DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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        )
------------------------------------                 )       ADP Case No. 17-00955
                           )                                                          
                                                          )
Applicant for Public Trust Position )
Appearances
For Government: Andrew Henderson, Esq., Department Counsel
For Applicant: Pro se
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 Decision
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WESLEY, Roger C., Administrative Judge:
Based upon a review of the pleadings, exhibits, and testimony. I conclude that
Applicant did not mitigate trust concerns regarding her finances. Eligibility for holding a
public trust position is denied.   
 
History of the Case
On May 1, 2017, the Department of Defense (DOD) Consolidated Adjudication
Facility (CAF) issued a Statement of Reasons (SOR) detailing reasons why DOD
adjudicators could not make the preliminary affirmative determination of whether to
grant eligibility for a public trust position, and recommended referral to an administrative
judge to determine whether eligibility to hold a public trust position should be granted,
continued, denied, or revoked. 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 for Determining Eligibility for Access to Classified Information (December 29,
2005) (AGs).
Effective June 8, 2017, by Directive 4 of the Security Executive Agent Directive
(SEAD 4), dated December 10, 2016, National Security Adjudicative Guidelines for all
covered individuals who require initial or continued eligibility for access to classified
information or eligibility to hold a sensitive position were established to supercede all
previously issued national security adjudicative criteria or guidelines. Procedures for
administrative due process for contractor personnel continue to be governed by DOD
Directive 5220.6, subject to the updated substantive changes in the AGs, effective June
8, 2017. Application of the AGs that were in effect as of the issuance of the SOR would
not change the decision in this case.
Applicant responded to the SOR on January 5, 2017, and requested a hearing.
This case was assigned to me on August 8, 2017. The case was scheduled for hearing
on September 26, 2017. A hearing was held on the scheduled date for the purpose of
considering whether it would be clearly consistent with the national interest to grant,
continue, deny, or revoke Applicant’s application for eligibility to hold a public trust
position. 
At the hearing, the Government’s case consisted of six exhibits (GEs 1-6);
Applicant relied on one witness (herself) and no exhibits. The transcript was received
on October 4, 2017.  
Procedural Issues
Before the close of the hearing, Applicant requested the record be kept open to
permit her the opportunity to supplement the record with documented discharge of her
Chapter 7 bankruptcy petition and provide explanations of the status of the unsecured
claims she listed in her bankruptcy petition. For good cause shown, Applicant was
granted 14 days to supplement the record. Applicant did not supplement the record.
Summary of Pleadings
 Under Guideline F, Applicant allegedly (a) incurred four adverse judgments
exceeding $14,000 and (b) accumulated an additional nine delinquent debts exceeding
$5,000. Allegedly, these debts remain outstanding.
In her response to the SOR, Applicant admitted each of the alleged debts with
an explanation. She claimed she has petitioned for Chapter 7 bankruptcy relief and is
awaiting receipt of her discharge.
Findings of Fact
Applicant is a 32-year-old military service representative employed by a
TRICARE health provider who seeks eligibility to hold a public trust position. The
allegations covered in the SOR and admitted by Applicant are incorporated and
adopted as relevant and material findings. Additional findings follow.
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Background
Applicant has never married and has three children (ages 19, 18, and 11),
including one in the Navy. (GEs 1-2; Tr. 19-20) She has attended college classes
between January 2016 and the present but has not obtained a degree or diploma. She
continues to take college classes and has student loans to finance her classes. (GEs 1-
2; Tr. 33) Applicant has never served in the military. (GEs 1-2) 
Applicant has worked for her current employer since July 2016. (GEs 1-2) She
reported unemployment between February 2016 and July 2016. While unemployed,
she supported herself with unemployment benefits. Between January and February
2016, she worked as a tax preparer for a tax firm and held jobs in the sales field for
different employers between June 2008 and October 2014. (GEs 1-2) She is a product
of a foster home system of the state of her current employment and moved to her
current state at the age of 13 while pregnant with her first son. (Tr. 19) 
Finances
Between 2011 and 2016, Applicant accumulated a number of delinquent debts.
Four of the delinquent debts were taken to judgment by creditors ¶¶ 1.g (for $1,173 in
2013); 1.h (for $4,351 in 2014); 1.i (for $3,627 in 2015); and 1.j (for $5,269 in 2016)
Applicant’s remaining debts consist of delinquent consumer accounts exceeding
$6,000. (GEs 2-6) 
Records confirm that in March 2017, Applicant petitioned for Chapter 7
bankruptcy relief. (GE 6) In her petition, she certified to completion of her required on-
line financial counseling. (GE 6) Applicant scheduled secured claims of $15,988 and
unsecured claims totaling $56,991. (GE 6; Tr. 29, 36) To date, she has not received her
discharge. All of her listed SOR debts are included in her Chapter 7 bankruptcy petition.
(GE 6; Tr. 37-38) 
While not fully certain, Applicant believes that not all of the unsecured claims
included in her bankruptcy (exclusive of her SOR debts)  are delinquent. (GE 6; Tr. 40-
41) She offered to seek clarification from her attorney on the status of the unsecured
claims included in her Chapter 7 bankruptcy petition. (Tr. 41-42)
Afforded an opportunity to provide up-dates of her efforts to resolve her SOR
debts with a bankruptcy discharge, or by other means, and clarification of unsecured
claims included in her bankruptcy petition, Applicant failed to do so. Without more
documented information from Applicant about the status of her bankruptcy or other
measures to resolve her debts without the aid of a bankruptcy discharge, her listed SOR
debts cannot be credited with resolving her debts. 
In her Chapter 7 petition, Applicant listed current annual income of $28,741 and
nets $900 bi-weekly after taxes. (GE 6) She currently resides with her godmother. (Tr.
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34) Her reported monthly expenses consist of rent to her godmother ($560); car
payment ($400); and split utility bills with her godmother to cover internet service and
utilities ($200 is Applicant’s share); car insurance ($300); and split bills with her
godmother to cover food and clothing for herself and her children. (Tr. 35). She
estimated she is able to save about $100 a month. (Tr. 35)  School loans that she has
are currently deferred. (GEs 3-5; Tr. 33)
Policies
The new AGs in SEAD 4 for use in contractor cases covered by the process
provided by DOD 5220.6 list guidelines to be used by administrative judges in the
decision-making process covering DOHA cases. These guidelines take into account
factors that could create a potential conflict of interest for the individual applicant, as well
as considerations that could affect the individual’s reliability, trustworthiness, and ability to
protect classified [sensitive] information. 
The guidelines include conditions that could raise a trustworthiness concern [public
trust position] and may be disqualifying” (disqualifying conditions), if any, and many of the
conditions that could mitigate [trustworthiness concerns.
The AGs must be considered before deciding whether or not eligibility to hold a
public trust position should be granted, continued, or denied. The guidelines do not
require administrative judges to place exclusive reliance on the enumerated disqualifying
and mitigating conditions in the guidelines in arriving at a decision. Each of the guidelines
is to be evaluated in the context of the whole person in accordance with AG ¶ 2(a). 
In addition to the relevant AGs, administrative judges must take into account the
pertinent considerations for assessing extenuation and mitigation set forth in AG ¶ 2(a) of
the AGs, which are intended to assist the judges in reaching a fair and impartial
commonsense decision based upon a careful consideration of the pertinent guidelines
within the context of the whole person. The adjudicative process is designed to examine a
sufficient period of an applicant’s life to enable predictive judgments to be made about
whether the applicant is an acceptable public trust risk. 
When evaluating an applicant’s conduct, the relevant AGs are to be considered
together with whole-person factors. The following AG ¶ 2(d) factors are to be considered
along with the guidelines: (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 chances; (7) the motivation for the
conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the
likelihood of continuation or recurrence.
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Viewing the issues raised and evidence as a whole, the following individual
guideline is pertinent in this case:
Financial Considerations
The Concern: 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. . . An individual who is
financially overextended is at greater risk of having to engage in illegal or
otherwise questionable acts to generate funds. . .   AG ¶ 18.
Burden of Proof
By virtue of the principles and policies framed by the AGs, a decision to grant
or continue an applicant's eligibility to hold a public trust position may be made only
upon a threshold finding that to do so is clearly consistent with the national interest.
Because the Directive requires administrative judges to make a commonsense
appraisal of the evidence accumulated in the record, the ultimate determination of an
applicant's eligibility for a public trust position depends, in large part, on the relevance
and materiality of that evidence. See United States, v. Gaudin, 515 U.S. 506, 509-511
(1995).  As with all adversarial proceedings, the judge may draw only those inferences
which have a reasonable and logical basis from the evidence of record. Conversely,
the judge cannot draw factual inferences that are grounded on speculation or
conjecture.
The Government's initial burden is twofold: (1) it must prove by substantial
evidence any controverted facts alleged in the SOR, and (2) it must demonstrate that
the facts proven have a material bearing to the applicant's eligibility to obtain or
maintain public trust position eligibility. The required materiality showing, however,
does not require the Government to affirmatively demonstrate that the applicant has
actually mishandled or abused privacy information before it can deny or revoke
eligibility to hold a public trust position. Rather, the judge must consider and weigh the
cognizable risks that an applicant may deliberately or inadvertently fail to protect
privacy information.
Once the Government meets its initial burden of proof of establishing admitted
or controverted facts, the evidentiary burden shifts to the applicant for the purpose of
establishing his or her trustworthiness through evidence of refutation, extenuation, or
mitigation. Based on the requirement of Exec. Or. 10865 that all [trustworthiness]
determinations be clearly consistent with the national interest, the applicant has the
ultimate burden of demonstrating his or her trust eligibility. “[T]rustworthiness]
determinations should err, if they must, on the side of denials.” See Department of the
Navy v. Egan, 484 U.S. 518, 531 (1988). 
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Analysis  
Trustworthiness concerns are raised over Applicant’s history of financial
difficulties marked by four outstanding judgments exceeding $14,000 and additional
delinquent debts exceeding $5,000. Her efforts to fully discharge her delinquent debts
through chapter 7 bankruptcy protection remain pending and incomplete.
Holding a public trust position involves the exercise of important fiducial
responsibilities, among which is the expectancy of consistent trust and candor in
protecting and guarding personally identifiable information (PII). DOD Manual
5200.02, which incorporated and canceled DOD Regulation 5200.2-R, covers both
critical-sensitive and non-critical sensitive national security positions for civilian
personnel. See 5200.02, ¶ 4.1a(3)(c)3.
Definitions for critical-sensitive and non-critical sensitive positions provided in
5200.02, ¶ 4.1a (3)(c) contain descriptions similar to those used to define ADP l and II 
positions under DOD Regulation 5200.2-R.  (32 C.F.R. § 154.13 and Part 154, App. J)
ADP positions are broken down as follows in 32 C.F.R. § 154.13 and Part 154, App.
J): ADP l (critical-sensitive positions covering the direction, design, and planning of
computer systems) and ADP II (non-critical-sensitive positions covering the design,
operation, and maintenance of computer systems).  Considered together, the ADP I
and II positions covered in DOD Regulation 5200.2-R refine and explain the same
critical-sensitive and non-critical-sensitive positions covered in DOD Manual 5200.02,
¶ 4.1a (3)(c) and are reconcilable as included positions in 5200.02.  
By virtue of the implied retention of ADP definitions in DOD Manual 5200.02,
ADP cases continue to be covered by the process afforded by DOD 5220.6. For
contractor cases covered by DOD 5220.6, the guiding charter for fair process
proceedings initiated under DOD 5220.6 continues to be Exec. Or.10865. 
Financial Concerns
Applicant’s incurred judgments and accumulated delinquent debts warrant the
application of three of the disqualifying conditions (DC) of the AGs: DC ¶ 19(a),
“inability to satisfy debts,” DC ¶ 19(b), “unwillingness to satisfy debts regardless of the
ability to do so,” and DC ¶ 19(c), “a history of not meeting financial obligations.”
 Applicant’s pleading admissions with respect to her incurred judgments and
accumulated delinquent debts negate the need for any independent proof (see
McCormick on Evidence, § 262 (6th ed. 2006)). Each of Applicant’s filing lapses and
incurred tax liens are fully documented in her response, credit reports, and her
interrogatory responses. See ISCR Case 03-01059 at 3 (App. Bd. Sep. 24, 2004). 
Financial stability in a person cleared to protect privacy information is required
precisely to inspire trust and confidence in the holder of a non-critical sensitive 
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position. While the principal concern of a non-critical sensitive position holder’s
demonstrated financial difficulties is vulnerability to coercion and influence, judgment
and trust concerns are implicit in cases involving debt delinquencies.  
Extenuating circumstances associated with her listed debts are limited. She did
experience unemployment for a number of months in 2016 that may have contributed
to some of her more recent debt delinquencies. Her incurred judgments, however,
were recorded in years 2013 through 2016, and encompass financial issues
attributable to other problems not accounted for.
Considering the available testimonial and documented evidence, extenuating
circumstances in this record account for few identified debt problems. Partially 
available to Applicant is mitigating condition (MC) ¶ 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.” 
Applicant’s failure to update the status of her Chapter 7 bankruptcy, or otherwise
demonstrate her addressing of her outstanding judgments and other delinquent
accounts, preclude her from satisfying the acting responsibly under the circumstances
prong of MC ¶ 20(b). See ISCR Case No. 05-11366 at 4 n.9 (App. Bd. Jan. 12, 2007)
(citing ISCR Case No. 99-0462 at 4 (App. Bd. Nov. 29, 2005). In the same vein, MC ¶
20(d), “the individual initiated and is adhering to a  good-faith effort to repay overdue
creditors or otherwise resolve debts,” is not available to her either. 
By certifying to completing her required on-line financial counseling in her
pending bankruptcy petition, Applicant may take limited advantage of MC ¶ 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.” At this point
in time, only the first prong of MC ¶ 20(c)  is applicable to Applicant’s situation.
In evaluating Guideline F cases, the Appeal Board has stressed the importance
of a “meaningful track record” that includes evidence of actual debt reduction through
voluntary payment of debts. ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008)
(internal citations omitted) Applicant’s incurred judgments and accumulated delinquent
debts have not to date been resolved, either through a documented bankruptcy
discharge or by other means and remain a security concern. 
Whole-person Assessment
Whole-person assessment is unfavorable to Applicant. She has shown some 
progress in addressing her debts through initiated bankruptcy proceedings but has yet
to provide probative evidence of a discharge or resolution of her debt delinquencies by
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other means. Evidence of her performance standing at work, character references, and
contributions to her community are not available either to assess her overall
trustworthiness, reliability, and good judgment. 
Overall, public trust eligibility assessment of Applicant based on available 
documentation and her testimony precludes her from establishing judgment and
reliability levels sufficient to overcome trust concerns associated with her accumulation
of delinquent debts over a multi-year span.
Taking into account all of the documented facts and circumstances surrounding
Applicant’s accumulation of adverse judgments and other delinquent accounts and
insufficient probative efforts to resolve her debts, conclusions are warranted that her
finances are insufficiently stabilized at this time to grant her eligibility to hold a public
trust position. Unfavorable conclusions are warranted with respect to the allegations
covered by subparagraphs 1.a through 1.m of the SOR. Eligibility to hold a public trust
position under the facts and circumstances is not fully consistent with the national
interest.
Formal Findings
In reviewing the allegations of the SOR and ensuing conclusions reached in the
context of the findings of fact, conclusions, conditions, and the factors listed above, I
make the following formal findings:
GUIDELINE F (FINANCIAL CONSIDERATIONS): AGAINST APPLICANT
   
Subparagraphs 1.a-1.m:                 Against Applicant            
   
Conclusions
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue Applicant’s eligibility to
hold a public trust position.  Eligibility to hold a public trust position is denied.
                                          
Roger C. Wesley
Administrative Judge 
                                        
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