DATE: October 20, 2005
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
DAVID S BRUCE
APPEARANCES
FOR GOVERNMENT
Richard R. Stevens, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant and his wife began experiencing financial difficulties in the early 1990's. They experienced two family tragedies during this time, and Applicant filed for bankruptcy relief in 1992 and 1994. Applicant has been regularly employed since June 2001. His current debts total over $60,000.00, which have accumulated over many years. Applicant has not attempted to resolve any of the debts directly with the creditors in any meaningful way. Clearance is denied.
STATEMENT OF THE CASE
On, November 8, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Review Program, dated January 2, 1992, as amended and modified (Directive), issued a Statement of Reasons (SOR) to Applicant alleging facts that raise security concerns addressed in the Directive under Guideline F - Financial Considerations. The SOR detailed why DOHA could not preliminarily determine under the Directive that it is clearly consistent with the national interest to grant or continue Applicant's request for a security clearance. By his answer executed November 30, 2004, Applicant admitted with explanations the allegations of subparagraphs 1.a - 1.d., 1.f., 1.g., 1.i. and 1.j. of the SOR, and denied the allegations of subparagraphs 1.e., 1.h., 1.k., and 1.l., and requested a hearing before an administrative judge.
The case was assigned to me on July 7, 2005, and I conducted the hearing on July 27, 2005. The government submitted exhibits (GE) 1 through 5, which were admitted without objection. Applicant testified at the hearing and offered exhibits (AE) A through C, also admitted without objection. At Applicant's request, the record remained open after the hearing for 15 days for him to submit additional documentation related to a specific aspect of the case. Applicant timely submitted a document for that purpose that was admitted as AE D, without objection from Department Counsel. DOHA received the hearing transcript (Tr.) on August 5, 2005.
FINDINGS OF FACT
Applicant's admissions to the allegations of the SOR are incorporated herein by reference. In addition, after a thorough review of the pleadings, transcript, and exhibits, I make the following findings of fact:
Applicant is 61 years old and has been married for 40 years. (1) He and his wife have three adult children, and at least four grandchildren. (2) They had two other younger children who both died ten or more years ago in separate tragedies when they were both minors. (3)
Applicant and his wife began experiencing financial difficulties in about 1990, and both have experienced intermittent periods of unemployment since then. (4) They filed for Chapter 7 bankruptcy protection in 1992, and for Chapter 13 bankruptcy protection in 1994. (5) Applicant completed a four year electrical engineering technology education program in 1999. (6)
Applicant has been working for a defense contractor since June 2001. (7) He also works part-time officiating high school football, and umpiring high school baseball games. (8) He served four years in the U.S. Air Force from 1962-1966, and he has never held a clearance. (9) He does not use illegal drugs and he has no criminal record. (10) Applicant also successfully endured heart by-pass surgery about a year ago. (11)
Applicant owes the following amounts to the creditors referenced in the SOR:
1. Student loan for his adult son - $7,330.49. (Subpara. 1.c. of the SOR)
2. Credit card account - $1,618.00. (Subpara. 1.d. of the SOR)
3. Collection account - $2,570.00. (12) (Subpara. 1.e. of the SOR)
4. Bank credit account - $2,177.00. (Subpara. 1.f. of the SOR
5. Credit card account - $787.00. (Subpara. 1.g. of the SOR)
6. Collection account - $4,784.00. (13) (Subpara. 1.h. of the SOR)
7. Credit card account - $1,563.00. (Subpara. 1.i. of the SOR)
8. Applicant's student loans - $38,501.00. (Subpara 1.j. of the SOR)
9. Collection account - $928.00. (14) (Subpara 1.k. of the SOR)
Applicant's total debt set forth above is $60,258.49.
In June 2005, Applicant paid $1,208.21 to pay his existing automobile loan in full. (15) This loan was not one of the debts listed on the SOR, and it was current when it was paid. (16) Payment of this debt was required as a trade-in condition of Applicant's purchase of a new vehicle. Applicant's payment for his new car is $475.00-$500.00 per month. (17)
When Applicant submitted his personal financial statement to the DSS investigator on May 23, 2003, he claimed he owned no material assets with the exception of his automobile, and that he and his wife had positive household income of $1,102.00 per month. (18) The financial statement reflected he was paying $457.00 per month at the time against four of their credit card debts, which payments were already considered by Applicant when he computed his monthly household income. Applicant indicated he would be using the additional money to pay some of his other creditors listed on the statement. (19)
POLICIES
Enclosure 2 of the Directive, Adjudicative Guidelines For Determining Eligibility For Access To Classified Information, sets forth the criteria which must be evaluated when determining security clearance eligibility. The adjudicative guidelines specifically distinguish between those factors that are considered in denying or revoking an employee's request for access to classified information (Disqualifying Conditions), together with those factors that are considered in granting an employee's request for access to classified information (Mitigating Conditions). By acknowledging that individual circumstances of each case are always different, the guidelines provide substantive standards to assist an administrative judge in reaching fair and impartial common sense decisions.
The adjudicative process requires thorough consideration and review of all available, reliable information about the applicant, past and present, favorable and unfavorable, to arrive at well- informed decisions. Section E2.2. of Enclosure 2 of the Directive describes the essence of scrutinizing all appropriate variables in a case as the "whole person concept." In evaluating the conduct of the applicant and the circumstances in any case, the factors an administrative judge should consider pursuant to the concept are: (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 voluntariness of the participation; (6) the presence or absence of rehabilitation and other pertinent 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.
Protecting national security is the paramount concern in reaching a decision in any case, and is dependent upon the primary standard that issuance of a clearance must be clearly consistent with the interests of national security. Granting an applicant's clearance for access to classified information is predicated on a high degree of trust and confidence in the individual. Accordingly, decisions under the Directive must include consideration of not just the actual risk of disclosure of such information, but also consideration of any possible risk an applicant may deliberately or inadvertently compromise classified information in any aspect of his or her life. Any doubt about whether an applicant should be allowed access to classified information must be resolved in favor of protecting classified information. (20) The decision to deny a security clearance request to an individual is not necessarily a determination of the loyalty of the applicant. (21) It is merely an indication the applicant has not met the strict guidelines established by the Department of Defense for issuing a clearance.
In accordance with the Directive, the government bears the burden of proof in the adjudicative process to first establish conditions by substantial evidence which indicate it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. (22) The legal standard for the burden of proof is something less than a preponderance of the evidence. (23) When the government meets this burden, the corresponding heavy burden of rebuttal then falls on the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the position of the government, and to ultimately demonstrate it is clearly consistent with the national interest to grant or continue the applicant's clearance. (24)
CONCLUSIONS
Under Guideline F, a security concern exists when a person has significant delinquent debts. An individual who is financially overextended is at risk of having to engage in illegal or unethical acts to generate funds to meet financial obligations. Similarly, an individual who is financially irresponsible may also be irresponsible, unconcerned, or careless in their obligation to protect classified information. Behaving responsibly or irresponsibly in one aspect of life provides an indication of how a person may behave in other aspects of life.
Based on all the evidence, Financial Considerations Disqualifying Condition (FC DC) E2.A6.1.2.1 (A history of not meeting financial obligations), and E2.A6.1.2.3 (Inability or unwillingness to satisfy debts), apply in this case. I have considered all the Financial Considerations Mitigating Conditions (FC MC), and specifically considered FC MC 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), and FC MC E2.A6.1.3.6 (The individual initiated a good faith effort to repay overdue creditors or otherwise resolve debts). I conclude neither apply to this case.
Applicant and his wife began encountering financial difficulties in about 1990 as a two-income family. Due to unexpected personal tragedies the family experienced, Applicant's wife did not work steadily during the early and mid-1990s, and Applicant himself also endured brief periods of unemployment from time to time. They sought relief by filing two bankruptcy petitions in 1992 and 1994, however, Applicant was unable to definitively state or provide documentation as to the outcome of either case. (25)
As of 1997, the family relocated to another state to find better employment opportunities and Applicant and his wife resumed working full time. (26) In spite of consistent work histories since then, Applicant has made little attempt to contact his creditors, set up payment plans, or discuss his delinquent accounts with his creditors over a long period of time. Applicant submitted he has been paying about $300.00 per month for the last year or so against his substantial education loan. (27) He completed his education program in 1999, and this loan then totaled about $35,000.00. (28) The amount of this debt at the time of the hearing about six years later was $38,500.00. Applicant was given an additional 15 days from the hearing for his benefit to provide verification of his present payment arrangements with this creditor together with a history of his payments. (29) Applicant submitted a document following the hearing, (30) but it had no relevance to the requested information. Applicant submitted no documentation at all to indicate he has any payment plans in place with any of his creditors. The only proof of payment he provided was for full payment of his old automobile loan in June 2005, required to be paid to be able to trade in his old car for a new one. (31) The debt on his old car was not a part of the allegations of the SOR, and it is reasonable to conclude Applicant kept this loan current. Applicant has made no effort to satisfy even a modest amount of the delinquent debts he acknowledges are his responsibility. His deliberate and irresponsible inattention to his and his wife's debts causes great concerns, particularly considering he has ignored the debts when he has had an ability in recent years to begin making payments on some of them.
I have also considered FC MC E2.A6.1.3.4 (The person has or is receiving counseling for the problem and there are clear indications that the problem is being resolved or is under control), and conclude it does not apply. Applicant never sought or received any credit counseling.
I have further reviewed all the record evidence in this case with respect to the "whole person" concept required by the Directive in evaluating Applicant's vulnerability in protecting our national security. Although Applicant's loyalty to the United States is not in question in this case, I am persuaded by the totality of the evidence that it is not clearly consistent with the national interest to grant Applicant a security clearance. For the reasons stated, Applicant has not met the strict guidelines established by the Department of Defense for issuance of a clearance, and he has failed to mitigate the security concerns regarding the financial issues raised in this case. Accordingly, Guideline F is decided against Applicant.
FORMAL FINDINGS
In accordance with Section E3.1.25 of Enclosure 3 of the Directive, the following are the formal findings as to each allegation in the SOR:
Paragraph 1. Financial Considerations (Guideline F) AGAINST THE APPLICANT
Subparagraph 1.a. Against the Applicant
Subparagraph 1.b. Against the Applicant
Subparagraph 1.c. Against the Applicant
Subparagraph 1.d. Against the Applicant
Subparagraph 1.e. Against the Applicant
Subparagraph 1.f. Against the Applicant
Subparagraph 1.g. Against the Applicant
Subparagraph 1.h. Against the Applicant
Subparagraph 1.i. Against the Applicant
Subparagraph 1.j. Against the Applicant
Subparagraph 1.k. Against the Applicant
Subparagraph 1.l. Against the Applicant
DECISION
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 Applicant. Clearance is denied.
David S. Bruce
Administrative Judge
1. GE 1 (Applicant's Security Clearance Application (SF 86) dated February 5, 2002), at 1 and 10.
2. Tr. at 23, 24, and 28.
3. Id., at 23.
4. GE 2 (Applicant's statement to Defense Security Service Special Agent dated Mary 23, 2003), at 1.
5. Tr. at 28-29.
6. GE 1, supra note 1, at 1. See also Tr. at 48.
7. GE 1, supra note 1, at 8.
8. Tr. at 26 and 46.
9. GE 1, supra note 1, at 7.
10. Id., at 4-6.
11. Tr. at 25.
12. Applicant is not familiar with this account but it appears on his latest credit report. See GE 5 (Credit report dated July 1, 2005), at 2.
13. Applicant is not familiar with this account but it appears on his latest credit report. See GE 5, supra note 12, at 3.
14. Applicant is not familiar with this account but it appears on his latest credit report. See GE 5, supra note 12, at 2.
15. AE B (Payment receipt dated June11, 2005).
16. Tr. at 43.
17. Id., at 44.
18. GE 2, supra note 4, at 4.
19. Id.
20. Directive, Enclosure 2, Para. E2.2.2.
21. Executive Order 10865 § 7.
22. ISCR Case No. 96-0277 (July 11, 1007) at p. 2.
23. Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).
24. ISCR Case No. 94-1075 (August 10, 1995) at pp. 3-4; Directive, Enclosure 3, Para. E3.1.15.
25. Tr. at 28-29.
26. GE 2, supra note 4, at 1.
27. Tr. at 33-35.
28. Id., at 36.
29. Id., at 49-51.
30. AE D (Letter dated February 19, 2004).
31. AE B (Payment receipt dated June 11, 2005).