1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 17-01409 ) ) Applicant for Security Clearance ) Appearances For Government: Andrew Henderson, Esq., Department Counsel For Applicant: Pro se August 1, 2018 ______________ Decision ______________ CEFOLA, Richard A., Administrative Judge: Statement of the Case On May 23, 2017, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guideline F.1 The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance. Applicant answered the SOR on July 7, 2017, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on August 10, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on August 15, 2017, scheduling the hearing for September 13, 2017. The hearing was convened as scheduled. The Government offered Exhibits (GXs) 1 through 6, which 1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines, effective September 1, 2006. 2 were admitted into evidence. Applicant testified on his own behalf and called two witnesses. Applicant presented two documents, which I marked Applicant’s Exhibits (AppXs) A and B. The record was left open until November 30, 2017, for receipt of additional documentation. On November 30, 2017, AppX C was offered and admitted into evidence. DOHA received the transcript of the hearing (TR) on September 22, 2017. Findings of Fact Applicant admitted all the allegations in the SOR. (At his hearing, he admitted an amended SOR allegation ¶ 1.k., which amended the amount owed from $472.00 to $122.00.) After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is a 48-year-old employee of a defense contractor. (GX 1 at page 5.) He has been employed with the defense contractor since 2011. (GX 1 at page 11.) Applicant retired, after 20 years of active duty service with the U.S. Army, as a Staff Sergeant. (TR at page 43 line 22 to page 44 line 9, and GX 1 at pages 18~19.) His spouse of 26 years, who also handles their family finances, testified on behalf of Applicant. (TR at page 19 line 7 to page 35 line 12.) Guideline F – Financial Considerations 1.a. Applicant admits that he owes a past-due debt to Creditor A, as the result of an automobile repossession, in the amount of about $10,339. (TR at page 19 line 7 to page 23 line 3.) Applicant’s spouse averred that they would address this admitted past- due debt; but despite having more than two months to do so, he submitted no evidence that they have done anything to settle this debt. (TR at page 30 line 9 to page 31 line 8.) This allegation is found against Applicant. 1.b. and 1.c. Applicant admits that he owed two past-due debts to Creditor B in an amount totaling about $2,116. (TR at page 31 lines 8~23.) Applicant’s spouse averred that they would address these admitted past-due debts, and he submitted documentation that they were settled for $567.32. (AppX C at page 3.) These allegations are found for Applicant. 1.d. Applicant admits that he owes a past-due debt to Creditor D in the amount of about $463. (TR at page 31 line 24 to page 32 line 6.) Applicant’s spouse averred that they would address this admitted past-due debt; but despite having more than two months to do so, he submitted no evidence that they have done anything to settle this debt. This allegation is also found against Applicant. 1.e. Applicant admits that he owes a past-due debt to Creditor E in the amount of about $353. (TR at page 32 lines 8~20.) Applicant’s spouse averred that they would address this admitted past-due debt; but despite having more than two months to do so, he submitted no evidence that they have done anything to settle this debt. This allegation is found against Applicant. 3 1.f. Applicant admits that he owes delinquent state income taxes in the amount of about $32,130. (TR at page 22 line 4 to page 26 line 6.) Applicant’s spouse averred that they would address this admitted past-due tax debt, and he submitted documentation demonstrating that they have monies withheld from their paychecks to do so. (AppXs A and B.) This allegation is found for Applicant 1.g. Applicant admits that he owed a past-due debt to Creditor G in an amount totaling about $2,035. (TR at page 33 line 2~14.) Applicant’s spouse averred that they would address this admitted past-due debt, and he submitted documentation that it has been “PAID IN FULL.” (AppX C at page 2.) This allegation is found for Applicant. 1.h. and 1.j. Applicant admits that he owes two past-due medical debts to Creditor H in an amount totaling about $922. (TR at page 33 line 14 to page 34 line 14.) Applicant’s spouse averred that they would address these admitted past-due debts; but despite having more than two month to do so, he submitted no evidence that they have done anything to settle this debt. These allegations are found against Applicant. 1.i. and 1.k. Applicant admits that he owed two past-due debts to Creditor I in an amount totaling about $594. (TR at page 34 line 14 to page 35 line 12.) Applicant’s spouse averred that they would address these admitted past-due debts, and he submitted documentation that they have been “satisfied.” (AppX C at page 1.) These allegations are found for Applicant. Policies When evaluating an applicant’s national security eligibility, the administrative judge must consider the adjudicative guidelines (AG). 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 national security eligibility. 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 AG ¶ 2 describing 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 national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. 4 Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.15 states 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person who applies for access to classified information seeks to enter 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order (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 relating to the guideline 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. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage. 5 The guideline notes several conditions that could raise security concerns under AG ¶ 19. Three 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 has significant past-due indebtedness The evidence is sufficient to raise these disqualifying conditions. AG ¶ 20 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 20 including: (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; (d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; (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; and (g) the individual has made arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance with those arrangements. Applicant’s financial problems are ongoing. He has a long history of delinquencies. Although he is addressing his delinquent state income taxes; and has paid some of his admitted past-due debts, other admitted past-due debts, totaling about $12,077, remain outstanding. He has not demonstrated that future financial problems are unlikely. Mitigation under AG ¶ 20 has not been established. 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 facts and circumstances surrounding this case. I have incorporated my comments under Guideline F in my whole-person analysis. Applicant is well respected in the workplace, as testified to by his supervisor. (TR at page 37 line 19 to page 42 line 14.) However, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to 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 ¶ E3.1.25 of the Directive, are: Paragraph 1, Guideline F: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: Against Applicant Subparagraph 1.e: Against Applicant Subparagraph 1.f: For Applicant Subparagraph 1.g: For Applicant Subparagraph 1.h: Against Applicant Subparagraph 1.i: For Applicant Subparagraph 1.j: Against Applicant Subparagraph 1.k: For 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 national security eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Richard A. Cefola Administrative Judge