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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
            ) ISCR Case No. 17-01755 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Aubrey M. De Angelis, Esq., Department Counsel 
For Applicant: Pro se  
 
 
______________ 
 
Decision 
______________ 
 
 
 
KATAUSKAS, Philip J., Administrative Judge: 
 
Applicant contests the Defense Department’s intent to deny his eligibility for access 
to classified information. Applicant mitigated the security concern raised by his 
problematic financial history. He did not mitigate the security concerns raised by his 
criminal conduct, and his personal conduct. Accordingly, this case is decided against 
Applicant.  
 
Statement of the Case 
 
          Applicant submitted a Questionnaire for National Security Positions (SF 86 format) 
on March 11, 2016. This document is commonly known as a security clearance 
application. On August 8, 2017, after reviewing the application and the information 
gathered during a background investigation, the Department of Defense Consolidated 
Adjudications Facility sent Applicant a statement of reasons (SOR), explaining it was 
unable to find that it was clearly consistent with the national interest to grant him eligibility 
for access to classified information.1 It detailed the factual reasons for the action under 
                                                          
1 This action was taken under Executive Order (E.O.) 10865, Safeguarding Classified Information within 
Industry (February 20, 1960), as amended, as well as Department of Defense Directive 5220.6, Defense 
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the security guidelines known as Guideline F for financial considerations, Guideline J for 
criminal conduct, and Guideline E for personal conduct. Applicant answered the SOR on 
August 31, 2017, and requested a decision based on the written record without a hearing.   
 
On November 6, 2017, Department Counsel submitted a file of relevant material  
(FORM).2 The FORM was mailed to Applicant on the same day. He was given 30 days to 
file objections and submit material to refute, extenuate, or mitigate the Government’s 
evidence. Applicant received the FORM on November 17, 2017. Applicant responded to 
the FORM on December 13 and 18, 2017, and submitted two documents, that I have 
marked as Applicant’s Exhibits (AE) A and B, and which are admitted into evidence 
without objection. The case was assigned to me on February 14, 2018.  
 
Procedural Matters 
 
  Included in the FORM were 15 items of evidence, which are marked as 
Government Exhibits (GE) 1 through 15. GE 1 through 12 are admitted into evidence 
without objection. GE 13 through 15 are reports of investigation (ROI) summarizing 
Applicant’s interviews that took place in February, September, and October 2010, in 
December 2016, and in February 2017, during the background investigation. The ROI is 
not authenticated, as required under ¶ E3.1.20 of the Directive.3 Department Counsel’s 
written brief includes a footnote advising Applicant that the summary was not 
authenticated and that failure to object may constitute a waiver of the authentication 
requirement. The footnote is prominently prefaced with a bolded, upper-case notice to 
Applicant and flagging for Applicant the importance of the footnote, which then explains 
the concepts of authentication and waiver. In a case such as this, where Applicant has 
responded to the FORM, it is fair to conclude that Applicant read the footnote, understood 
it, and chose not to object to the ROI. GE 13 through 15, therefore, are admitted into 
evidence.4   
  
 
 
                                                          
Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). In 
addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), 
effective within the Defense Department on June 8, 2017, apply here.   
 
2 The file of relevant material consists of Department Counsel’s written brief and supporting documentation, 
the latter of which are identified as evidentiary exhibits in this decision.  
 
3 See generally ISCR Case No. 12-10933 (App. Bd. Jun. 29, 2016) (In a concurring opinion, Judge Ra’anan 
notes the historical concern about reports of investigation in that they were considered by some to present 
a heightened problem in providing due process in security clearance cases. Judge Ra’anan raises a number 
of pertinent questions about using an unauthenticated ROI in a non-hearing case with a pro se applicant.). 
 
4 This is consistent with recent Appeal Board decisions. ISCR Case No. 16-03126 at 2 (Jan. 24, 2018) (ROI 
admitted where applicant’s response to the FORM failed to object to the ROI or indicate that it was 
inaccurate); ISCR Case No. 15-05047 at 4 (Nov. 8, 2017) (ROI admitted where applicant failed to object to 
the ROI in his response to the FORM).  
 
 
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Findings of Fact 
 
           Applicant is 43 years old, has a bachelor’s degree, has never married, and has a  
son, age eight. He served in the U.S. Air Force on active duty from July 1992 until August 
1995 and in the inactive Reserve from August 1995 until June 1997.5 Applicant was 
separated from the service involuntarily for unacceptable conduct and given a general 
discharge under honorable conditions.6 
 
Under Guideline F, the SOR alleged that Applicant: (1) has five delinquent debts 
totaling $13,491 (one a $10,178  state tax lien); (2) filed Chapter 13 proceedings in 2010 
and 2012, both of which were dismissed for failure to make plan payments; and (3) failed 
to timely file his state and federal income tax returns for 2011.7  
 
Applicant admitted the 2010 Chapter 13 case, with the explanation that his mother 
had recently died, leaving his ailing father living in another state. Applicant and his two 
brothers took turns caring for their father. The expenses of traveling and taking time off 
of work to care for his father drained his finances, and the lawyer he retained 
recommended a Chapter 13 to stop the foreclosure of Applicant’s home.8 
 
Applicant admitted the 2012 Chapter 13. He explained that he had been laid off 
and was unemployed for over seven months and fell behind on his mortgage payments. 
The mortgage company refused to do a loan modification. The bankruptcy filing delayed 
the foreclosure of his home until after he regained employment in the spring of 2012.9 
The SOR does not allege any delinquent mortgage deficiencies.  
 
Applicant admitted SOR ⁋ 1.c. ($862) and stated that he intended to pay it. He 
admitted SOR ⁋ 1.e ($1,421) but has disputed the amount owed with the creditor. 
Applicant admitted SOR ⁋ 1.f ($620) but disputed the amount and claims that the debt is 
a duplicate of SOR ⁋ (g) ($410), the latter of which Applicant stated is the correct amount. 
He also documented that he has been paying this debt down under a plan.10 
 
 
                                                          
5 GE 5.  
 
6 Answer, p. 18.  
 
7 SOR ⁋ 1.  
 
8 Answer ⁋ 1.a.  
 
9 Answer ⁋ 1.b. Applicant reported that he was unemployed from September 2011 until April 2012. GE 5.  
 
10 Answer ⁋⁋ 1.c, e, f, g, and pp. 10-11.  
 
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Applicant denied SOR ⁋ 1.d, the state tax lien, stating that it was caused by an 
error in the state’s tax system. Applicant provided documentation from the state 
withdrawing the lien and stating that it is not enforceable.11 
 
Applicant admitted that he failed to file his federal and state income tax returns for 
2011. He explained that his Forms W-2 and “other household tax information was lost 
during [his] moving.”12  
 
In sum, of the total debts alleged of $13,491, Applicant resolved SOR ⁋⁋ 1.d, f, and 
g. totaling $11,208.  
 
Under Guideline J, the SOR alleged 13 incidents of criminal arrests of Applicant 
from April 2008 to as recently as January 2016. The criminal activities have a wide range: 
probation violation; simple battery; criminal trespass; narcotic possession; driving on a 
suspended or revoked license; altering a license plate; contempt of court; operating an 
unregistered vehicle; reckless conduct with a child; driving under the influence; operating 
a vehicle with an expired license; tampering; and theft of public utilities.13 With 
explanations, Applicant admitted all allegations, except for the tampering and theft of 
public utilities arrests, which he denied.14 
 
In Applicant’s answer to the SOR, he included a state court dismissal order dated 
February 23, 2015. In his handwritten note on the dismissal order, Applicant stated that 
the order pertained to SOR ⁋⁋ 2.i and 2.j.15 Those allegations involved an April 2012 arrest 
for deprivation of a child and reckless conduct, and a March 2012 arrest for driving under 
the influence. The order, however, dismissed 2014 charges for possession of drug-related 
objects and possession of a controlled substance. SOR ⁋ 2.d alleged a 2014 arrest for 
possession of a narcotic and drug-related equipment. I have concluded that Applicant’s 
note referring to SOR ⁋⁋ 2.i and 2.j was an error and that the dismissal order relates to 
SOR ⁋ 2.d, and I have given it the appropriate weight.  
 
In Applicant’s response to the form, he included a December 4, 2017, email from 
a probation officer stating that Applicant had successfully completed all requirements of 
                                                          
11 Answer ⁋ 1.d; AE A.  
 
12 Answer ⁋⁋ 1. h, and i. Applicant reported that he moved his residence from one town to another town in 
the same state in November 2012. GE 5. Applicant should have filed his 2011 state and federal income 
tax returns no later than April 2012 (without any extension). The record does not show Applicant having 
moved his residence between January and April 2012.  
 
13 SOR ⁋⁋ 2.a-m.  
 
14 Answer ⁋⁋ 2.a-k. Applicant denied SOR ⁋⁋ 2.l and m. Answer ⁋⁋ 2.l and m. The Government has taken 
the position that it will not be submitting any evidence to support the two denied allegations and that it, 
therefore, has not met its burden of proof as to those allegations. Government Brief, p. 6.  
 
15 Answer, p. 16.  
 
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his probation and is no longer on probation.16 I find that this letter pertains to SOR ⁋ 2.b, 
which alleged a December 2015 arrest for simple battery with a sentence of probation 
until September 2017.   
 
         Under Guideline E, the SOR incorporated by reference SOR ⁋⁋ 2.a-k. The SOR also 
alleged that Applicant received Non-Judicial Punishment knowingly fraternizing with 
enlisted females and conduct unbecoming of an officer.17 Applicant admitted those 
allegations referring to his responses to the Guideline J allegations and noting that he 
was given a general discharge under honorable conditions.18 
 
Law and Policies 
 
 It is well-established law that no one has a right to a security clearance.19 As noted 
by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard 
indicates that security clearance determinations should err, if they must, on the side of 
denials.”20 Under Egan, Executive Order 10865, and the Directive, any doubt about 
whether an applicant should be allowed access to classified information will be resolved 
in favor of protecting national security.  
 
 A favorable clearance decision establishes eligibility of an applicant to be granted 
a security clearance for access to confidential, secret, or top-secret information.21 An 
unfavorable clearance decision (1) denies any application, (2) revokes any existing 
security clearance, and (3) prevents access to classified information at any level.22 
 
 There is no presumption in favor of granting, renewing, or continuing eligibility for 
access to classified information.23 The Government has the burden of presenting 
evidence to establish facts alleged in the SOR that have been controverted.24 An 
applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate 
                                                          
16 AE B. 
 
17 SOR ⁋⁋ 3.a-b. 
  
18 Answer ⁋⁋ 3.a-b.  
 
19 Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to 
a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a 
security clearance).  
 
20 484 U.S. at 531 
 
21 Directive, ¶ 3.2. 
 
22 Directive, ¶ 3.2. 
 
23 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). 
 
24 Directive, Enclosure 3, ¶ E3.1.14. 
 
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facts that have been admitted or proven.25 In addition, an applicant has the ultimate 
burden of persuasion to obtain a favorable clearance decision.26 
 
 In Egan, the Supreme Court stated that the burden of proof is less than a 
preponderance of evidence.27 The Appeal Board has followed the Court’s reasoning, and 
a judge’s findings of fact are reviewed under the substantial-evidence standard.28 
 
Discussion 
  
 Under Guideline F for financial considerations,29 the suitability of an applicant may 
be questioned or put into doubt when that applicant has a history of excessive 
indebtedness or financial problems or difficulties. The overall concern is: 
 
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….30 
 
 The concern is broader than the possibility that a person might knowingly 
compromise classified information to obtain money or something else of value. It 
encompasses concerns about a person’s self-control, judgment, and other important 
qualities. A person who is financially irresponsible may also be irresponsible, 
unconcerned, or negligent in handling and safeguarding classified information. 
 
 In analyzing the facts of this case, I considered the following disqualifying  
conditions: 
 
 AG ¶ 19(a): inability to satisfy debts;  
 
AG ¶ 19(c): a history of not meeting financial obligations; and 
 
AG ⁋ 19(f): failure to file . . . annual Federal, state, or local income tax returns . . . 
as required. 
 
 
                                                          
25 Directive, Enclosure 3, ¶ E3.1.15. 
 
26 Directive, Enclosure 3, ¶ E3.1.15.  
 
27 Egan, 484 U.S. at 531. 
 
28 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted).  
 
29 AG ¶¶ 18, 19, and 20 (setting forth the concern and the disqualifying and mitigating conditions). 
 
30 AG ¶ 18. 
 
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 In analyzing the facts of this case, I considered the following mitigating conditions: 
  
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(d): the individual initiated and is adhering to a good-faith effort to 
repay overdue creditors or otherwise resolve debts; and 
 
AG ¶ 20(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. 
 
   The evidence supports a conclusion that Applicant has had a problematic financial 
history. Security concerns are raised under AG ¶¶ 19(a), (c), and (f).  The next inquiry is 
whether any mitigating conditions apply.  
 
Applicant attributed his 2010 bankruptcy to the death of his mother, which 
compelled him and his brothers to care for their ailing father. Applicant incurred the 
expenses of travel to and from his father’s home. In addition, Applicant had to take time 
off of work to care for his father. This adversely affected his finances and put his home at 
risk of foreclosure. On advice of counsel, he filed for bankruptcy to protect his home.  
 
Applicant attributed his 2012 bankruptcy to having been unemployed for over 
seven months, which put him in default of his home mortgage. He filed for bankruptcy to 
protect his home from foreclosure until he could regain employment.  
 
I conclude that the death of Applicant’ mother and the resultant need for Applicant 
to help care for his father and his lengthy period of unemployment are circumstances 
largely beyond his control that caused financial problems. I also conclude that under those 
circumstances filing for bankruptcy protection to stave off foreclosure was responsible 
conduct. SOR ⁋⁋ 1.a and b are mitigated under AG ¶ 20(b).  
 
The lion’s share of Applicant’s indebtedness is the $10,178 state tax lien. Applicant 
documented that the lien was erroneously imposed and had been withdrawn. SOR ⁋ 1.d 
is mitigated under AG ¶ 20(e). 
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SOR ⁋⁋ 1.g and f are duplicates, the latter of which is being paid under a payment 
plan. Those debts are mitigated under AG ¶ 20(d).31 
 
Applicant failed to file federal and state income tax returns for 2011 due to having 
lost his tax information for that year. There is no evidence that Applicant has any tax 
obligations for that year to the federal or state government. His failure to file happened 
seven years ago and under circumstance that are unlikely to recur. SOR ⁋⁋ 1.h and i are 
mitigated under AG ¶ 20(a). 
 
Guideline J, Criminal Conduct 
 
 Applicant’s history of criminal arrests raises a criminal conduct security concern, 
which is detailed in AG ¶ 30: 
 
Criminal activity creates doubt about a person's judgment, reliability, and 
trustworthiness. By its very nature, it calls into question a person's ability or 
willingness to comply with laws, rules, and regulations. 
 
 I have considered the disqualifying conditions under AG ¶ 31, and the following 
apply: 
 
(a) a pattern of minor offenses, any one of which on its own would be 
unlikely to affect a national security eligibility decision, but which in 
combination cast doubt on the individual's judgment, reliability, or 
trustworthiness; and 
 
(b) evidence (including, but not limited to, a credible allegation, an 
admission, and matters of official record) of criminal conduct, regardless of 
whether the individual was formally charged, prosecuted, or convicted. 
 
Applicant’s admissions of his 11 arrests trigger security concerns under AG ¶¶  
31(a) and (b). The question is whether Applicant has mitigated the security concerns 
raised by his criminal conduct.  
 
The potentially mitigating conditions are set forth in AG ¶ 32 as follows:  
 
(a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances, that it is unlikely to recur and 
does not cast doubt on the individual's reliability, trustworthiness, or good 
judgment; 
 
 (b) the individual was pressured or coerced into committing the act and 
those pressures are no longer present in the person's life; 
                                                          
31 Applicant intends to pay the debt alleged in SOR ⁋ 1.c. and has disputed the amount of debt alleged in 
SOR ⁋ 1.e. The total of those two debts ($2,283) does not raise security concerns.  
 
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(c) no reliable evidence to support that the individual committed the offense; 
and 
 
(d) there is evidence of successful rehabilitation; including, but not limited 
to, the passage of time without recurrence of criminal activity, restitution, 
compliance with the terms of parole or probation, job training or higher 
education, good employment record, or constructive community 
involvement. 
 
 I have carefully reviewed the four mitigating conditions set forth in AG ¶ 32. I find 
that none of them apply. Applicant’s arrest record stretches from 2011 to 2016, just over 
two years ago, with his most recent probation ending in 2017. There is no evidence that 
he was coerced into committing the acts for which he was arrested. And there has been 
insufficient passage of time since his latest arrest to conclude that he has been 
rehabilitated. 32 
 
Guideline E, Personal Conduct 
 
 Guideline E states the personal conduct that can raise security concerns: 
 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual's reliability, trustworthiness, and ability to protect 
classified or sensitive information. Of special interest is any failure to 
cooperate or provide truthful and candid answers during national security 
investigative or adjudicative processes. The following will normally result in 
an unfavorable national security eligibility determination, security clearance 
action, or cancellation of further processing for national security eligibility. 
 
The following are potentially applicable disqualifying conditions under AG ⁋ 16(d): 
 
(1) untrustworthy or unreliable behavior to include breach of client 
confidentiality, release of proprietary information, unauthorized release of 
sensitive corporate or government protected information; 
 
(2) any disruptive . . . or other inappropriate behavior;  
 
(3) a pattern of dishonesty or rule violations. 
 
The SOR pleads by incorporation under Guideline E the allegations of criminal 
conduct under Guideline J. For the same reasoning set forth under Guideline J, I find 
that security concerns under Guideline E are raised by that conduct. That conduct was 
                                                          
32 I took into account that Applicant successfully completed his probation sentence imposed for the 
December 2015 arrest for simple battery. Because Applicant admitted the 11 arrests, AG ⁋ 32(c) cannot 
apply.  
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untrustworthy, inappropriate, and involved violations of rules, conduct contemplated by 
AG ⁋ 16(d).  
 
What remains is the allegation of SOR ⁋ 3.b that Applicant received non-judicial 
punishment for fraternizing with enlisted female service members and that he was 
discharged for unacceptable conduct. Applicant admitted those allegations. I find that 
Applicant’s conduct that led to his non-judicial punishment and discharge for 
unacceptable conduct triggers security concerns under Guideline E. I also find that none 
of the mitigating conditions under Guideline E apply.   
 
 The record raises doubts about Applicant’s reliability, trustworthiness, good 
judgment, and ability to protect classified information. In reaching this conclusion, I 
weighed the evidence as a whole and considered if the favorable evidence outweighed 
the unfavorable evidence or vice versa. I also gave due consideration to the whole-person 
concept.33 Accordingly, I conclude that Applicant failed to meet his ultimate burden of 
persuasion to show that it is clearly consistent with the national interest to grant him 
eligibility for access to classified information. 
 
     Formal Findings 
 
 As required by section E3.1.25 of Enclosure 3 of the Directive, I make the following 
formal findings on the SOR allegations: 
 
  Paragraph 1, Guideline F:    For Applicant  
 
  Subparagraphs 1.a-1.i:                   For Applicant 
 
  Paragraph 2, Guideline J:    Against Applicant 
 
  Subparagraphs 2.a-k:                      Against Applicant 
 
  Subparagraphs 2.l-m:                      For Applicant 
 
  Paragraph 3, Guideline E:     Against Applicant 
 
  Subparagraphs 3a.-b:     Against Applicant 
       
 
 
 
 
 
 
 
                                                          
33 AG ¶¶ 2(d)(1)-(9) and 2(f)(1)-(6).  
 
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Conclusion 
 
 In light of the record as a whole, it is not clearly consistent with the interests of 
national security to grant Applicant access to classified information.  
 
 
 
Philip J. Katauskas  
Administrative Judge