financial considerations security concerns. 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 Subparagraph 1.a: Against Applicant Subparagraph 1.b: For Applicant Subparagraphs 1.c-1.n: Against Applicant 7 Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Edward W. Loughran Administrative Judge