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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
 [Redacted] )  ADP Case No. 17-01264 
 ) 
Applicant for Public Trust Position ) 
 
 
Appearances 
 
For Government: Erin P. Thompson, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves trustworthiness concerns raised under Guideline F (Financial 
Considerations). Eligibility for assignment to a public trust position is denied. 
 
Statement of the Case 
 
Applicant submitted an Electronic Questionnaires for Investigations Processing (e-
QIP) on February 10, 2016, seeking eligibility for a public trust position. On May 15, 2017, 
the Department of Defense (DOD) sent him a Statement of Reasons (SOR), citing 
trustworthiness concerns under Guideline F. DOD acted under DOD Directive 5220.6, 
Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as 
amended (Directive); DOD Regulation 5200.2-R, Personnel Security Program (January 
1987), as amended (Regulation);1 and the adjudicative guidelines (AG) implemented by 
DOD on September 1, 2006. Security Executive Agent Directive 4 (SEAD 4) was issued 
on December 10, 2016, revising the 2006 adjudicative guidelines for all adjudicative 
                                                          
1 On April 3, 2017, DOD Manual 5200.02, Procedures for the DoD Personnel Security Program (PSP), 
(Manual) was published. It cancelled and incorporated the Regulation, but it did not include the provisions 
for ADP cases. ADP cases continue to be adjudicated in accordance with the Deputy Under Secretary of 
Defense’s Memorandum for the Director, Defense Office of Hearings and Appeals, dated November 19, 
2004. 
 
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decisions issued on or after June 8, 2017. The changes resulting from issuance of SEAD 
4 did not affect my decision in this case. 
 
 Applicant answered the SOR on June 19, 2017, and requested a hearing before 
an administrative judge. Department Counsel was ready to proceed on August 30, 2017, 
and the case was assigned to me on October 23, 2017. On November 13, 2017, the 
Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was 
scheduled for December 7, 2017. I convened the hearing as scheduled. Government 
Exhibits (GX) 1 through 3 were admitted in evidence without objection. Applicant testified 
and presented the testimony of one witness, but he did not submit any documentary 
evidence. I kept the record open until January 12, 2018, to enable him to submit 
documentary evidence. He submitted Applicant’s Exhibits (AX) A through E, which were 
admitted without objection. DOHA received the transcript (Tr.) on December 20, 2017. 
 
Request for Continuance 
 
 Applicant requested that his hearing be continued until his attorney could be 
present. When I opened the hearing, no attorney had entered an appearance for 
Applicant. He stated that he had been paying a law firm $800 per month for about three 
years to resolve his debts, and that the firm had advised him to seek a postponement to 
obtain more documentation. At my direction, Applicant and Department Counsel 
contacted Applicant’s law firm, and a member of the firm advised Applicant that they are 
a debt-resolution law firm, that they do not appear at DOHA hearings, and they did not 
intend to appear in this case. Applicant testified that the law firm suggested that he obtain 
a military lawyer to represent him.2 He testified that he also had a list of civilian lawyers 
but that he had not contacted any of them. I denied Applicant’s request for a continuance. 
I noted on the record that Applicant had received the SOR in May 2017, responded to the 
SOR in June 2017, and was notified of the hearing date in mid-November 2017, and was 
still hunting for a lawyer to represent him on the day of the hearing. (Tr. 6-13.) 
 
Findings of Fact 
 
 In Applicant’s answer to the SOR, he admitted all the allegations. His admissions 
are incorporated in my findings of fact. 
 
 Applicant is a 61-year-old aircraft sheet metal mechanic employed by defense 
contractors since June 2010. He served on active duty in the U.S. Air Force from 
December 1969 to December 1973 and was honorably discharged. He was a federal 
civilian employee until 2009, when he retired. He was unemployed until he was hired for 
his current position. (Tr. 35.) 
 
 Applicant married in April 1978 and divorced in March 1993. He married his current 
spouse in August 1996. He has two adult children, one from each marriage. His daughter, 
the younger child, is a college student. His older child is self-supporting. (Tr. 34.) 
                                                          
2 Applicant is not entitled to representation by military counsel. Legal assistance from military lawyers is 
limited to active duty and retired military personnel and their family members, and it usually does not extend 
to appearances in non-military courts or administrative tribunals. 
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 The SOR alleges 12 delinquent debts totaling about $65,000. All the debts are 
reflected in credit reports from February 2016 and March 2017. (GX 2; GX 3.) 
 
 Applicant testified that his financial problems began after a base closure in 1996, 
requiring him to find a job at another location. His wife was employed and they had a new 
baby, and so they lived apart and incurred the expenses of maintaining two households. 
They used credit cards for expenses, not realizing that the spending was becoming out 
of control. In mid-2011, he hired a law firm to consolidate and resolve his debts, and he 
paid the firm $853 per month for three years. The firm handled nine debts, of which six 
are alleged in the SOR. The firm’s status report reflects that the debts alleged in SOR ¶¶ 
1.e and 1.k are barred by the statute of limitations. Four debts not alleged in the SOR are 
listed as settled. (AX B at 2.) The debts alleged in SOR ¶¶ 1.b and 1.d are for a delinquent 
credit card, and they appear to be included in the unsatisfied judgment in SOR ¶ 1.j. The 
law firm informed Applicant that they were unable to resolve the unsatisfied judgment. 
(AX A.) In January 2018, the firm refunded $7,159 that was remaining in his escrow 
account. (AX C, D, and E.) 
 
Applicant recently hired a credit-repair firm to challenge incorrect information on 
his credit reports. He did not submit any evidence of actions taken by the credit-repair 
firm. (Tr. 29-32.) Neither of the firms he hired provided any financial counseling. (Tr. 58.) 
 
 Applicant provided additional evidence regarding the status of the following debts 
alleged in the SOR:  
 
SOR ¶ 1.a: mortgage loan for a time-share property, past due for $1,737 and 
in foreclosure with a balance of $7,383. Applicant testified that his wife persuaded him 
to purchase the time-share property and agreed to pay half of the expenses from her 
earnings, but she reneged on her promise. His debt-consolidation law firm did not handle 
this debt, and he has not taken any action to resolve it. (Tr. 36-38.) He testified that he 
received a settlement offer from this creditor about two years ago, but that he did not 
respond to it because he was busy and forgot about it. (Tr. 65-66.)  
 
SOR ¶¶ 1.c, 1.f, and 1.h: collection accounts for $12,395; $1,241; and $269. 
Applicant was unable to provide any information about the debt in SOR ¶ 1.c, except that 
his credit-repair firm was investigating it. (Tr. 41.) He testified that the debts in SOR ¶¶ 1.f 
and 1.h were resolved, but he provided no documentation to support his testimony. (Tr. 
44-46.);  
 
SOR ¶¶ 1.g, 1.i, and 1.l: medical debts for $658; $129, and $232. Applicant’s law 
firm did not handle these debts. He testified that they were not resolved, but that he 
intended to pay them. (Tr. 45-47.) He testified that he had not resolved them by the time 
of the hearing because he has been busy and forgot about them. (Tr. 49.) 
 
 Applicant testified that his annual salary from his current job is about $50,000 or 
$60,000, which amounts to net pay of about $1,800 per pay period, and his civil service 
annuity is about $2,800 per month after taxes. His wife is employed and earns about 
$25,000 per year, making telephone calls for a debt collector. (Tr. 50-52.) He estimated 
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that his family’s net monthly remainder is about $400. (Tr. 57.) He prepared a personal 
financial statement when he first hired the debt-consolidation firm, but he has not updated 
it. (Tr. 60.) 
 
 Applicant’s younger brother, who is also his pastor and an employee of a defense 
contractor, testified that Applicant is honest, reliable, diligent, hardworking, and 
dependable. He testified that Applicant is very devoted to his family, and that his wife was 
responsible for many of Applicant’s delinquent debts. (Tr. 24-28.) 
  
Policies 
 
The Under Secretary of Defense’s Memorandum of November 19, 2004, treats 
ADP positions as sensitive positions, and it entitles applicants for ADP positions to the 
procedural protections in the Directive before any final unfavorable access determination 
may be made. The standard set out in the Manual and the adjudicative guidelines for 
assignment to sensitive duties is that the person’s loyalty, reliability, and trustworthiness 
are such that assigning the person to sensitive duties is clearly consistent with the 
interests of national security. Manual ¶ 7.1a(2); AG ¶ 2.b.   
 
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. Decisions include, 
by necessity, consideration of the possible risk the applicant may deliberately or 
inadvertently fail to safeguard sensitive information.  
 
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 an evaluation of the 
whole person. The administrative judge’s overarching adjudicative goal is a fair, impartial 
and commonsense decision. An administrative judge must consider all available, reliable 
information about the person, past and present, favorable and unfavorable.  
 
The protection of the national security is the paramount consideration. Under AG 
¶ 2(b), “[a]ny doubt concerning personnel being considered for access to [sensitive] 
information will be resolved in favor of national security.” The Government must present 
substantial evidence to establish controverted facts alleged in the SOR. Directive ¶ 
E3.1.14. Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005). An applicant has the ultimate burden of 
demonstrating that it is clearly consistent with national security to grant or continue 
eligibility for access to sensitive information.  
 
  
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Analysis 
 
Guideline F, Financial Considerations 
 
The trustworthiness 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. . . . 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 sensitive information to raise money. It encompasses concerns about a 
person’s self-control, judgment, and other qualities essential to protecting sensitive 
information. A person who is financially irresponsible may also be irresponsible, 
unconcerned, or negligent in handling and safeguarding sensitive information. See ISCR 
Case No. 11-05365 at 3 (App. Bd. May 1, 2012). 
 
 The evidence indicates that the delinquent debts alleged in SOR ¶¶ 1.b and 1.d 
are included in the judgment alleged in SOR ¶ 1.j. When the same conduct is alleged 
more than once in the SOR under the same guideline, the duplicative allegations should 
be resolved in Applicant=s favor. See ISCR Case No. 03-04704 at 3 (App. Bd. Sep. 21, 
2005) (same debt alleged twice). Accordingly, I have resolved SOR ¶¶ 1.b and 1.d for 
Applicant.  
 
 Applicant’s admissions and the documentary evidence submitted at the hearing 
establish the following disqualifying conditions: AG ¶ 19(a) (“inability to satisfy debts”); 
AG ¶ 19(b) (“unwillingness to satisfy debts regardless of the ability to do so”); and AG ¶ 
19(c) (“a history of not meeting financial obligations”). The following mitigating conditions 
are potentially applicable: 
 
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 
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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. 
 
 None of the mitigating conditions are established. Applicant’s delinquent debts are 
numerous, recent, and were not incurred under circumstances making them unlikely to 
recur. He provided no evidence of conditions beyond his control. He provided evidence 
that collection of two debts alleged in the SOR was barred by the statute of limitations, 
but reliance on a statute of limitations does not constitute a good-faith effort to resolve a 
debt. See ISCR Case No. 11-08274 (App. Bd. May 2, 2013). He testified that he had hired 
a credit-repair agency to challenge some of the debts reflecting in his credit reports, but 
he provided no evidence of a basis for challenging them and no evidence of any action 
to challenge them. He has not received financial counseling, and there are no “clear 
indications” that his financial problems are under control. 
 
Whole-Person Concept 
 
 Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a 
sensitive position must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole-person concept. In applying the whole-
person concept, an administrative judge must evaluate an applicant’s eligibility for a 
sensitive position by considering the totality of the applicant’s conduct and all relevant 
circumstances and applying the adjudicative factors in AG ¶ 2(d).3  
 
 I have incorporated my comments under Guideline F in my whole-person analysis 
and applied the adjudicative 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 Applicant has not mitigated the trustworthiness concerns 
raised by his delinquent debts.  
 
Formal Findings 
 
 Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT 
 
  Subparagraph 1.a:     Against Applicant 
 
  Subparagraph 1.b:     For Applicant 
 
  Subparagraph 1.c:     Against Applicant 
                                                          
3 The factors are: (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.  
 
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  Subparagraph 1.d:     For Applicant 
 
  Subparagraphs 1.e-1.l:    Against Applicant 
 
Conclusion 
 
 I conclude that it is not clearly consistent with the interests of national security to 
grant Applicant eligibility for a public trust position. Eligibility for a public trust position is 
denied. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge