DATE: March 18, 2004

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

APPEARANCES

FOR GOVERNMENT

Edward W. Loughran, Department Counsel

FOR APPLICANT

Edward O. Lear, Attorney At Law

SYNOPSIS

Applicant's financial indebtedness brought on by a divorce, serious medical problems, and a period of unemployment have been mitigated by a good faith effort to resolve his indebtedness. Clearance is granted.

STATEMENT OF THE CASE

On May 23, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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 a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on June 5, 2003, and requested a hearing before a DOHA Administrative Judge. This case was transferred to undersigned on December 23, 2003. A notice of hearing was issued on January 22, 2004, scheduling the hearing for February 18, 2004. At the hearing the Government presented nine exhibits. The Applicant presented three exhibits and he testified on his own behalf. The official transcript (Tr.) was received on February 27, 2004.

The Applicant is a 49 years old and single. He is employed by a defense contractor as a Help Desk Analyst 3 and is seeking to obtain a security clearance in connection with his employment.

The Government opposes the Applicant's request for a 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 admits to financial difficulties beginning in 1992, when he and his wife divorced. His wife ran up several of his credit card accounts that he was responsible for. In 1997/1998, he experienced serious health problems that caused him to undergo a series of heart surgeries that were complicated by infections. This brought on unexpected hospital bills and further indebtedness. His financial situation quickly grew out of control. The Applicant's health problems eventually caused him to lose his job. (See, Government Exhibit 5). During this period, the Applicant was forced to go on disability, which significantly reduced his income. This left the Applicant financially and emotionally torn apart.

The SOR alleges past due indebtedness to a credit card company in the amount of $3,331.00, (1.a. of the SOR). The Applicant claims that the debt is no longer owed. Applicant's most recent credit reports do not show the debt as owing. (See, Applicant's Exhibits A, B and C). The SOR also alleges debts to a hospital, (1.b., and 1.c. of the SOR) in the amounts of $207.00 and $97.00, debts to a medical center (1.e. of the SOR) in the amount of $978.00 for two delinquent accounts. Since September 2001, the Applicant has satisfied all of the outstanding debts alleged, except (1.d. of the SOR), a judgment entered against the Applicant by his past landlord in the amount of $1,307.90. The Applicant testified that he has made efforts to contact his past landlord to pay off the judgment, but he has not been successful. (Tr. pp. 26-27).

Since his return to work, the Applicant has returned to financial responsibility. He has paid off his outstanding bills, is current on all of his monthly expenses, has not generated any new debt, and now has a savings account accumulated for emergencies. He has also obtained secondary insurance for any medical bills he might incur in the future.

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent criterion. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on her own common sense. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

Conditions that could raise a security concern:

1. A history of not meeting financial obligations;

3. Inability or unwillingness to satisfy debts.

Conditions that could mitigate security concerns include:

1. The behavior was not recent;

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);

6. The individual has initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.

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 eligible for a security clearance. 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."

CONCLUSIONS

The Government must make out a case under Guideline F (Financial Considerations) that establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between Applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

In this case the Government has met its initial burden of proving that the Applicant has been financially irresponsible (Guideline F). 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.

Having considered the evidence in light of the appropriate legal standards and factors, and having assessed the Applicant's credibility based on the record, this Administrative Judge concludes that the Government has established its case as to all allegations set forth under Guideline F, and it has a direct impact on his suitability for access to classified information.

Circumstances beyond the Applicant's control, namely his divorce, health problems, and a period of unemployment, contributed to his financial indebtedness. Since returning to work, he has made a good faith effort to resolve his financial indebtedness. He has either paid off his outstanding debts or attempted to do so. His most recent credit report indicates that his financial affairs have been handled. Mitigating factors 1, 3 and 6 clearly apply in this case. The Applicant understands that he must continue a pattern of systematic payments toward each of his bills in the future in order to maintain his security clearance worthiness. Accordingly, Guideline F (Financial Considerations) is found for the Applicant.

FORMAL FINDINGS

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: For the Applicant.

Subparagraph 1.a.: For the Applicant

Subparagraph 1.b.: For the Applicant

Subparagraph 1.c.: For the Applicant

Subparagraph 1.d.: For the Applicant

Subparagraph 1.e.: For the Applicant

DECISION

In light of the circumstances presented by the record in this case, it is clearly consistent with the national interests to grant or continue a security clearance for the Applicant.

Darlene Lokey Anderson

Administrative Judge