DATE: November 14, 2002

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SSN: ----------------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

APPEARANCES

FOR GOVERNMENT

Henry Lazzaro, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant has a history of excessive indebtedness, including a Chapter 7 bankruptcy in 1995. His petitions for Chapter 13 in 1996, and again in 1998, were both dismissed for failing to make the trustee payments. Neither his financial problems nor his intentional falsifications on two separate security clearance applications concerning his arrest and financial history have not been mitigated. Clearance is denied.

STATEMENT OF THE CASE

On February 14, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as amended) issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

The Applicant responded to the SOR in writing on February 28, 2002, in which he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) to the Applicant on May 15, 2002. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on July 22, 2002, and he submitted no reply.

The case was assigned to the undersigned for resolution on September 23, 2002.

The Applicant is 55 years old. He is employed as a Pipe Fitter by a defense contractor and is applying for a security clearance in connection with his employment.

The Government opposes the Applicant's request for a continued security clearance, on the basis of allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR:

Paragraph 1 (Guideline F - Financial Considerations) The Government alleges that the Applicant is ineligible for clearance because he is financially overextended and at risk to engage in illegal acts to generate funds.

The Applicant met his wife while working in another country. They were married in June 1994 and moved to the United States to live in September 1994. His wife, who came from a wealthy family, was accustomed to buying the things she wanted regardless of their cost. It was also during this time that the Applicant began experiencing a downturn in the construction market, and was not earning enough money to pay the bills. In January 1995, he was forced to file Chapter 7 bankruptcy. (See, Item 8).

The Applicant continued to have difficulty finding steady employment. It was not long before he once again fell behind on his bills. To make things worse, the Applicant's sister came to live with them, and the Applicant had the extra burden of financially supporting her too. Again, he was unable to pay the bills and in August 1996, he filed for bankruptcy again. This time he filed a Chapter 13 bankruptcy petition. The arrangement with the bankruptcy trustee required the Applicant to pay $306.00 a month for five years to satisfy his creditors. The Applicant "totaled" a vehicle, which was the bulk of the debt, and did not see the point in continuing to pay the bankruptcy trustee under the plan. In February 1997, the Applicant decided that he no longer wanted the trustee to pay off his debts, that he could pay them off himself, so he stopped making payments to the trustee. His Chapter 13 petition for bankruptcy was dismissed on July 3 1997. (See, Item 9).

In June 1998, the Applicant filed for Chapter 13 bankruptcy again. He again failed to make timely payments to the bankruptcy trustee and the petition was dismissed on August 28, 1998. (See, Item 10).

The following 30 debts were originally set forth in the Applicant's Chapter 13 petition that was dismissed by the court because the Applicant failed to make the required payments under the plan. These debts have not been discharged by the court nor paid by the Applicant. (See, Items 15 and 17). They are still owing. He states that his attorney told him that he does not have to pay any of the unsecured debts listed in his Chapter 13. After contacting some of his creditors, he also learned that many of his debts have been written off by the creditors. At any rate, the Applicant indicates that he has no intention of paying any of the debts, and does not believe that he is legally obligated to do so.

Subparagraph 1(d) The Applicant is indebted to a bank in the amount of approximately $15,406.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(e) The Applicant is indebted to a department store in the amount of approximately $8,930.00 for a delinquent furniture account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(f) The Applicant is indebted to a bank in the amount of approximately $5,140.00 for a delinquent car loan account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1g) The Applicant is indebted to a bank in the amount of approximately $1,692.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(h) The Applicant is indebted to a creditor in the amount of approximately $128.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(i) The Applicant is indebted to a creditor in the amount of approximately $4,832.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(j) The Applicant is indebted to a bank in the amount of approximately $1,704.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(k) The Applicant is indebted to a creditor in the amount of approximately $360.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(l) The Applicant is indebted to a creditor in the amount of approximately $1,800.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3, 5 and 10).

Subparagraph 1(m) The Applicant is indebted to a dental service in the amount of approximately $28.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(n) The Applicant is indebted to a telephone company in the amount of approximately $4,716.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(o) The Applicant is indebted to a dentist in the amount of approximately $262.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(p) The Applicant is indebted to a creditor in the amount of approximately $262.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(q) The Applicant is indebted to a creditor in the amount of approximately $154.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(r) The Applicant is indebted to a medical center in the amount of approximately $368.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(s) The Applicant is indebted to a creditor in the amount of approximately $300.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. The Applicant claims that the debt has been paid off, but has provided no documentary evidence to support this. (See, Items 3 and 5).

Subparagraph 1(t) The Applicant is indebted to a tire company in the amount of approximately $ 476.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. The Applicant claims that the debt has been paid off, but has provided no documentary evidence to support this. (See, Items 3 and 5).

Subparagraph 1(u) The Applicant is indebted to a truck rental company in the amount of approximately $ 208.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(v) The Applicant is indebted to a physician in the amount of approximately $28.00 for a delinquent medical service account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(w) The Applicant is indebted to a cable company in the amount of approximately $104.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. The Applicant claims that the debt has been paid off, but has provided no documentary evidence to support this. (See, Item 10).

Subparagraph 1(x) The Applicant is indebted to a creditor in the amount of approximately $462.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(y) The Applicant is indebted to creditor in the amount of approximately $1,675.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(z) The Applicant is indebted to a telephone company in the amount of approximately $657.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(aa) The Applicant is indebted to a physician in the amount of approximately $459.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(bb) The Applicant is indebted to a creditor in the amount of approximately $141.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. The Applicant claims that the debt has been paid off, but has provided no documentary evidence to support this. (See, Item 11).

Subparagraph 1(cc) The Applicant is indebted to a county in the amount of approximately $41.00 for an unpaid parking ticket. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. The Applicant claims that the debt has been paid off, but has provided no documentary evidence to support this. (See, Items 11, 16 and 17).

Subparagraph 1(dd) The Applicant is indebted to a gas company in the amount of approximately $172.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. The Applicant claims that the debt has been paid off, but has provided no documentary evidence to support this. (See, Items 11, 16 and 17).

Subparagraph 1(ee) The Applicant is indebted to a telephone company in the amount of approximately $164.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(ff) The Applicant is indebted to a bank in the amount of approximately $1,618.38 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. This debt remains owing. (See, Items 3 and 5).

Subparagraph 1(gg) The Applicant is indebted to a creditor in the amount of approximately $1,500.00 for a delinquent account. This debt was initially listed on his most recent Chapter 13 petition, but his petition was dismissed when the Applicant could not afford to make the trustee payments. The Applicant claims that the debt has been paid off, but has provided no documentary evidence to support this. (See, Items 3 and 5).

The Applicant states that he is current with all of his other financial obligations.

Paragraph 2 (Guideline E - Personal Conduct). The Government alleges that the Applicant is ineligible for clearance because he intentionally falsified material aspects of his personal background during the clearance screening process.

The Applicant completed a Questionnaire for National Security Positions (Standard Form 86), dated January 8, 1996. In response to question 23(d), which asked, "Have you ever been charged with or convicted of any offenses related to alcohol or drugs?" the Applicant answered "YES" and listed his arrest in arch 1990 and an arrest for Driving While Intoxicated in March 1992. He failed to disclose his arrest in January 1986, for Driving While Intoxicated. (See, Item 6 Question 23(d)).

The same questionnaire, in question 23 (f), asked, "In the last seven years, have you been arrested for, charged with, or convicted of any offenses(s) not listed in response to a,b,c, d, or e above? " The Applicant answered "NO" to this question. This was a false response. The Applicant failed to list his arrest in August 1995 for Assault IV-Domestic Violence, an arrest in July 1996 for Assault IV- Domestic Violence and an arrest in November 1996 for Assault IV-Domestic Violence. (See, Item 6, Question 23(f)).

The Applicant completed another Questionnaire for National Security Positions (Standard Form 86), dated March 28, 1999. In response to question 23(d), which asked, "Have you ever been charged with or convicted of any offenses related to alcohol or drugs?" the Applicant answered "YES" and listed his arrest in March 1990, and an arrest for Driving While Intoxicated in March 1992. He failed to disclose his arrest in January 1993, for Driving While Intoxicated and his arrest in January 1986 for Driving While Intoxicated. (See, Item 7, Question 23(d)).

The same questionnaire, in question 23 (f), asked, "In the last seven years, have you been arrested for, charged with, or convicted of any offenses(s) not listed in response to a, b, c, d, or e above? " The Applicant answered "YES" to this question and listed his arrest for Domestic Violence in 1997. The Applicant failed to list his arrest in August 1995 for Assault IV-Domestic Violence, his arrest in July 1996 for Assault IV- Domestic Violence. (See, Item 7, Question 23(f)).

The same questionnaire, in question 28(b), asked, "Are you currently over 90 days delinquent on any debts? The Applicant answered "YES" to this question and listed one debts to a creditor for a medical bill. He failed to list that his petition for Chapter 13 bankruptcy had been dismissed in August 1998, after he failed to make timely payments to the bankruptcy trustee and that his debts listed in that petition are still outstanding. (See, Item 7, Question 28(b)).

The Applicant states that the information he failed to reveal concerning his arrest and financial history did not seem important enough to worry about at the time he completed the application. He states that he was not intentionally trying to hide or conceal any information from the government on this application. (See, Items 15, 16 and 17). I find that the Applicant knew or should have known to reveal his entire arrest and financial history and that he intentionally concealed this information from the Government.

Paragraph 3 (Criterion J - Criminal Conduct). The Government alleges that the Applicant is ineligible for clearance because he engaged in criminal conduct and violated a Federal criminal statute.

The Applicant's deliberate and intentional falsifications on his security clearance applications of January 8, 1996 and March 28, 1999, as set forth above, were violations of 18 United States Code, Section 1001, a felony.

Enclosure 2 of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case:

Conditions that could raise a security concern:

1. A history of not meeting financial obligations;

3. Inability or unwillingness to satisfy debts.

Condition that could mitigate security concerns include:

None.

Guideline E (Personal Conduct)

Condition that could raise a security concern:

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 statute, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

Conditions that could mitigate security concerns:

None.

Conditions that could raise a security concern:

1. Any criminal conduct, regardless of whether the person was formally charged;

2. a single serious crime or multiple lesser offenses.

Conditions that could mitigate security concern:

None.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances

b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination." The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in instances of financial irresponsibility and dishonesty which demonstrates poor judgment or unreliability.

It is the Government's responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant's conduct and the continued holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or outweigh the Government's case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him a security clearance.

In this case the Government has met its initial burden of proving that the Applicant was financially irresponsible (Guideline F); that he intentionally falsified material facts on two separate security clearance applications (Guideline E), and that by doing so he violated 18 United Stated Code Section 1001 (Guideline J). This evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility.

Considering all of the evidence, the Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case.

With respect to his finances, over the past eight years, the Applicant has experienced some sick leave without pay, a lay-off and extended periods of difficulty finding steady employment. For most of 1998, he was unemployed, and had to live off of his savings and unemployment benefits. Unfortunately, he has continued to incur debt, some of which could have been avoidable. In 1995, the Applicant filed for Chapter 7 bankruptcy and discharged his indebtedness. He was at that time, debt free. Just one year later, in 1996, he was again in serious financial trouble and forced to file for bankruptcy. Unable to make the required payments to the trustee under the Chapter 13 plan, the petition was dismissed. Two years later, he filed for Chapter 13 again and the petition was again dismissed for failing to timely pay the bankruptcy trustee. Since then, the Applicant has been unable to pay his debts, and remains in a position where he poses a potentially serious risk to the national security. Although he indicates that a few of the debts have been paid, he provides no documentary evidence to support this. All of the debts that were listed in the SOR are still outstanding. Accordingly, I find against the Applicant under Guideline F (Financial Considerations).

It is unclear from the record why the Applicant did not reveal his complete arrest and financial history in response to questions on two of his security clearance applications. With the particular evidence that I have been provided, there is no excuse for this. I have been provided no reasonable excuse for the Applicant to have failed to reveal this information. Consequently, the evidence proves that the Applicant has not been completely honest with the Government regarding his arrest and financial history. I find that the Applicant deliberately failed to reveal this information to the Government.

The Government relies heavily upon the integrity and honesty of clearance holders. It is a negative factor for security clearance purposes when an Applicant has deliberately provided false information about material aspects of his personal background. This Applicant has not demonstrated that he is trustworthy, and does not meet the eligibility requirements for access to classified information. Accordingly, I find against the Applicant under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct).

The Applicant has not provided this Administrative Judge with sufficient evidence in mitigation that would negate the negative impact his falsifications have on his security worthiness. At this time, I cannot find that it is clearly consistent with the national interests to grant the Applicant a security clearance.

On balance, it is concluded that the Applicant has failed to overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraphs 1, 2 and 3 of the Government's Statement of Reasons.

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: Against the Applicant.

Subpara. 1.a.: Against the Applicant.

Subpara. 1.b.: Against the Applicant.

Subpara. 1.c.: Against the Applicant.

Subpara. 1.d.: Against the Applicant.

Subpara. 1.e.: Against the Applicant.

Subpara. 1.f.: Against the Applicant.

Subpara. 1.g.: Against the Applicant.

Subpara. 1.h.: Against the Applicant.

Subpara. 1.i.: Against the Applicant.

Subpara. 1.j.: Against the Applicant.

Subpara. 1.k.: Against the Applicant.

Subpara. 1.l.: Against the Applicant.

Subpara. 1.m.: Against the Applicant.

Subpara. 1.n.: Against the Applicant.

Subpara. 1.o.: Against the Applicant.

Subpara. 1.p.: Against the Applicant.

Subpara. 1.q.: Against the Applicant.

Subpara. 1.r.: Against the Applicant.

Subpara. 1.s.: Against the Applicant.

Subpara. 1.t.: Against the Applicant.

Subpara. 1.u.: Against the Applicant.

Subpara. 1.v.: Against the Applicant.

Subpara. 1.w.: Against the Applicant.

Subpara. 1.x.: Against the Applicant.

Subpara. 1.y.: Against the Applicant.

Subpara. 1.z.: Against the Applicant.

Subpara. 1.aa.: Against the Applicant.

Subpara. 1.bb.: Against the Applicant.

Subpara. 1.cc.: Against the Applicant.

Subpara. 1.dd.: Against the Applicant.

Subpara. 1.ee.: Against the Applicant.

Subpara. 1.ff.: Against the Applicant.

Subpara. 1.gg.: Against the Applicant.

Paragraph 2: Against the Applicant.

Subpara. 2.a.: Against the Applicant.

Subpara. 2.b.: Against the Applicant.

Subpara. 2.c.: Against the Applicant.

Subpara. 2.d.: Against the Applicant.

Subpara. 2.e.: Against the Applicant.

Paragraph 3: Against the Applicant.

Subpara. 3.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.

Darlene Lokey Anderson

Administrative Judge