1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [REDACTED] ) ISCR Case No. 16-03685 ) Applicant for Security Clearance ) Appearances For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MARINE, Gina L., Administrative Judge: This case involves security concerns raised under Guideline F (Financial Considerations). Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on August 19, 2015. On January 13, 2017, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline F. The DOD CAF acted 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) implemented by the DOD on September 1, 2006 (2006 AG). Applicant answered the SOR on February 7, 2017, and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on February 24, 2017. On February 27, 2017, a complete copy of the file of relevant material (FORM) was sent to Applicant, including documents identified as Items 1 through 5. He was given an opportunity to submit a documentary response setting forth objections, rebuttal, extenuation, mitigation, or explanation to the Government’s evidence. He received the FORM on March 5, 2017, and did not 2 respond. Item 1 contains the pleadings in the case. Items 2 through 5 are admitted into evidence. The case was assigned to me on October 2, 2017. On June 8, 2017, the DOD implemented new AG (2017 AG).1 Accordingly, I have applied the 2017 AG.2 However, I have also considered the 2006 AG, because they were in effect on the date the FORM was completed. I conclude that my decision would have been the same under either version. Findings of Fact3 Applicant, age 35, divorced his wife of 12 years in 2015. They initially separated in 2010. They have three children, ages 15, 11, and 8. Since receiving his high school diploma in 2000, he has taken courses at a community college and technical university. He honorably served in the U.S. Navy from 2003 through 2014. He has been employed full time for federal contractors since May 2014. He was granted a secret clearance in 2004. The SOR alleged 17 delinquent debts, including a $74,926 delinquent mortgage account, and other debts totaling $28,323. Applicant admitted seven debts totaling $24,082 and the delinquent mortgage account. He denied the debts alleged in SOR ¶¶ 1.d (collection account/$1,946), 1.g (collection account/$496), 1.h (collection account/$381), 1.j (collection account/$219), 1.l (charged-off account/amount not alleged), 1.m (collection account/$828), 1.n (collection account/$152), and 1.o (collection account/$219). The credit reports establish each of the denied debts.4 Applicant attributed his delinquent debts to the period between 2011 and 2014 when, following the separation from his wife, he had trouble managing the extra costs associated with having his children residing with him full time. This required him to transfer to shore duty, which resulted in a reduction in pay. In addition, his mother became ill and he sent her money whenever he was able. As a result, he fell behind in 1 On December 10, 2016, the Security Executive Agent issued Directive 4 (SEAD-4), establishing a “single, common adjudicative criteria for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.” (SEAD-4 ¶ B, Purpose). The SEAD-4 became effective on June 8, 2017 (SEAD-4 ¶ F, Effective Date). The National Security Adjudicative Guidelines (AG), which are found at Appendix A to SEAD-4, apply to determine eligibility for initial or continued access to classified national security information. (SEAD-4 ¶ C, Applicability). 2 ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DOD policy and standards). 3 Unless otherwise indicated by citation to another part of the record, I extracted these facts from Applicant’s SOR answer (Item 1), his SCA (Item 2), and the summary of his May 2016 subject interview (Item 3). Because Applicant did not respond to the FORM and affirmatively waive any objection to Item 3, I will consider only those facts in Item 3 that are not adverse to Applicant, unless they are contained in other evidence or based upon his admissions in the SOR answer. 4 GE 4 and 5. 3 his mortgage payment and other bills. He unsuccessfully attempted to resolve his mortgage delinquency via a short sale.5 During his 2016 subject interview, Applicant acknowledged that he had “let his financial problems sit on his [credit bureau report (CBR)] without trying to fix most of them.” He promised that he would obtain a copy of his CBR and “start taking care of” his delinquent debts. At that time, he was paying $900 per month in child support (after he and his ex-wife agreed that their children would resume living with her full time). He was also paying $100 per month for a timeshare. He has never had any financial counseling.6 In the FORM, Department Counsel specifically highlighted that Applicant had not provided written documentation to establish mitigation and advised of the opportunity that he had to do so in his response to the FORM. Policies “[N]o one has a ‘right’ to a security clearance.”7 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.”8 The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”9 Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible 5 GE 3 at 2. 6 GE 3 at 8. 7 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 8 Egan at 527. 9 EO 10865 § 2. 4 extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”10 Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR.11 “Substantial evidence” is “more than a scintilla but less than a preponderance.”12 The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability.13 Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.14 An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government.15 An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.”16 “[S]ecurity clearance determinations should err, if they must, on the side of denials.”17 Analysis Guideline F (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 10 EO 10865 § 7. 11 See Egan, 484 U.S. at 531. 12 See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 13 See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). 14 Directive ¶ E3.1.15. 15 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 16 ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 17 Egan, 484 U.S. at 531; See also AG ¶ 2(b). 5 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 . . . . This concern is broader than the possibility that a person might knowingly compromise classified information to raise money. It encompasses concerns about a person’s self-control, judgment, and other qualities essential to protecting classified information. A person who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding classified information.18 Applicant’s admissions, corroborated by his credit reports, establish two disqualifying conditions under this guideline: AG ¶ 19(a) (inability to satisfy debt) and AG ¶ 19(c) (a history of not meeting financial obligations). The security concerns raised in the SOR have not been mitigated by any of the following applicable factors: AG ¶ 20(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; AG ¶ 20(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; AG ¶ 20(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 AG ¶ 20(d): the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts. AG ¶ 20(a) is not established. Applicant’s numerous delinquent debts remain unresolved. 18 See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012). 6 AG ¶ 20(b) is not established. While his separation, reduction in pay, and mother’s illness were circumstances largely beyond his control, he has not acted responsibly to address the resulting debts. AG ¶ 20(c) and 20(d) are not established. Applicant did not receive financial counseling. Because he did not respond to the FORM, the record is silent as to what, if any, progress he made in resolving his delinquent debts. The record is also silent as to his current ability to repay delinquent debts and the reasons that they have persisted after he promised to address them back in 2016. I cannot conclude that his financial problems are under control at this time. Whole-Person Concept Under AG ¶ 2(c), the ultimate determination of whether the granting or continuing of national security eligibility is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person. An 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. I have incorporated my comments under Guideline F in my whole-person analysis, and I have considered the factors in AG ¶ 2(d). After weighing the disqualifying and mitigating conditions under Guideline F, and evaluating all the evidence in the context of the whole person, I conclude that Applicant has not mitigated the security concerns raised by his failure to pay delinquent debts. Accordingly, Applicant has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information. 7 Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT Subparagraphs 1.a – 1.p: Against Applicant Conclusion I conclude that it is not clearly consistent with the national interest to continue Applicant’s eligibility for access to classified information. Clearance is denied. Gina L. Marine Administrative Judge