DATE: November 12, 2003
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SSN: ----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
JOAN CATON ANTHONY
APPEARANCES
FOR GOVERNMENT
Marc Curry, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant's financial problems are related in part to job lay-offs and periods of unemployment in the past. He demonstrated a good-faith effort to pay his debts and mitigated several debts listed on the Statement of Reasons. When Applicant completed his Security Clearance Application (SF-86), he failed to disclose his financial delinquencies of more than 180 days in the previous seven years and any current delinquencies of over 90 days. Applicant admitted the existence of the bad debts and has expressed his intent to satisfy them. He offered no credible explanation for falsifying his SF-86 by not reporting his financial delinquencies. Clearance is denied.
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue
a security clearance for Applicant. On April 30, 2003, under the applicable Executive Order (1) and Department of Defense Directive, (2) DOHA issued a Statement of Reasons (SOR), detailing the basis for its decision--security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of the Directive. Applicant answered the SOR in writing on May 22, 2003 and elected to have a hearing before an administrative judge. The case was initially assigned to Administrative Judge Matthew Malone, but due to caseload considerations, was subsequently assigned to me on June 12, 2003. A Notice of Hearing was issued on June 17, 2003 scheduling the hearing for July 8, 2003. On July 8, 2003, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The Government submitted five exhibits (Ex.) and Applicant submitted ten. The transcript was received on July 16, 2003.
At the hearing the Government moved to amend the SOR for accuracy by substituting the date February 22, 2001 for the date August 7, 2000 in allegation 2.a. under Guideline E, Personal Conduct. Applicant did not object, and the SOR was so amended.
In his answer to the SOR, Applicant denied all of the factual allegations involving Guideline F, Financial Considerations. He neither admitted nor denied the allegations involving Guideline E, Personal Conduct.
After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact:
Applicant, who is 43 years old, works as a furniture mover in the offices and laboratories of a defense contractor. He has a high school education, is married, and provides support to three children from three previous relationships. He did not list his children as relatives in response to question 9 on his SF-86. Applicant's financial problems result in part from loss of employment and business downturns. In his responses to DOHA interrogatories dated September 18, 2002, Applicant mitigated allegations 1.a. and 1.c of the SOR by producing copies of canceled checks showing that the subject debts had been paid. (Ex. 5, pages 20 and 21) At his hearing, Applicant provided a copy of a cancelled check to show that his wife paid the debt alleged as item 1.b. of the SOR. (Ex. A) While Applicant testified that he did not owe the debt alleged in item 1.d. of the SOR, he was unable to produce any written confirmation from the debtor of his lack of indebtedness. Applicant provided evidence that he had a current arrangement to pay an education loan alleged in item 1.e. of the SOR, although he was unable to provide persuasive evidence that the education loan identified at item 1.j. of the SOR had been consolidated with the loan identified at item 1.e. (Ex. 5; Tr. 42-43) In response to allegations 1.f., 1.g., and 1.i. Applicant provided evidence to show that in May 2003 child support for one of his three children was terminated. (Ex. B) Applicant testified that the support was terminated because the child had reached adult status. (Tr. 45) He acknowledged that he was in arrears on his child support payments because of his unsteady employment; he produced evidence to show that his income has been garnished to pay the support of one child in April 2003. He also testified that his unemployment pay was being garnished for child support. Applicant acknowledged that he was currently unemployed but was making efforts to pay as many his remaining debts as he could. The evidence showed that the debts alleged at items 1.a.,1.b., and 1.c. of the SOR had been paid. Applicant presented a payment plan for meeting the debts alleged at items 1.e., 1.f., 1.g., and 1.h. Applicant denied his inability to satisfy his delinquent debts, as alleged at 1.k. of the SOR. His current employment status casts doubt on his long-term capacity to meet his debts.
On February 22, 2001, Applicant executed a Security Clearance Application (SF-86) containing a question numbered 39, which reads as follows:
Your Financial Delinquencies - 90 Days
Are you currently over 90 days delinquent on any debt(s)?
In response to question 39, Applicant answered "no." Applicant also responded "no" to Question 38 on his SF-86. Question 38 reads as follows:
Your Financial Delinquencies - 180 Days
In the last 7 years, have you been over 180 days delinquent on any debt(s)?
The Government submitted as Exhibit 2 a credit report on Applicant's financial status. The credit report was dated May 30, 2001 and showed that Applicant was liable for 7 accounts that were past due for 120 days. Applicant's accounts that were past due for 120 days included a student loan dating to 1995 in the amount of $4858 and four delinquencies in child support payments totaling $6829. The child support delinquencies dated to 1980, 1993, and 1996. In his answer to the SOR, Applicant denied the existence of one of the delinquencies. He did not dispute the existence of the other three delinquencies, but did dispute the amounts owed. Applicant denied an indebtedness listed as a bad debt for a student loan in the amount of $2625, dating to 1995. At his hearing he said the bad debt had been consolidated with the delinquent student loan and he was making payments on both debts. In his signed sworn statement dated August 22, 2001, Applicant acknowledged a student loan debt in the amount of approximately $4500 and expressed his intention to arrange to begin paying the debt. In his signed sworn statement, Applicant did not offer a reason for his "no" answers to Questions 38 and 39 on the SF-86 he executed on February 22, 2001.
"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to "United States citizens . . . whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information, §3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. See Directive, Enclosure 2.
In the defense industry, the security of classified information is entrusted to civilian workers who must be counted on to safeguard classified information and material twenty-four hours a day. The Government is therefore properly concerned where available information indicates that an applicant for a security clearance may be involved in conduct that demonstrates poor judgment, untrustworthiness, lack of candor, or unreliability. These concerns include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.
An evaluation of whether the applicant meets the security guidelines includes consideration of a number of variables known as the whole person concept. In evaluating the relevance of an individual's conduct, the administrative judge must consider the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; (9) the likelihood for continuation or recurrence. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Exec. Or. 10865 § 2. See Exec. Or. 12968 § 3.1(b).
Adjudicative Guidelines F, Financial Considerations (Attachment 6 to Enclosure 2), and E, Personal Conduct (Attachment 5 to Enclosure 2), are most pertinent to this case. The security concern identified under Guideline F is that a person who is financially overextended can be pressured to engage in illegal acts to generate funds. Conditions that could raise a security concern in this case and which may be disqualifying include:
E2.A6.1.2.1. A history of not meeting financial obligations;
E2.A6.1.2.3: Inability or unwillingness to satisfy debts;
Relevant conditions that could mitigate security concerns about the Applicant's financial problems include:
E2.A6.1.3.1. The behavior was not recent;
E2.A6.1.3.2. It was an isolated incident;
E2.A6.1.3.3. The conditions that resulted in the behavior were largely beyond the person's control (e.g. loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation);
E2.A6.1.3.6: The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.
The relevant provisions of Guideline E which apply to the facts of this case are:
E2.A5.1.1. The Concern: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.
A condition that could raise a security concern and may be disqualifying is:
E2.A5.1.2.2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.
In this case, the following conditions could mitigate security concerns :
E2.A5.1.3.1. The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability.
E2.A5.1.3.2. The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily.
An applicant's admission of the information in specific allegations relieves the Government of having to prove those allegations. If specific allegations and/or information are denied or otherwise controverted by the applicant, the Government has the initial burden of proving those controverted facts alleged in the Statement of Reasons. If the Government meets its burden (either by an applicant's admissions or by other evidence) and establishes conduct that creates security concerns under the Directive, the burden of persuasion then shifts to the applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of conduct that falls within specific criteria in the Directive, it is nevertheless clearly consistent with the interests of national security to grant or continue a security clearance for the applicant.
A person seeking access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence. Where the facts proven by the Government or admitted by the applicant raise doubts about the applicant's judgment, reliability, or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. In Egan, 484 U.S. at 531, the Supreme Court concludes that "[t]he clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." Accordingly, doubts against an applicant's security worthiness are to be resolved against the applicant.
Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, including those described above, I conclude the following with respect to each allegation set forth in the SOR:
The Government's concern under Guideline F, Financial Considerations, is that individuals who are financially overextended and unable or unwilling to pay their just debts may try to generate funds by engaging in illegal acts. Applicant has a history of not meeting his financial obligations, and this financial history suggests an inability or unwillingness to satisfy his debts, conditions which raise security concerns under subparagraphs E2.A6.1.2.1 and E2.A6.1.2.3 of Guideline F. In response to interrogatories presented to him in September 2002 and at his hearing, Applicant provided persuasive evidence to how that he has taken charge of his financial life and is making a good faith effort to repay overdue creditors and to resolve his debts. Applicant demonstrated that he had paid some of his outstanding debts in full and had instituted regular payment plans to pay off other debts. He was able to show that the debts attributed to him in allegations 1.a., 1.b., and 1.c. of the SOR had been paid in full, and he was carrying out plans to pay the debts identified in allegations 1.e., 1.g., 1.h, and 1.i. of the SOR, thus providing evidence in mitigation of the allegations, pursuant to mitigating condition E2.A6.1.3.6 of Guideline F. The Government provided no evidence to rebut Applicant's denial of the child support debt alleged in subparagraph 1.f. of the SOR. Applicant, however, was unable to put forward persuasive evidence that the debt alleged in subparagraph 1.d. of the SOR was only his wife's and not also his, nor was he able to demonstrate that the student loan debt alleged at subparagraph 1.j. had been consolidated into the debt alleged at subparagraph 1.e.
Applicant's work history demonstrated that some of the conditions that caused his financial difficulties were beyond his control. His record shows that he was often gainfully employed but lost jobs because of layoffs caused by business downturns, thus invoking mitigating condition E2.A6.1.3.3. However, Applicant is currently unemployed, and his financial problems are still with him as immediate concerns. Thus, it is not clear whether mitigating conditions E2.A.6.1.3.1 and E2.A6.1.3.2 are applicable.
Applicant supplied two financial statements of income and expenses, one dated August 22, 2001 and one dated October 12, 2002. These statements are inconclusive and fail to give a complete picture of Applicant's income and expenses. The August 2001 statement lists only the Applicant's income and expenses; and the October 2002 statement lists only Applicant's wife's income and expenses. Allegation 1.k. of the SOR relies on these incomplete financial statements to conclude that Applicant was unable to pay the debts alleged at subparagraphs 1.a., 1.b., 1.c., 1.d.,1.e., 1.f., 1.g., 1.h., 1.i., and 1.j. and that he had no money left over after fixed monthly expenses to pay his debts. Applicant submitted persuasive evidence to show that he had paid several debts and reduced his overall indebtedness. I find the conclusions alleged in subparagraph 1.k of the SOR to be unsupported by the evidence as a whole.
Under Guideline F, Financial Considerations, allegations in subparagraphs 1.a., 1.b., 1.c., 1.e., 1.f., 1.g., 1.h., 1.i., and 1.k. of the SOR are concluded for the Applicant, and allegations in subparagraphs 1.d. and 1.j. of the SOR are concluded against the Applicant.
With respect to Guideline E, Personal Conduct, the Government has established its case. In subparagraph 2.a. of the SOR the Government alleges that, in executing his response to questions 38 and 39 on the SF-86, Applicant deliberately failed to disclose his financial delinquencies, thus raising a security concern under subparagraph E2.A8.1.2.2 of Guideline E. Applicant provides no credible explanation for why he did not disclose his delinquent debts in his responses to Questions 38 and 39. In his sworn statement, dated August 22, 2001, he acknowledged his overdue education loan and stated that he did not make payments on the loan when he was unemployed. He expressed an intention to contact the lender and resume payments at some unspecified date. He also acknowledged the debt alleged at 1.c. of the SOR and stated that he would make a scheduled payment on the debt the following month, September 2001. (3)
Applicant completed the certification at the end of the SF-86 and attested, by his signature, that his responses to all questions on the form were true, complete, and correct to the best of his knowledge and belief and that he understood that a knowing and willful false statement made in response to any of the questions was punishable under section 1001 of Title18, United States Code.
Two mitigating conditions under Guideline E might be applicable to the instant case. The security concern raised by Applicant's disqualifying conduct could be mitigated if the falsification was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability or if it was an isolated incident, was not recent, and if the Applicant subsequently provided the correct information voluntarily. ¶¶ E.2 A5.1.3.1 and E2.A5.1.3.3. While Applicant supplied some information on his financial delinquencies when questioned by a special agent of the Defense Investigative Service, the subject falsifications on Applicant's SF-86 were pertinent to a determination of judgment, trustworthiness, or reliability. They were recent and not isolated incidents. Accordingly, allegations in subparagraph 2.a. of the SOR are concluded against the Applicant.
In my evaluation of the record, I have carefully considered each piece of evidence in the context of the totality of evidence and under all of the Directive guidelines that were generally applicable or might be applicable under the facts of the case. Under the whole person concept, I conclude that Applicant has not successfully overcome the Government's case opposing his request for a DoD security clearance.
Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25 of Enclosure 3 of the Directive are:
Paragraph 1, Financial Considerations (Guideline F): AGAINST THE APPLICANT
Subparagraph 1.a.: For the Applicant
Subparagraph 1.b.: For the Applicant
Subparagraph 1.c.: For the Applicant
Subparagraph 1.d.: Against the Applicant
Subparagraph 1.e.: For the Applicant
Subparagraph 1.f.: For the Applicant
Subparagraph 1.g.: For the Applicant
Subparagraph 1.h.: For the Applicant
Subparagraph 1.i.: For the Applicant
Subparagraph 1.j.: Against the Applicant
Subparagraph 1.k.: For the Applicant
Paragraph 2, Personal Conduct (Guideline E): AGAINST THE APPLICANT
Subparagraph 2.a.: Against the Applicant
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 a security clearance for the Applicant. Clearance is denied.
1. Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified. Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified. Applicant provided evidence to show that this debt was settled in the amount of $148.61 by check dated December 12, 2002.